Central Oklahoma Milk Producers Association

CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 419 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 International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organization within the meaning of the Act 2 By discriminating in regard to the hire and tenure of employment of the employees named above, in the section entitled, "The Remedy," thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act 3 By engaging in the conduct set forth in section III, C, 1, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 The Union on Jun 3; 1958, was and at all times thereafter has been the exclu- sive bargaining representative of all employees in the unit found to be appropriate in Case No 10-RC-4122, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 By refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit, beginning June 13, 1958, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication I Central Oklahoma Milk Producers Association and Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 886. Case No 16-CA-1188 November 30, 1959 DECISION AND ORDER On July 17, 1959, Trial Examiner Lloyd Buchanan issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto Thereafter, Respondent filed excep- tions to the Intermediate Report and a supporting brief i 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 Fanning] The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed 2 i The Respondent also requested oral argument As the record exceptions, and brief adequately present the issues and the position of the parties, the request for oral argu ment is denied 2 At the outset of the hearing, the Trial Examiner overruled Respondent's motion for copies of pretrial statements of all persons interviewed by the General Counsel Respond- ent excepts to this ruling Under the rule enunciated by the Board in Re Rich Manufac turnip Corporation, 121 NLRB 700, Respondent was entitled to demand such pretrial statements only after the declarants had testified at the hearing As they had not yet testified when the motion was made Wb find the exception to be without merit The Respondent contends (1) that the amended complaint is defective because it was not signed by the General Counsel, (2) that it was served 4 days prior to the hearing, 125 NLRB No 56 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings, except as noted below, are hereby affirmed. The Board has considered the Intermediate Report, the exceptions 3 and brief,. and the entire record in the case, and adopts the fuidings, conclusions,, and recommendations of the Trial Examiner, with the modifications set forth below. Like the Trial Examiner, we find that the discharge of the drivers occurred under the following circumstances. On the night of October 23, 1958, approximately 12 4 of the Respondent's bulk tank drivers presented demands for shorter hours and higher wages to Parham,, associate traffic manager for the Association. After Parham stated he had no authority to grant their demands, the drivers refused to go out on their scheduled runs. After checking with a number of the drivers to ascertain whether any of the drivers would work, Parham remarked that "as far as I am concerned, you boys are looking for another job." The following morning, October 24, three of the strik- ing drivers, accompanied by Booker, Teamster business representa- tive, met briefly with Parham and then with Bailey, the traffic man- ager, who requested they return and meet with the board of directors that afternoon. Four of the striking drivers, along with two union representatives, met that afternoon with the Respondent's board of directors. At the meeting, Booher told members of the board of di- rectors that he represented the striking drivers and requested that they recognize the Union or consent to an election. He also indicated that the striking drivers would return to work pending negotiation of their demands. Wolfe, president and spokesman for the board of contrary to Board's rules which require service of a complaint 5 days prior to a scheduled hearing, and (3) that the Trial Examiner improperly refused to subpena the field examiner who investigated the case. As to (1), the Regional Director has been delegated authority to issue complaints on behalf of the General Counsel. As to (2), the Trial Examiner offered to consider a motion by the Respondent for a continuance if the Respondent felt it had been prejudiced by not being timely served. Inasmuch as the Respondent failed to avail itself of the opportunity to secure a continuance, it is deemed to have waived any objections to the deficiency in service. As to (3), the Trial Examiner refused to subpena the field examiner after a representation by the General Counsel that, if the field examiner were subpenaed, he would appear but would refuse to produce records or testify at the hearing. The Trial Examiner erred in refusing to grant a subpena for the field examiner since issuance of subpenas is mandatory and not discretionary. The only dis- cretionary function in connection with subpenas is the determination to either grant or refuse the petition to revoke. Nylon Molded Products Corp., 116 NLRB 73, footnote 3. However, the Respondent's only purpose in seeking the subpena was to show that the field examiner permitted improper use of certain evidence furnished to him by the Re- spondent. As we do not rely on such evidence, the Trial Examiner's erroneous ruling was not prejudicial. Accordingly, there is no reason for granting any relief from the Trial Examiner's ruling. 3 Respondent excepted to (1) the Trial Examiner's finding that the strikers are not exempt from the Act as "agricultural laborers" and (2) the finding that the Respondent Association meets the jurisdictional criteria established by the Board. As to (1) the Respondent cites the rider to the Board's current appropriation Act wherein the Board is precluded from processing cases involving agricultural laborers as defined in Section 3(f) of the Fair Labor Standards Act. We find no merit in the contention for the reasons set forth in Wells Dairies Cooperative, 107 NLRB 1445, 1446-1447. As to (2), we are satisfied that the Respondent meets the Board's jurisdictional standards for the reasons stated in the Intermediate Report. 4 Two other drivers joined the strike the following day, making a total of 14 on strike. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 421 directors, declined to recognize the Union or consent to an election, and stated, "At this point we have no further use for these employees." As the meeting with the board of directors adjourned, Bailey, the traffic manager, handed checks to four of the drivers present and told them to tell the other drivers that they could pick up their checks. Bailey testified later that he would not have issued the checks but for the fact that one of the drivers had requested his check and he there- fore ordered checks prepared for all the drivers who had not taken out their trucks the night before so that they would be available if the drivers wanted them. Bailey admitted that it was customary for the Respondent to give to employees who had quit their final check in full on their last day of work. However, he denied that the checks issued to the striking drivers were final checks, stating that he did not know whether the men had quit. The Respondent's pay records indicate that the striking drivers were still carried on the payroll. Only the normal deductions were made from the drivers' checks and no deduc- tions were made for credit union debts nor was there any distribution of the employees' share in the pension fund in accordance with the usual policies of the Respondent. The Trial Examiner concluded, however, that the issuance of the checks corroborated the other evi- dence cited above that the strikers were discharged. Three of the striking drivers returned to work on October 31, November 9, and November 15, 1958. Sewell, the first driver who sought to return to work, was required to fill out another employment application form and was told that he had to be approved by three of the four members on the Respondent's hauling committee before he could return to work. He was subsequently approved and put back to work. The two other drivers also had to fill our similar applica- tion forms and be approved for employment. On or about November 28, Booher met with Respondent's attorney and a tentative agreement was reached whereby the 'Respondent agreed to find a job for Pearl, one of the strikers, and place the remaining strikers on a preferential hiring list subject to future hiring needs. At a meeting on December 3, 1958, the striking drivers rejected this proposal. It is undisputed that by November 28, all job vacancies had been filled. Thereafter four other