Insular Chemical Corp.

INSULAR CHEMICAL CORPORATION, ETC. 93 Insular Chemical Corporation and Rubber Corporation of America (Insular Division) and Local 14-149, Oil, Chemical, and Atomic Workers International Union. Cases Nos. 92-CA- 6,050 and 2-CA-6717. July 19, 1960 DECISION AND ORDER On February 17, 1960, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent and the Charging Party also filed briefs. 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 [Members Rodgers, Jenkins, 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 and the entire record in this case, including the excep- tions and the briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the complaint.] 1 We reject the General Counsel's argument in his brief that the Trial Examiner's re- liance on Desilu Productions, Inc., 106 NLRB 1'79, and The Metal Products Corpora- tion, 119 NLRB 659, is misplaced in the light of such later cases as Georgia Kraft Company, 120 NLRB 806, and Union Manufacturing Company, 123 NLRB 1633 Although the Board no longer permits allegations of a supervisor's solicitation of interest to be litigated in a representation proceeding, this policy in no way precludes the Board from properly considering in an unfair labor practice proceeding the validity of cards obtained by a supervisor's solicitation for the purpose of determining a union's majority status. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Local 14-149, Oil, Chemical and Atomic Workers Inter- national Union, herein called the Union, the General Counsel of the National Labor Relations Board , by the Regional Director for the Second Region (New York, New York), issued two complaints in the above cases, which were subsequently consoli- dated for the purposes of hearing,' against Insular Chemical Corporation, New York, New York, herein referred to as Insular or Respondent Insular, and against Rubber Corporation of America (Insular Division), New York, New York, herein referred to as Rubber Corporation or Respondent Rubber Corporation, and collectively referred to as Respondents . With respect to the unfair labor practices , the complaints allege, 1 In Case No. 2-CA-6250, a complaint was issued on March 31 , 1959, and an amended complaint was issued on July 13, 1959 . In Case No. 2-CA-6717, the complaint was issued on August 20, 1959 The order consolidating the cases for purpose of hearing ,was issued on August 25, 1959. 128 NLRB No. 20. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in substance, that: (1) Respondents at all times on and after July 29, 1958, refused to recognize and bargain with the Union which represented a majority of the employees of Insular in a specified appropriate unit; (2) Respondents engaged in specified acts of interference, restraint, and coercion through designated agents; (3) from August 7, 1958, until February 24, 1959, the employees of Insular ceased work concertedly and engaged in a strike which was caused and prolonged by Respondents' unlawful conduct in refusing to bargain with the Union and in engaging in acts of interference, restraint, and coercion; (4) since February 24, 1959, Respondents have failed and refused to reinstate the strikers upon their unconditional request; and (5) by the foregoing conduct Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its duly filed answers, Respondents deny the unfair labor practice allegations, and affirmatively allege, in substance, that (1) the refusal to recognize and deal with the Union was not unlawful because Respondents had a good faith doubt as to the Union's majority status and the appropriateness of the unit and because the Union did not in fact represent a majority of the employees in an appropriate unit; (2) the strike was caused and prolonged solely by Respondents' unlawful refusal to bargain and hence was not an unfair labor practice strike; (3) the strikers engaged in unlawful and unprotected activities during the strike; and (4) that prior to the strikers' request for reinstatement, they had been lawfully replaced and the jobs of five strikers had been eliminated for economic reasons. Pursuant to due notice, a hearing was held on November 9 to 18, 1959, inclusive, at New York, New York. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral 'argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. After the close of the hearing, the Respondents filed a brief which I have fully considered. Respondents' motion to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, is hereby granted in 'accordance with the findings and conclusions made below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Prior to January 1, 1959, Respondents have been separate corporations duly organized and existing by virtue of the laws of the State of New York. In February 1958, Respondent Rubber Corporation ,- which at that time owned 50 percent of the stock of Respondent .Insular, acquired the balance of the Insular stock. About January 1, 1959, Respondents were merged and consolidated into Respondent Insular, which then became known as Respondent Rubber Corporation of America. At all times material herein, Respondents have maintained offices, plants, and places of business at New South Road, Hicksville , New York, and have been con- tinuously engaged at said places in the manufacture, sale, and distribution of poly- vinyl chloride , plastic film and sheeting, latex compounds , plasticizers , and related products. During the year ending December 31, 1958, each of the Respondents purchased and received at its plants materials , valued in excess of $50 ,000, from points located outside the State of New York; during the same period , each of the Respondents manufactured , sold, and shipped from its plants materials , valued in excess of $50,000, to locations outside the State of New York. Upon the above undisputed facts, I find, as Respondents admit, that Respondents are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the record shows, and I find, that Local 14-149, Oil, Chemical and Atomic Workers International Union, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. '1I. THE ALLEGED UNFAIR LABOR PRACTICES By July 1958, the Union had in its possession authorization cards signed by a majority of the employees of Respondent Insular, and at the end of July the Union requested recognition and a meeting. At a meeting held on August 6, 1958, Re- spondent Insular refused to recognize the Union unless it first demonstrated its majority in a Board-conducted election, to which Respondent was willing to consent. The next day the employees struck and remained on strike until February 24, 1959, INSULAR CHEMICAL CORPORATION, ETC. 95 when an unconditional request for reinstatement was made on their behalf by the Union's attorney. The Respondent refused to reinstate any of the strikers on the ground that their jobs had been filled or eliminated and that, in any event, the alleged strikers had engaged in violence and other misconduct during the strike. The principal issues raised by the pleadings and litigated at the hearing are (1) whether Respondent Insular's conduct constituted an unlawful refusal to bargain violative of Section 8 (a)(5) of the Act; (2) whether the strike was caused and/or prolonged by any unfair labor practices; and (3) whether the refusal to reinstate the strikers was an unfair labor practice violative of Section 8(a)(3) of the Act. A determination of these issues depends on a resolution of a number of subsidiary issues which will be discussed under appropriate headings. A. The alleged refusal to bargain Respondents contend that Insular's refusal to recognize the Union unless it first demonstrated its majority in a Board-conducted election was not unlawful because (1) Insular in good faith doubted the Union's majority status and the appropriate- ness of the unit and (2) the Union did not in fact represent a majority of Insular's employees in an appropriate unit. The General Counsel disputes these contentions and asserts that Insular's conduct was motivated solely by a desire to gain time within which to undermine the Union's majority and hence is not a valid defense. I will first treat with the Union's majority status because my disposition of this issue makes it unnecessary to resolve the remaining issues. 1. The Union's majority status The complaint alleges a refusal to bargain on and after July 29, 1958. The parties stipulated that during the period from July 29 to August 7, 1958, the date of the strike, 25 men were employed in the alleged appropriate unit. The super- visory status of four men in this group is in issue.2 To prove the Union's majority status, the General Counsel introduced into evidence authorization cards signed by 22 men, including Tierney and Urlaub whose supervisory status is in issue, who were admittedly employed during the above-stated period. The Respondents contend that the Union did not represent a free and uncoerced majority of Insular employees in any appropriate unit because of the organizational role played by Jerome Tierney and George Urlaub, who, Respondents assert, are supervisors within the meaning of the Act. The General Counsel contends that these two men are not super- visors and that, in any event, their activities did not taint the Union's majoriy. a. The supervisory status of Tierney and Urlaub 2 Respondent Insular operated with three shifts. McEachern worked on the first or day shift from 8 a.m. to 4:30 p.m.; Tierney on the second shift from 4 p.m. to 12:30 a.m.; and Urlaub on the third shift from 12 midnight to 8:30 a.m. The shifts thus overlapped by a half hour. Each had the title of shift supervisor on his respective shift. Their immediate superior was Process Engineer Wagshul, an admitted supervisor, who normally was present at the plant only from 8 a.m. to 5 p.m. Immediately above Wagshul was Plant Manager O'Donnel, who also was present only from 8 a.m. to 5 p.m. In addition to the shift supervisor, each shift had a crew of four men consisting of a reactor operator, a reactor assistant or utility man, a drier operator, and a tank farm operator .4 These four men worked in widely separated areas in the plant where they had a specific job to perform. These men, for the most part, rotated on shifts so that over a period of time a shift supervisor would have had practically every man work on his shift. Tierney and Urlaub admitted that they had the same authority and performed substantially the same duties. As previously noted, Wagshul normally left the plant about 5 p in. and no other representative of management was present during these two shifts. Before leaving, Wagshul would write instructions in the logbook for specific things which he wanted done on the remaining two shifts. As Tierney's shift began at 4 p.m., Wagshul would also consult personally with Tierney in connec- tion with the work and the men on his shift. When the supervisor on the second and third shifts reported for work, he first consulted the logbook for instructions and then ascertained if enough men were 2 Jerome Tierney, George Urlaub, Myles McEachern, and Eugene Huddy. 