drivers, Pearl, Kirk, Kappel, and Dugger, applied for reinstatement on December 5, 13, 13, and 15, respectively, but were denied reinstatement. The Trial Examiner concluded that the Respondent had violated Section 8(a) (3) of the Act by discriminatorily discharging 14 eco- nomic strikers prior to their replacement and ordered reinstatement and backpay from the date of their request for reinstatement. We agree with the Trial Examiner's conclusion that these strikers were discriminatorily discharged before they were permanently replaced. We find that the statements of Parham and Wolfe to the effect that the 5358218-60-vol. 125-2,8 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment of the strikers was terminated, the requirement that strikers fill out employment application forms anew, and the fact that reemployment was contingent upon approval by the Respondent's hauling committee, conclusively establish that the strikers were dis- criminatorily discharged and were, in effect, considered as new appli- cants for employment. However, unlike the Trial Examiner we do not rely on Bailey's issuance of checks to the strikers to establish the discriminatory dis- charges, but conclude that the circumstances 'surrounding the issuance of checks are too equivocal to be entitled to any weight. As we do not rely on the checks as evidence of discharge, we deny Respondent's motion to reopen the record for additional evidence on this point. THE REMEDY The record shows that the dischargees were on strike at the time of their discharge. They are entitled to backpay from the date they abandoned the strike and were available for employment, notwith- standing that they were replaced while still on strike.5 The record further establishes that Pearl, Kappel, Kirk, and Dugger abandoned the strike when they applied for reinstatment on December 5, 13, 13, and 15, respectively. We shall therefore order the Respondent to reinstate the four employees mentioned above and make them whole for any loss of wages suffered since their application for reinstate- ment. There is no evidence that the remaining strikers have given up the strike and are available for employment. We shall therefore order that the Respondent, upon application, offer such remaining strikers 16 reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace them. We shall also order that, in the event of the Respondent's refusal, if any, to reinstate them upon request, that the Respondent make whole those dischargees, by payment to each of them a sum of money equal to that which he would normally have earned as wages during the period from 5 days after the date on which he applies for reinstatment, to the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. 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, Central Okla- 6 Morris Fishman & Sons, Inc., 122 NLRB 1436 ; Ford Radio & Mica Corporation, 115 NLRB 1046, 1049. o Ross, Sewell , Ledford, and Ingersoll are excepted from this order. The first three named were reemployed upon application, while Ingersoll had resigned prior to the strike. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 423 homa Milk Producers Association, Oklahoma City, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 886, or in any other labor organization, by discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of em- ployment except as permitted by the proviso to Section 8 (a) (3) of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act: (a) Offer to Walter J. Pearl, A. D. Kappel, Kyle K. Kirk, and Hoyt S. Dugger immediate reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy," dismissing, if necessary, any employees hired to re- place them. (b) Upon application, offer to Clifford Sehie, Edwin Fowler, D. R. Coles, David Stromski, Robert I. Steffen, and Neuton Canada, reinstatement to their former or substantially equivalent positions without projudice to their seniority or other rights and privileges in the manner set forth in the section of this Decision entitled "The Remedy," dismissing if necessary any employees hired to replace them, and make each of them whole for any loss of pay suffered by him as a result of its failure to reinstate him within 5 days after his unconditional application for reinstatement. (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and appropriate to facilitate the checking of the amount of backpay due and the reinstatement rights of the above-named employees. (d) Post at its plant in Oklahoma City, Oklahoma, copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after having been duly signed by the Association's representa- IIn 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." 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive, be posted by the Association immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Associa- tion to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 886, or any other labor organization, by discharging any of our employees or discriminating in any other manner in respect to their hire and tenure of employment, or any term or condition of employment. WE WILL NOT in any other manner interfere With, restrain, or coerce our employees in the exercise of the right to self -organiza- tion, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 886, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Walter J. Pearl, A. D. Kappel, Kyle K. Kirk, and Hoyt S. Dugger immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing if necessary any employees hired to replace these employees, and make them Whole for any loss of pay suffered as a result of the discrimination against them. WE WILL offer to the employees listed below, upon their appli- cation, reinstatement to their former or substantially equivalent CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 425 positions without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired 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. Clifford Sehie Edwin Fowler D. R. Coles David Stromski Robert I. Steffen Neuton Canada All of our employees are free to become, remain, or to refrain from becoming or remaining members in good standing in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 886, or any other labor organization, except to the extent that this right may be affected by an agreement in conform- ity with Section 8 (a) (3) of the Act. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, clef aced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein, as amended, alleges that the Association has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 61 Stat. 136, by discharging and refusing to reinstate, because of their concerted activities and after they had gone on strike and then applied for reinstatement prior to their perma- nent replacement, John Ingersoll, Clifford Sehie, Edwin Fowler, D. R. Coles, Walter J. Pearl, A. D. Kappel, Kyle K. Kirk, Hoyt S. Dugger, David Stromski, R. D. Ross, Robert I. Steffen, Neuton Canada, Max Sewell, and J. C. Ledford; and Section 8(a) (1) of the Act by said alleged acts, by interrogation of employees on October 23 concerning their feelings and support of the concerted activity, and by statements to the employees and their representatives on October 23 and shortly before the dis- charges on October 24 that those employees who had engaged in the concerted activities would no longer be employed by the Association. The answer, as amended, denies both the jurisdictional and the unfair labor prac- tice allegations. The answer further interposes numerous allegations as defenses on various grounds. These were covered by motions at the hearing and by the proof received. We shall here consider the defenses and motions which relate to the question of jurisdiction; we need not repeat what was accomplished at the hearing with respect to the other motions. A hearing was held before me at Oklahoma City, Oklahoma, on March 24 and 25, 1959. Pursuant to leave granted to all parties, the time to do so having been ex- tended, a brief has been filed by the General Counsel and a brief and proposed find- ings of fact and conclusions of law by the Association. Of said proposed findings and conclusions, one and five are adopted to the extent that they are consistent with the findings and conclusions herein; eight is rejected as unnecessary, and all others are rejected. The findings and conclusions herein include all of the relevant issues presented by the record in the light of the law involved. On May 18 I received from the attorney for the Association a motion to reopen hearing for the introduction of newly discovered evidence. The motion paper is hereby marked Trial Examiner's Exhibit No. 1, and the motion is denied for the reasons noted infra. Upon the entire record in the case, and from my observation of the witnesses, I make the following: 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT (WITH REASONS THEREFOR) I. THE ASSOCIATION'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was stipulated and I find that the Association is a cooperative milk marketing association composed only of dairy farmers; it is incorporated under the Cooperative Marketing Association Act, 1937, State of Oklahoma, as amended; the Association is engaged in the business of representing dairy farmers as bargaining agent in the marketing of milk produced by dairy farmer members and in the business of pro- viding services to such members; approximately one-half of the milk produced by the membership is picked up by bulk milk transport trucks, which trucks are under the control of the Association, and transported to customers, to which the Association as bargaining agent for members, individually and collectively, consigns the milk; the other approximately one-half of the milk produced by the members is trans- ported in 10-gallon cans by independent contractors, contracted by the individual member to customers of the individual member; all milk produced by any member of the Association is subject, however, to consignment by the Association; the Asso- ciation does not transport any of the milk transported in 10-gallon cans, nor does it transport all of the milk which is transported by bulk transport tanks; those of the bulk milk transport trucks which are under the control of the Association are cus- tomarily operated by the employees of the Association; and the employees of the Association does not engage in milk production on the farm as part of such employment. It was further stipulated and I find that Meadow Gold Dairy of Oklahoma City is a division of Beatrice Foods Company, whose central office is located in Chicago, Illinois; that Meadow Gold retail and wholesale sales both exceed $1,000,000 per year, and the entire output of its Oklahoma City plant is sold within the State of Oklahoma; during the 12 months immediately preceding the hearing Beatrice pur- chased from the Association milk valued at more than $1,000,000, in accordance with the procedure described above, and issued its checks in payment for such milk directly to the Association, which then disbursed the total amount to the producers of such milk. It was further stipulated and I find that The Borden Company in Oklahoma City processes milk and manufactures ice cream, which it distributes within the State of Oklahoma; this operation is in the southern division of The Borden Company, with divisional offices in Houston, Texas; it is the policy of this division to operate on a decentralized basis; The Borden Company is a New Jersey corporation; in its Okla- homa operations, Borden had no dollar volume sales outside the State of Oklahoma during the preceding year; its gross sales of fluid milk processed at Oklahoma City in 1958 and sold in Oklahoma were more than $3,000,000 wholesale and more than $1,000,000 retail; The Borden Company's purchases from the Association during the preceding year totalled more than $1,000,000, in accordance with the procedure described above, and Borden issued its checks in payment for the milk so purchased to the Association directly, which then disbursed the total amount to the producers of such milk. It was further stipulated and I find that in 1958 the Association purchased, as agent for its members, farm bulk tanks, pipe line dairy equipment, clay stalls, and pipeline and bulk tank supplies and equipment in the following amounts from the following out-of-State companies: Consumers Coop., Kansas City, Mo________________________ $41, 179. 88 Sunset Equipment Co., St. Paul, Minn----------------------- 93, 398. 39 Blackburn Stainless Steel, Downey, Calif-------------------- 57, 391. 65 Lazarus Laboratories, Dallas, Tex__________________________ 152. 00 Volrath Co., Sheboygan, Wis______________________________ 374. 09 Nelson Wholesale Service, Brownwood, Tex ------------------- 599. 00 Clay Equipment Co., Cedar Falls, Iowa______________________ 7,563.98 J. C. Marlow Milking Co., Mankato, Minn------------------ 580. 12 L. C. Thomsen & Son, Kenosha, Wis________________________ 2,917.98 Total purchases____________________________________ $204,146.09 These purchases were made by the Association as agent for the individual members, and the delivery of the equipment so purchased was made in some cases to the office of the Association for delivery to the member and in some cases directly to the mem- ber; mortgages and other evidence of indebtedness for the equipment were exe- cuted by the individual in each case, none of this equipment being purchased for the use of the Association itself; the Wichita Bank for Cooperatives financed a majority of this equipment for the individual members, and the Association executed CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 427 a written guarantee to said bank as a blanket guarantee for the payment by in- dividual members. The Association's bylaws describe it as a "non-profit cooperative agricultural as- sociation." As was pointed out at the hearing, our concern is with the provisions of the Act before us and not with those incidents of organization which may warrant issuance of a charter by the Secretary of Agriculture; and further that Section 2(2) of the Act does not exclude agricultural corporations, in contrast with Section 2(3) which excludes agricultural laborers. Distinction may again be seen in the Capper- Volstead Act, 42 Stat. 388, cited by the Association, which refers to "Persons engaged in the production of agricultural products as . . . dairymen," and associa- tions formed for "collectively processing, preparing for market, handling, and mar- keting in interstate and foreign commerce, such products of persons so engaged." The drivers are not employed by farmers but by the Association, which makes a flat deduction with zone variations to cover the cost of transportation; neither, as we have noted, are the drivers employed in the production of the milk which they transport. An agricultural business may have agricultural and nonagricultural em- ployees. The exemption in Section 2(3) does not exclude the latter.' Although some of the milk is transported by independent contractors, all of it is subject, as noted, to consignment by the Association, which bargains concerning it as bargain- ing agent for its members and provides other services for them. It is clear that the Association's activities are not merely agricultural however much they may be regarded as connected with agricultural pursuits within the func- tions of the Secretary of Agriculture. Were a contradiction established by the evi- dence between the policies of the United States Department of Agriculture and this Act, I should still find that under the Act and the cases the Association's drivers are employees under the Act and that we have jurisdiction over the Association as an employer. But to whatever extent the Association is treated as an agricultural co- operative, there is no contradiction in finding that the drivers are not agricultural employees within the exception in Section 2(3). I find that the Association during a representative 12-month period sold milk to The Borden Company and other milk companies directly engaged in interstate commerce within the meaning of the Act, and in the course of said sales received revenue in excess of $50,000 annually; that the Association received goods and ma- terial, more than $5,000 of which was shipped in interstate commerce to its plant in Oklahoma City from points outside the State of Oklahoma; and that the Associa- tion is engaged in commerce within the meaning of the Act. Besides proof of its organization, the evidence shows that the Union undertook to represent drivers in connection with their terms and conditions of employment. I find that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES According to the testimony the Association, on October 23, 1958, employed some 15 milk truckdrivers, who picked milk up from the producers at the farm, pumping the milk from the farmers' tanks into the truck and then driving their trucks to the processors, where the milk was delivered. The drivers left on their routes between midnight and 7 a.m., this varying with the route. They did not take their trucks out on the morning of October 24. On the evening of the 23d, about a dozen met at the plant and decided to strike for higher wages and shorter hours. A list of de- mands was prepared and signed by some of the drivers and put on Parham's desk, he being the associate manager in charge of transportation and the drivers' supervisor. About 10 of the men met with Parham in his office in the warehouse when he arrived shortly after midnight. He explained that he did not have authority to negotiate their demands but would try to get in touch with Bailey, manager of the Association. Parham then allegedly told the drivers or some of them, "As far as I am concerned, you boys are looking for another job," and followed this by asking three of the men whether they would take their trucks out. The three replied in the negative, saying that they were with the group. Parham, who did recall asking the men for their uniforms, denied that he made the statement attributed to him or any other which could be construed as terminating the drivers' employment. That he did make that statement is further indicated by driver Pearl, who testified to that when asked on cross-examination whether Parham had said that he was fired. Pearl declared that Parham did not say that he was fired, thus indicating his own under- standing of the statement which he testified was made by Parham. Drivers Ledford, Sewell, and Ross similarly testified that Parham did not say anything about their 1 ZVell8 Dairies Cooperative, 107 NLRB 1445. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being terminated. Kappel, like Pearl and Ingersoll, testified that Parham made the statement to the effect that they were looking for another job. The construction placed by some employees on that statement does not lessen its general tendency to interfere. Parham's testimony concerning the hiring of replacements was ad- mittedly unreliable; nor do I credit his explanation for asking for new applications when the drivers returned to work, infra. I find that late in the evening of October 23 or more probably early on the morning of the 24th Parham did tell the drivers that as far as he was concerned they were looking for another job. Leaving for the present the issue of Parham's authority and the question whether his statement constituted discharge of the strikers, he supervised the drivers in the performance of their work, and that statement reasonably tended to interfere with their lawful concerted activities. While concluding as a matter of law that the state- ment tends to interfere, we can understand that some employees might not so con- strue it, giving it literal emphasis and concluding that Parham misunderstood in apparently thinking that they were looking for other jobs. As for the interrogation, Parham testified that he asked each of the drivers in order to find out which ones would take the trucks out on their scheduled routes, and that he then called supervisors to serve as replacements. I find no unlawful interrogation here. The other acts alleged as interference are also claimed to have been discriminatory: they will be considered in the latter aspect, interference being derivative from any discrimination found. The drivers next went to the Association's garage, called the Union, and waited until Booher, the Union's assistant business representative, arrived at about 7:45 a.m. Booher and three of the drivers, Sehie, Fowler, and Ingersoll, then went to the office to see Graham, the Association's executive secretary. They spoke first with Bailey and then with Graham, Booher telling the latter that the Union represented the employees, who would return to work if the Association would recognize the Union or consent to an election. Graham replied that he could not do either of those things, but that a board of directors' meeting had been called for about noon and the Association would be in a position to reply if Booher returned at 3 o'clock that afternoon. Booker's offer to return to work, made on behalf of the strikers, was conditioned on recognition or consent to an election; the allegation of refusal to reinstate must be 2 dismissed, and the strikers' entitlement to backpay, if any, does not run from that time. Nor is there any issue here of unlawful refusal to bargain, it appearing only that of the 14 alleged discriminatees 8 had signed union member- ship cards as of November 1, 1958. The extent of an appropriate unit has not been established and refusal to bargain is not alleged. Still in the morning and before the directors met, Bailey instructed the office to draw up paychecks for all who had struck the night before. He explained that someone (he assumed it was Ingersoll) had requested his check through another employee. The normal pay period would have ended 8 days later, on November 1, and the pay date would normally have been November 5. At 3 p.m. Booher, Lair, vice president of the Union, and five of the drivers met with the directors of the Association. To Booher's request for recognition or an election, Wolfe, chairman of the board of the Association, replied that they "did not feel that the Association came under the jurisdiction of the National Labor Relations Board." Whether Wolfe added that "at this point they had no further use for these employees" is disputed and will be considered infra. After Lair said that the Association "might be sorry in a few days if they tried to run the trucks them- selves," the discussion continued in a friendly manner and the directors welcomed the Union to come back at any time. Lair's statement did not prompt Wolfe's remark or any of the other acts by Association representatives, noted herein, nor was it regarded as a threat which affected reinstatement. Certain other events should be noted chronologically for the light which they cast on the issues raised. Sewell, the first driver to return to work, and an Association witness, testified that he called Parham a few days after October 24, and Parham said that he did not know for sure whether he could use Sewell; the board of directors' hauling commit- tee has his hands tied. Sewell went to see Bailey the next morning and, at his own request after Bailey said that he could not take him on at that time, received the names of Wolfe, Carter, Stanford, and Frye, the members of the hauling committee. Sewell called the latter two, who told him that Bailey had talked with them about him after he had spoken with Bailey that morning and that three-fourths of the hauling committee members would have to approve his request to return to work on his former or another route. Those two told him that they approved, and 2 As was stated in an off-the-record discussion and then noted on the record, the General Counsel disclaims reliance on any general request for reinstatement on October 24. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 429 Sewell then went to see Carter, who told him that he would call Bailey. Sewell next went to see Parham, who talked with Bailey and Graham, and Sewell thereupon. went back on a regular and equivalent but not his former route. Ledford, who arrived at the plant at 4 a.m. on October 24 and joined the strikers ony after he was told that all had walked out, called Parham and told him that lie needed a job; Parham replied that he would meet with someone and then call Ledford back, which he did that evening. Asked to return to work the next morning, Ledford explained that he could not; he did return to the same type of work and at the same wages 2 days later, on November 9. About the end of November, Booher and counsel for the Association discussed the possibility of settling the difficulties which had arisen. But a proposal by Booher and acceptance thereof by the Association prior to approval of the striker principals cannot constitute a waiver of the rights to reinstatement. Neither, on the other hand, is it claimed that all of the strikers or certain ones of them were at that time or by such proposal by Booher seeking reinstatement .3 It has been stipulated that appli- cation to return to work was made to the Association by Pearl on December 5,4 by Kirk and Kappel on December 13, and by Dugger on December 15; that Sewell, Ledford, and Ross returned to work on October 31 and November 9 and 15, respec- tively, "prior to the time all permanent replacements were hired" (it does not appear nor is it claimed that these three applied before their return or that they are entitled to backpay); that all of the drivers' positions were filled between October 28 and November 16; and that none of the other alleged discriminatees has applied for reinstatement. While the point has been mentioned, there is no reliable and suffi- cient evidence that the strikers' requests to return were not bona fide. If they were told that their rights or remedy as strikers depended on a request for reinstatement, that statement of the law and their subsequent requests do not prove bad faith or bar the remedy. As we seek to appraise these various acts, it must be found that Parham and Bailey were the Association's supervisors with whom the employees had contact, and that, placing these two supervisors in such positions, the Association was responsible for their words and deeds and the effect of those words and deeds on the employees. It avails nothing to argue that Graham, the Association's executive secretary and "the last thing between the organization