3 The factual findings in this section are based on evidence which is admitted or undenied 4 On the day shift, there was also a crew of twa shipping employees. '96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available to carry out the assignments. If in his judgement more men were needed to complete a specific assignment or if some of the crew was absent, he had the authority without prior clearance to hold men over from the previous shift or to call men from the following shift to come in early or to do both at the same time. Entries in the logbook show that Tierney and Urlaub exercised this authority in all three respects.5 The supervisor was then responsible for seeing that Wagshul's instructions in the logbook, or received orally, were carried out by the men on his shift.6 Thus Tierney testified that it was his duty to see that the orders in the logbook were carried out and that the men in his crew followed the instructions which he gave them. The super- visor had the authority to reprimand employees for poor work and to commend them for good work. Tierney testified that he would tell employees when they were doing "sloppy" work and would show them the correct way to do it. He admitted that it was his duty to report "sloppy" work to Wagshul. Urlaub admitted that he had complimented the men on his shift for good work performance and had referred to them as "my men." The supervisor was the only one on the shift who had to know every job in the plant thoroughly. The supervisor was responsible for the production on his shift and also for the safety of the equipment and the men. Urlaub testified that he would continuously instruct the men on the proper method of operation and safety procedures. The plant consists of two levels in the Insular building with two different areas within the building as well as the outside tank farm area. The members of the crew work in widely located areas. It is the Supervisor's duty to inspect the entire plant. It takes about 1 hour to make a tour of duty of the entire plant. Tierney testified that he makes four or five such tours during his shift, and that he con- tinuously walked around the plant, checking on the performance and production of the men, making sure that the men were doing what he told them to do, and relieving the men for breaks or lunch periods. Urlaub also testified to the same effect. The supervisor was consulted by Wagshul as to the efficiency and quality of the work of the men, and would make recommendations with respect to their retention and advancement. Thus when Tierney was consulted about Ben Barron on one such occasion, he stated that he did not think much about Barron's work and did not want him on his shift. The next week, Barron was transferred to another shift. In fact Tierney testified that each day at the beginning of his shift, Wagshul would ask him how everybody was doing and how the men were working out, and that he would report any work deficiencies at that time. On one occasion, Urlaub recom- mended one of his men, Lombardi, for a raise, at the latter's request. About a week later, Lombardi received a raise although it was less than Urlaub had reported he was successful .in getting. Each employee had a 6-week training period, and the supervisor was in charge of training the workers on his shift. At the end of the training period, the supervisor was consulted by either Wagshul or Plant Manager O'Donnel as to the worker's efficiency. Those whom the supervisor reported to be good workers were retained. Employees reported grievances to their supervisor, who was authorized to dispose of petty grievances but to report others to Wagshul or O'Donnel. The men would ask their supervisor to intercede on their behalf with respect to requests for raises or improved working conditions. The supervisor would take these matters up with Wagshul or O'Donnel and would plead the employee's cause. He would generally be told that it would be looked into. Urlaub and Tierney both testified to the occurrence of such instances. The supervisor also made general decisions with respect to the operations of the plant, such as into which blend tank the batches should be dumped, how the column should operate, when the column should be cleaned, and who should unload a tank car. Thus, Urlaub testified that he was left in charge of the crew to operate the plant, and that he would remind the crew to inform him if anything was not normal because "I was the one operating the plant." Although each member of the crew worked on fixed assignments, in case of emergency the supervisor had the authority, as Urlaub admitted, to shift any man to any job which the supervisor thought the man was capable of performing. Only the supervisor was authorized to, and did, make entries in the logbook in connection with the operations of the plant and the "The individual supervisor made out the overtime slip and at the end of the week, after the overtime work had already been performed, submitted it for Wagshul's signature O Although some employees testified that they also read the logbook, they had no authority to do so. A logbook entry dated July 31, 1957, states that logbook records are to be read by supervisors only and that no other, operator, unless so authorized, is to read comments in the log. INSULAR CHEMICAL CORPORATION, ETC. 97 work of the men. Urlaub admitted noting in the logbook numerous operational suggestions for improving working conditions, some of which were adopted. Upon consideration of all the foregoing and the entire record as a whole, I am convined and find that Tierney and Urlaub possessed, and in fact have exercised, the authority which constitutes them supervisors within the meaning of Section 2(11) of the Act.7 b. Organizational activities of Tierney and Urlaub 8 On November 13, 1957, a Board-directed consent election was held among Re- spondent Insular's employees, in the same unit alleged to be appropriate in the instant proceeding, to determine whether they wished to be represented by the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called the Carpenters. Prior to the election, Tierney and Urlaub admittedly made no secret of the fact that they were opposed to the Carpenters, openly campaigned against the Carpenters 'throughout the plant, and urged the employees to vote against the Carpenters. The views of Tierney and Urlaub were admittedly made known to Respondent, particularly to Process Engineer Wagshul, and to the employees in no uncertain terms. The Carpenters was defeated in the election by a vote of 17 to 7.9 In December 1957, Tierney, Urlaub, and employee Joseph Reiner visited McManus, chief steward of the Union, inquired about the Union, and discussed the possibilities of organizing the employees. They received some union literature which Tierney subsequently distributed to the employees at the plant Thereafter, Tierney ad- mittedly discussed the merits of the Union with employees both on his own and other shifts and made it clear to them that he was in favor of the Union. Tierney admitted that the employees knew he was in favor of the Union to the same extent that they had known he was opposed to the Carpenters Thus, employee Joseph Yoniack testified that Tierney discussed the Union with him and other workers in the plant, "told us what kind of union it was, what their policy was, what benefits they had" and so forth. When Yoniack was asked if Tierney recommended joining the Union, Yoniack testified, "Yes, he did." Employee Erwin Sholes testified that he first heard about the Union in the early part of 1958 from Tierney who stated that it was a good union and that they handled chemical outfits. Nothing further was done toward organizing the employees until the Carpenters began picketing the Rubber Corporation plant in May 1958. Tierney testified that because of the Carpenters' picket line "we decided it was time to get in touch with the Oil, Chemical and Atomic Workers Union again and start our campaign for recognition." 10 Tierney thereupon telephoned to Mazzocchi, president of the Union, told him that "the employees of the Insular Company were ready for organization," and asked what the first step should be. Mazzocchi discussed the feasibility of setting up a meeting for the men where the whole situation could be discussed. As the next step, Tierney and Urlaub visited Mazzocchi at the Union's headquarters in early June 1958. At that time Tierney received the union membership application cards for the men to sign Tierney admittedly distributed the membership application cards to the men on his shift and on the other shifts. Tierney's shift overlapped a half hour with the day and midnight shifts. The distribution and signing of the application cards took place, for the most part, during change of shifts, at lunch periods, or in the locker room. The men were informed that Tierney was passing out the application cards 'See, e g , California Spray-Chemical Corp, 86 NLRB 453, 454-455; Southern In- dustries Company, et at, 92 NLRB 998, 1001; Engine Rebsulding Corporation, et at., 115 NLRB 1776, 1778; Reeves Brothers, Incorporated, et at., 116 NLRB 422, 428; Associated Cooperatives, Inc, 112 NLRB 1012, 1013; Jordan-Rogers Company, 107 NLRB 1136; United States Gypsum Company, 109 NLRB 1402. 1405-1406; Apex Tire and Rubber Company, 117 NLRB 559, 560; General Electric Appliance Company, etc, 119 NLRB 573, 575; Kest Virginia Pulp and Paper Co., 120 NLRB 1281, 1283, and 122 NLRB 738. s Unless otherwise indicated, the findings in this section are based on the testimony of the General Counsel's own witnesses, exhibits introduced by the General Counsel, and a stipulation of the parties. ° Tierney and Urlaub voted in the election, without challenge 1° Tierney and Urlaub testified that both in December 1957 and on this occasion they contacted the Union at the request of all the employees However, not a single employee corroborated them in this respect Indeed, only one employee testified that lie had ever heard of this Union : other employees who testified in this connection indicated that they first heard of the Union from Tierney. Under all the circumstances, I do not credit Tierney and Urlaub in this respect. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -and some, who had not received a card, came to him to get one. Tierney gave some cards to employee Sholes with instructions to pass them out to the maintenance ,employees and see if they would sign them. Sholes thereupon passed cards out to the four maintenance men, all of whom signed and returned their cards to Sholes who, in turn, returned them to Tierney. Some of the employees had previously been told by Tierney that he was getting the cards for the men to sign. All signed cards were eventually returned to Tierney. Between June 9 and 14, inclusive, when the first general employee meeting was held, 20 employees, exclusive of Tierney and Urlaub, had signed membership appli- cation cards. Of this number, 11 admittedly had signed in Tierney's presence. One other employee admittedly signed his card in Tierney's presence on June 30. Tierney testified that "I had all the men that was working on my shift sign the cards in my presence." He admitted that because of the rotation system, about half of Re- spondent's employees had worked on his shift in June alone, and that over a period of time almost everyone worked on his shift. Some of the day-shift em- ployees admittedly also signed their cards in Tierney's presence. Employee Soha testified that Tierney asked him if he would join the Union if Tierney showed him a card. Soha replied that