and the Board of Directors," did not termi- nate or authorize termination of the employment of these 14; he testified that the men were still employed on October 24. The bylaw provision which authorizes Graham to dismiss employees does not itself bar delegation of that authority; nor is any alleged confinement of authority a defense to its exercise by other supervisors and even by the chairman of the board of directors. The facts found and noted supra, which we shall now analyze, speak more loudly than denials of Parham's and Bailey's authority and exercise of authority. Further, even had these acts not been within the scope of their authority, no Association official stepped in at this point so to inform the strikers or to advise them that Parham's and Bailey's acts were unauthorized. So far from any such disavowal, it appears rather that Parham and Bailey did not act beyond the scope of their authority and that the directors of the Association themselves discharged or ratified the discharge of the strikers. S Also in the Association's favor is the declaration, noted on the record several times and contrary to one of the allegations of the complaint, that we need not consider whether the strike herein was converted into an unfair labor practice strike; there is no longer any claim that the Association is liable for the effect of any such conversion. The right to backpay and reinstatement here does not depend on conversion to an unfair labor practice strike, but steins from the discharge of the strikers before they were replaced. Off-the-record discussions were held at various times and summarized on the record when they resulted in stipulations or accepted concessions such as this one, at con- siderable saving of time and without protest. The record is replete with stipulations prepared in off-the-record discussion. It is therefore difficult to understand the statement in the Association's brief, "It is unfortunate that these off-the-record discussions were not on the record." The brief continues by claiming assurance that there is an 8(a) (3) charge, and then cites a statement made on the record by the Trial Examiner with respect to the conversion of the strike and limitation to the issue of discharge before replace- ment ! The hearing continued with testimony on the latter issue, some of which is cited in the Association's brief. Again criticizing "this procedure," the brief later admits that "as to this one point, it is not fatal." Experience indicates the wisdom of avoidance of formal, extended, and repeated discussions on the record, with opportunity to have noted all that is relevant. 4 The Association's offer of a job, communicated to Pearl on December 3, was condi- tional. He was not reinstated when he applied on December 5. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Returning strikers approached Parham for reinstatement, and they were referred to him in that connection. It was Parham also who told the strikers on October 24 to turn in their ticket books and to return their uniforms. The books were needed by replacement drivers to pick up milk on the routes. But the direction that the uniforms be turned in indicated termination of employment and was a further measure of Parham's authority even if some had not been turned in as late as the time of the hearing, of which more infra. As strikers sought to return to work, Parham had them fill out new applications for employment. He explained that he "just had them do it on (his) own, to get additional information, if there was any, for the records." To make sure that the office was fully informed concerning changes in number of dependents and address (such data is called for directly on W-2 forms, which Parham did not again obtain), he had the strikers fill out the entire employment application form. There is adequate basis for finding that Parham, who admittedly was a supervisor and had authority to recommend discharge but allegedly could not himself discharge drivers, was placed in position to indicate that he had the greater authority. Nor can it be properly argued that the Association is not bound by his action when he undertook to discharge the drivers. Certainly, as noted, they were not told Parham's authority was thus limited and that such acts by him were or would be beyond his authority; and as we have just noted, they applied to him when they sought to return to work. As for Bailey, we have seen that he was told that one of the drivers had requested his check, and he had assumed that it was Ingersoll. When the representatives of the drivers or some of them left the meeting on the afternoon of October 24, Bailey handed checks to four of the five drivers who attended (handing Ingersoll his check, Bailey did not ask whether he wanted it; nor did he the others), and told them to tell the others that their checks were ready and that they should come and get them. He sent the checks to the warehouse, where they were placed in the respective timeclock slots. Even a request for his check by or on behalf of one of the strikers would not explain preparation of checks for the others with only 4 days of the 2-week working period gone, and notice that they come for them. In view of Ingersoll's resignation and his imminent termination 5 it is understandable that Bailey assumed that the request for a check was from him. But Ingersoll's was a unique situation, and payment to him would not set a pattern for the Association to follow with respect to the other drivers. While the Association pays men when they quit, it is clear that the strikers had not quit; Bailey testified that he did not know whether they had, and he would assume that they were not coming back if they had not after 12 days. To treat them prior to their replacement as having quit is discriminatory. Bailey testified further that men were given their checks ahead of time whenever they wanted them prior to going on vacation. But mentioning such accommodation several times, he cited only cases of. request when going on vacation, and later, instances of requests when an employee needed money, when Parham himself went into military service, and when vacation money was advanced to an employee who quit and to a supervisor. None of these situations existed among the striking drivers on October 24, and Bailey's attempt to explain does not explain. From the fact that the men accepted their checks, he assumed that they wanted them. Aside from the fact that the Association did not pay its employees whenever they wanted to be paid, the later acceptance did not prompt and does not explain the earlier preparation. The finality attaching to the issuance of these paychecks and the discriminatory treatment of the strikers as having terminated their employment can be seen in Bailey's statement that it "is customary for the Association to pay employees who quit their final check in full on their last day. I instructed the girls to make up checks on all of the drivers who had not taken their trucks out the night before so they would be available if they wanted them." [Emphasis supplied.] Final pay- ment to the strikers as if they had quit was discriminatory. In addition to his reference to a report of a request for a check, Bailey stated several other reasons for issuing the checks as and when he did. These are no more valid than the first, and their nature and number further support a finding of B Ingersoll had submitted his resignation about 10 days before, and had stayed on to break in a replacement. The latter had entered on duty on October 23, and it was stipu- lated that Ingersoll's last day would have been October 25. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 431 discriminatory termination. Several times he referred to a plurality of requests for checks although he made it clear that he was told of only one. He also "felt" that some wanted their checks; he stated that some drivers had threatened other em- ployees; and he did not want the strikers embarrassed or inconvenienced to return for their checks later. With respect to threats, Bailey testified that he had not himself heard any but had heard of them and "supposed" that Parham told him. Although allegedly worried about these threats to the point of being prompted to direct that checks be made out so that the drivers would not have to return, Bailey did not order the men off the property. There is no reliable testimony that Bailey was in fact told of threats before he directed the preparation of the checks; his testimony in this connection is patently unreliable. No more reliable is Bailey's testimony concerning his alleged desire to spare the strikers embarrassment and inconvenience as a reason for early preparation of the checks. On the morning of October 24, when Bailey directed that the checks be prepared, and that afternoon, when he issued them, he could not treat the strikers as having quit their employment for that would constitute interference with their concerted activities. Thus he could testify only that he did not consider these as final paychecks and that he did not know whether the men had quit. But then there is no basis for his apparent assumption that they would not return to the plant for work for almost 2 weeks, i.e., until after November 5, the next regular pay date; for were they so to return there would be no question of embarrassment or inconvenience in coming for their checks. Nor, as pointed out, did Bailey, to spare them embar- rassment and inconvenience, mail checks to those strikers whose address he had. (The address is called for on the employment application form.) One driver, Kirk, had not come to work on October 24 and had not signed the statement which was left on Parham's desk; his check was not made out that day. He did come to the plant on the 25th but like the other strikers did not take his truck out. When Kirk's check was submitted to Bailey for signature, the latter allegedly assumed that Kirk had asked for it and also that he had quit. (The check was not issued merely on Kirk's request. If no specific order was given for its preparation, it was apparently treated as included in Bailey's blanket order the day before concerning checks for all of the strikers.) Here Bailey clearly connected issuance of a check, not with an employee's convenience or possible embarrassment, but with termination of his employment. But the only suggestion of termination was Bailey's and was based on the strike. Ledford, called by the Association, testified that he went to the plant for his check and saw Parham, who asked whether he had come for that; he assumed that it was his final check although he later explained that, since arrangements had been made for supervisors and other employees to drive, he thought he was through until the strike was settled: he considered his return after the strike as a second employment. Issuance of the checks would be differently construed had the strikers first asked for them. We recall.that Bailey testified that someone (he did not recall who) had told him that an employee had asked for his check. The Association, explain- ing why it could not produce him, has moved to reopen the hearing for the testimony of a witness, William Ball, concerning "a request for checks made by the employees on the morning of October 24, 1958." [Emphasis supplied.] Whether there had been one or more requests for payment is not the issue here. Rather it is clear that, whatever the facts, whether a request or several, Bailey understood it to be only one request and assumed that it had been made by Ingersoll. This he very clearly testified to when the question whether one or more requests had been made was specifically put to him; and this was the impression I got from Bailey's testimony as I sought clarification. Nor is there any question but that Bailey intended to and did have checks issued for strikers who had not requested them. The motion paper is not supported by the affidavit of the heretofore missing witness, and we are not told who allegedly made the request to him which was then relayed to Bailey. As Bailey left it, there was no proof that Ingersoll or someone else had actually re- quested his check. Now a witness can presumably tell us who made such a request. But, as we have just seen, any request for a check is ancillary; on the issue of dis- charge, the question centers on Bailey's act (later confirmed) based on his knowledge at that time or his impression of the facts. That impression, from his testimony and from his earlier written statement, was of a request by one employee. The proferred testimony, if it explained the basis for Bailey's action, could not alter his own motive 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as he disclosed it at the hearing and several months before . There is therefore no need to reopen the hearing for the testimony of William Ball in this respect. We are left with the clear evidence already noted that issuance of the checks to all of the strikers was not based on requests by all, many, or even a few of them . Bailey acted on the basis of a request by one driver for his own check as far as Bailey knew; he explained that check as the customary payment to employees who quit;. and he issued instructions for checks to all of the other strikers. If more be necessary in this connection , Bailey's motive in issuing the checks is. underscored by the fact that, as they left the meeting, he handed checks to four of the five strikers who met with the board of directors on the afternoon of October 24. Even with his assumption that Ingersoll was the one who had asked for his. check, there is no basis for such extreme concern for the others who had just struck without notice. Bailey was here letting the leaders or the representatives of the strikers know that they were through, and his subsequent procedure verified this. with respect to those strikers who applied for reinstatement, as he had them fill out new applications for employment. In fact, and I so find , Bailey was here in effect saying, "You walked out?-You're through!" True, the Association's records were not handled as in cases of discharge by nota- tion of "Final" on the employees' timecards; 6 nor in these cases was policy followed in deduction of credit union debts from wages due and addition of the respective. employees' share in the pension fund. But the most that can be said in extenuation is that Bailey did not carry through in all respects while he was discharging the strikers. One might guess, although no such finding is made, that the haste in which the checks were prepared precluded some entries, additions and deductions. (Whether those additions and deductions would leave a net balance in favor of the Association or each of the strikers does not appear.) We cannot rely on the testi- mony by Graham that after Bailey told the girl to issue the checks Graham told her that they were not termination checks and that termination deductions were not to be made. Mrs. Owen, the lady who made the checks out, testified as did Graham, but her explanation of the notation attached to Kirk's card was not convincing. If the alleged procedure was not made clear to the girl in the office who handled Kirk's card in Owen's absence, it was no more clear to the drivers involved; and if Graham deemed it necessary so to inform the office employee, he did not pass .the information on to the strikers. An attempt was also made, by reference to an employee who had been terminated 2 years before, to show through Mrs. Owen that the strikers were not terminated since they had not been given severance pay. -But then it appeared that such pay was given only under "some conditions" not defined (no more helpful was Bailey's testimony that severance pay was given "on occasions") and further that other employees were terminated without severance pay. Owen's testimony can hardly be relied on to support the Association's position. Certainly Ingersoll's check was known by all to be final, as we have seen; yet, like the others, it was not marked "Final" or "Severance." To cite the credit union note form provision to the effect that any balance would be due and payable on termination of employment , and the failure to declare such balance due as indicating that employment had not been terminated is to regard only part of the evidence. Also to be considered as evidence that the holder of the note did not insist on its payment provisions is the further provision in event of default in payment. Yet the Association, as we have seen, did not now withhold amounts owed to the credit union. Confusion rather than clarification is added by the fact that the final check issued to an employee who was terminated under dif- ferent circumstances on November 14, 1958, was endorsed to the credit union. Whatever the Association's usual practice in this respect and whatever the reason or uncertainty which prompted the action taken in connection with the strikers, the latter were discharged, as the proof abundantly indicates. As when Parham greeted men with the question whether they had come for their checks, infra, every impres- sion was given with the preparation and distribution of the checks that the strikers were through as far as the Association was concerned. If there was any reservation in Bailey's mind and he was here merely adopting what he deemed good tactics, such tactics at least tended to interfere with employees' concerted activities. Even were such weight to be given to the absence of a timecard notation and to omission of credit union and pension fund items from the paychecks that it were O That notation was placed on Kirk's card . We have seen that Kirk was away on October 24 but joined the strikers the next day ; this was the only action by Kirk which could be cited in support of Bailey's assumption that he had quit. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION 433 found that discharges were not in fact made, the interference and the result vis-a-vis the strikers call for the same remedy.? If it be urged that, regardless of how the Association made things appear and the employees' reasonable impression of dis- charge, the fact was that they had not been discharged, the interference with their concerted activity would nevertheless be clear; and violation of Section 8(a)(1) would be found. But further in this connection it is clear that regardless of nota- tions and check entries the Association thereafter treated the strikers as discharged and handled their requests to return to work as new applications for employment, as we shall soon see. Thus told and given evidence that they were discharged, these employees would not and could not reasonably be expected to return and take their trucks out; their supervisor had told them that they were already looking for other jobs, and the manager had issued their paychecks well ahead of the normal pay date. The significance of these acts was underscored when returning employees, including those who were not reinstated, were required to fill out new employment application blanks. Nor is any contrary conclusion to be drawn from the fact that the strikers remained at the garage during the morning of October 24; they were waiting for the union representative to come and take action on their behalf. As strikers returned to the plant for their checks on the afternoon of October 24, Parham greeted them with the question whether they had come for the checks. His concern was not over whether they wanted to work, nor did he attempt to discuss ineir return: he had indicated that they were discharged, and he was now giving them their checks. Here is a dual basis for a finding of discrimination: the strikers were discharged immediately and prior to their permanent replacement, and there was an unlawful assumption that, by their walkout, they had quit. Bailey palpably and unlawfully reacted to the strikers' concerted activities. To this point it has been inferred from the facts in evidence that Bailey's issuance of the checks to the strikers indicated or recognized the termination of their em- ployment. This is borne out by the statement of the Association's position, issued on November 12, "that these employees, in effect, quit their jobs by refusing, after repeated demands, to take their trucks out.. If the Association's "position" in this connection has since changed, it has not corrected the earlier violation or limited its liability by offers of reinstatement. Whatever unfamiliarity might be pleaded in connection with terminology under the Act, the phrase "quit their jobs" is quite plain; as is the Association's reaction to such alleged quitting. (That state- ment of position was quite correct in recognizing these as economic strikers. As shown infra, it was violative to discharge them or to regard them as having quit.) There is a question of credibility whether Wolfe, the president of the Association, said, " . . . :at this point [we] ha[ve] no further use for these employees." Wolfe impressed me as a careful and honest witness. Of the other directors who testified, Carter was the most thorough in his recital of what occurred at the meeting with the union and employee representatives. Yet both Wolfe and Carter could only say that they did not recall that Wolfe made such a statement. (It was stipulated that it was not reported to the Board by management representatives that the 14 drivers had been discharged, and that the Board took no action directing or authorizing dis- charge. But it does not appear that formal Board action was necessary to authorize or ratify such action by Parham, Bailey, or Wolfe.) The other directors who testi- fied omitted the statement in their account of what Wolfe said, but their recollection was far from complete. One might wonder whether the alleged remark by Wolfe appeared to be normal, i.e., not violative, to the Association's directors and therefore did not stand out in their memory. In any event, judged from their testimony and their manner, their recollection was hazy. On the other hand, the General Counsel's witnesses testified with definiteness and apparent credibility that Wolfe did make that statement. I decide this conflict in favor of those witnesses who categorically maintained that Wolfe did say that the Association had no further use for the strikers (this to be reasonably construed as discharge or confirmation of the discharges, especially in the light of their treatment before and immediately after by Parham and Bailey),* without any reflection on the truthfulness and character of the Association's witnesses 7Rome Specialty Co., Inc., 84 NLRB 55, 57. While there was no element of "member- ship in any labor organization" when Parham spoke with the employees late on October 23, we recall that the Union's representative did speak with Bailey and Graham the next morning and with the directors in the afternoon. Again, the same remedy would be called for were there only interference without statutory discrimination. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this connection. I have not overlooked the fact that, when Wolfe made this remark, Booher did not protest against such termination, but sought only to persuade Wolfe and the other directors to recognize the Union or to consent to an election. With the finding of discriminatory discharge by Parham and Bailey, supra, we now have repetition or ratification of the earlier violations.8 The finding with respect to Wolfe's statement is alone dispositive of the questions of violation and remedy. Decision on the other points supports this, as this decision supports those. One of the directors, Stanford, testified that the hauling committee felt that it "would have a problem, that evidently some of those boys would want to come back to work." The committee was advised that "it would be a fine thing . to just put them back to work and let bygones be bygones" if the committee thought "that these men made a mistake and had performed prior to this date and that they could be returned and do . . . a good job." In short, the committee, weighing the "problem" of strikers seeking to return, believed that it was optional with it whether to put back to work any of those who wanted to return; it thus equated the strike with termination of employment, a finding consistent with the other findings of fact herein. This much is further clear: Although I would not rely on it to resolve the ques- tion concerning what Wolfe said at the October 24 meeting, the hauling committee of the Association's board of directors, by three-fourths of its members, ratified the discharges when these directors "approved" Sewell's request for a job. There is no claim that Sewell's job was permanently filled prior to his return on October 31. Only if he had been discharged or were considered as having quit because of the strike might any action beyond normal acceptance of his request to return be in order. (Even had he quit or been discharged or replaced, the condition that he be approved by a directors' committee would be discriminatory.) But as we shall soon note, to treat Sewell as discharged or having quit was itself discriminatory. The routine or procedure imposed on Sewell was not only itself discriminatory, but indicated and constituted ratification by the committee of the discharges unlaw- fully effected by Parham, Bailey, and Wolfe. Other strikers, seeking to return, were also kept waiting while approval was obtained. The limitation on Parham's author- ity to return the men to their jobs was due to the unusual circumstances of the strike and the fact that the hauling committee of the board of directors had now taken over this authority and "had his hands tied." Since, as we have seen, it was deemed optional with the Association whether the strikers be taken back, they had not, in the Association's opinion, retained their jobs. Here we have the explanation for the various acts which we have analyzed as indicating that the strikers had been discharged. They had not quit; they no longer had their jobs; ergo, they had been discharged. The checks were issued, uniforms called in, new applications filled out-all of this was because they had been discharged. The testimony that the strikers were continued on the payroll at least to the date of the hearing does not overcome the proof of unlawful termination. Despite the stipulation that the payroll records do not customarily include the names of those who have quit or been discharged, these drivers were carried on the payroll even after they had been replaced and when, according to the Association's position, they were no longer employees. This is indicated by Bailey's testimony that it was assumed that the strikers' failure to return and request that they be put to work after 12 days indicated that they had quit and did not intend to return. Thus despite this evidence of alleged voluntary termination, the strikers were continued on the payroll list. (Although evasive on this point, Bailey could not avoid connec- 8 Even the testimony by Flelvey, a member of the Association, that one of the drivers, Steffen, told him on the afternoon of October 23 that the drivers were going to try to bargain with the Association "or they were going to quit" does not support the Asso- ciation's position. It does not appear that the drivers did quit; that llelvey told Bailey or Graham, who were at his house that evening, that the drivers were quitting their jobs (we recall Bailey's testimony that, if the men did not return to work for 12 (lays, he assumed that they had quit, and Graham's that they were still employed on October 24) ; or that the directors when they spoke with Booher on the afternoon of October 24 had knowledge of or referred to this alleged threat to quit. There is no evidence that the Association had knowledge of another alleged threat, by four of those who later struck, to a nonstriking driver Yaney. Nor does it appear which 0 of the four, over the telephone, made the threat. CENTRAL OKLAHOMA MILK PRODUCERS . ASSOCIATION 435 tion between his own action and his appraisal of the strikers!) If they were thus continued on the payroll when Bailey considered their employment terminated, such continued listing after October 24 could not prove that they had not been terminated. Further, despite retention of strikers on the payroll, there is no evidence that the Association advised them of this to overcome the fact and the impression that they had been discharged. In fact, the Association's position has been that they were lawfully replaced, quite contrary to and making meaningless for present pur- poses the attempt to show their retention on the payroll list. In short, the strikers' names are continued on payroll lists, timecards, etc.; but they are not entitled to their jobs: this hardly constitutes them employees even when looked at through Association glasses. More significant than retention on the payroll list is the testi- mony concerning early discharge, issuance of checks, and Wolfe's statement that the Association is not under Board jurisdiction and that it had no further use for the strikers. As for uniforms not being turned in by any of the strikers, Kappel testified that he kept his because he did not think that Parham wanted them although he asked for them. This testimony is given a slight element of plausibility by Parham's inability to recall whether or not he asked the men to turn in their uniforms; this was perhaps an unimportant item. Yet even if Kappel's excuse be rejected as too transparent, to say that retention of the uniforms was unwarranted is quite differ- ent from saying that such retention indicates that the strikers were not discharged. Certainly retention of uniforms could not prevent or cancel the discharges. Nor did it indicate that the strikers did not believe that their employment had been termi- nated by the Association. Ingersoll, who had resigned as noted supra, has retained his uniforms. This is not to say that such retention is proper; only that it does not indicate continued status as an employee. When the strikers filled out applica- tions as new employees and when Sewell polled the directors, they had been no less "dead" as employees even though they retained their uniforms and even if checks, timecards, and payrolls had suggested continuance of employment. The mere recital of the events on October 23 and 24 indicates that the drivers were engaging in concerted activity. Various directors referred to the walkout or to the men walking off their jobs, a phrase used to describe strikes, and the board of directors recognized the concerted activities during the discussion with the union and employee representatives. It is well settled that it is unlawful to equate striking with quitting a job or to discharge employees because they have gone on strike. Until they are replaced, economic strikers must be returned to their jobs on request 9 absent special circumstances not here present. No unusual circumstance, such as aggravated injury to personnel or premises,'° was created by the fact that the milk handled is perishable and loss might be sustained; loss is not uncommon when a strike occurs. In this connection we note the stipulation that the Grade A milk supply of the Central Oklahoma area has a great health, safety, and welfare effect on the area, and that the Association supplies more than 80 percent of that milk supply. When the drivers struck on the night of October 23, the Association had to take action to get the milk to market. Such action was readily and promptly taken with the aid of supervisors. In finding the discriminatory discharges, I have not relied on Mrs. Stromski's testimony that early in the morning of October 24 she allegedly spoke with Parham on the telephone and that he told her that he had just fired her husband and Sehie. It is therefore unnecessary to reopen the hearing for testimony by an additional witness who would presumably testify (this is not set forth in the motion to reopen) that he overheard Parham on the telephone, that he knew that he was speaking with Mrs. Stromski and what he said to her, and that Parham did not tell her that he had fired the employees. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Association set forth in section II, above, occurring in con- nection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, e N.L.R.B. v. United States Cold Storage Corporation, 203 F. 2d 924, 927 (C.A. 5). 10 N.L.R.B.. v. Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., 107 NLRB 314, 315. 436 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Association engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Association, by a statement of discharge because employees engaged in lawful concerted activities, interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. (Such statement may be deemed merged in the discrimination found, in which case it constitutes a "derivative" violation of this section.) I shall therefore recommend that it cease and desist therefrom. It has been further found that the Association, by discharging the 14 strikers, discriminated against them in respect to their hire and tenure of employment in violation of Section 8(a)(3) of the Act. I shall therefore recommend that it cease and desist therefrom and from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. I shall further recommend that the Association offer to Pearl, Kappel, Kirk, and Dugger immediate reinstatement to their former or substantially equivalent positions,11 without prejudice to their seniority and other rights and privileges, dismissing if that be necessary all who have replaced them; and to Sehie, Fowler, Coles, Stromski, Steffen, and Canada, similar immediate reinstatement upon application. The Association shall also make Pearl, Kappel, Kirk, and Dugger whole for any loss of pay they may have suffered by reason of the Association's refusal to reinstate them, computation to be made in the customary manner,12 from December 5, 13, 13, and 15, 1958, respectively, to the date of a proper offer of reinstatement; and Sehie, Fowler, Coles, Stromski, Steffen, and Canada during the period from 5 days after the respective dates when each applies for reinstatement to the date of a proper offer of reinstatement. I shall further recommend that the Board order the Association to preserve and make available to the Board upon request payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. For reasons noted supra, neither reinstatement nor backpay will be recommended for Ross, Sewell, Ledford, or Ingersoll. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local No. 886, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of John Ingersoll, Clifford Sehie, Edwin Fowler, D. R. Coles, Walter J. Pearl, A. D. Kappel, Kyle K. Kirk, Hoyt S. Dugger, David Stromski, R. D. Ross, Robert I. Steffen, Neuton Canada, Max Sewell, and J. C. Ledford, thereby discouraging membership in a labor organization, the Association has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By such discrimination and by a statement of discharge because employees engaged in lawful concerted activities, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Association has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 11 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294.