he would "if it's any good." Tierney thereupon showed the card to Soha, who read and signed it and then returned it to Tierney. Employee O'Reilly testified that Tierney gave him a card and asked if he would like the Union. O'Reilly read the card, signed it, and returned it to Tierney. Employee D'Amato testified that Tierney asked if he was interested in being a union member. Upon receiving an affirmative reply, Tierney gave a card to D'Amato who signed and returned it to Tierney. The first general employee organizational meeting was held on June 14 at the Union's office. About 16 were in attendance although 20 employees, exclusive of Tierney and Urlaub, had already signed cards. The next meeting was held on June 28 and was attended by about 20 men. The employees were notified of both meetings by Tierney and Urlaub. At the second meeting, Tierney and Urlaub were elected to a four-man negotiating committee, with Tierney as chairman. The com- mittee was authorized to call a strike if the Respondent refused to recognize the Union. Tierney and Urlaub were the only members of the negotiating committee who were present at the meeting with Respondent Insular on August 6, when they decided to call the strike. c. Conclusions with respect to majority status The Board has accepted signed authorization cards as establishing a duly desig- nated majority representative, in the absence of any evidence which might impair the validity of the cards as the free and voluntary expression of the signers. Where, however, a supervisor has engaged in any activity in connection with the obtaining of authorization cards, such cards uniformly have been preemptorily discarded. Thus, the Board has dismissed petitions for an election where the petitioner's showing of interest was impaired because of a supervisor's activities or solicitation ti If the Board has taken such a strict approach for the purpose of merely determining whether a secret-ballot election should be held, then a fortiori must there be a searching examination to determine whether the activities of any supervisor tainted the cards for the purpose of establishing the Union's majority representative status. Here, the Union's organizational drive was undertaken and executed primarily by Tierney. Before obtaining the membership application cards, he talked to the employees about the merits of the Union and recommended that they should join. The evidence shows that the employees knew nothing about this Union until Tierney advised them about it. Tierney and Urlaub had openly opposed the Carpenters Union in 1957. When the Carpenters began picketing again in May 1958, they decided that the time was appropriate for starting the campaign to get the Union recognized. In view of the role played by Tierney both before and at the time of the signing of the application cards, I find that Tierney in effect solicited the employees to sign these cards. It is significant that in 1957 when Tierney and Urlaub openly opposed the Carpenters, the employees overwhelmingly rejected that U See, e g, Desilu Productions, Inc, 106 NLRB 179, 182 (where the Board found that two employees "were, in effect, solicited " by a supervisor to loin the petitioner and that the "showing of interest, on which this petition was based , is necessarily impaired by his activities in the organization of the Petitioner ") ; TVolt Metal Products Corporation, 119 NLRB 659 , 660-666 ( where a supervisor spoke in favor of petitioner at an employee organizational meeting and to employees at the plant and also solicited the signatures of three employees . The Board held that such solicitation by a supervisor "does, in fact, impair a petitioner's showing" and dismissed the petition). INSULAR CHEMICAL CORPORATION, ETC. 99 union; whereas in 1958, when Tierney sponsored and solicited for the Charging Union, 20 employees signed authorization cards within a period of 6 days and before the first employee organizational meeting was held. Practically all the employees had worked on Tierney's shift and would continue to work on his shift at one time or another. A total of 12 employees had signed the cards in Tierney's presence. Tierney was the only management representative on his shift, with authority to direct the employees in their work, to reprimand employees for poor work, to report work deficiencies to higher management personnel, to determine who should work overtime, to dispose of petty employee grievances, and to present others to higher management with a plea on the employees' behalf. It is impossible to determine to what extent these factors influenced the employees in signing the application cards under the circumstances and in the manner hereinabove described. Particularly is this so with respect to the 12 employees who signed in Tierney's presence.12 In view of the active role played by Tierney, as described above, I am not con- vinced that the cards, under all the circumstances, establish that the Union was the duly designated majority representative. 13 At the very least, the 12 cards which were signed in Tierney's presence cannot be counted. Of the 25 men employed during the relevant period, Tierney and Urlaub have been found to be supervisors. Assuming that McEachern and Huddy are also supervisors, a position most favorable to the General Counsel because they did not sign cards, that would leave 21 employees in the alleged appropriate unit. Deducting the 12 cards signed in Tierney's' presence, the remaining cards do not constitute a majority.14 2. The refusal to bargain The Respondent refused to recognize the Union as the exclusive majority repre- sentative of the employees in the alleged appropriate unit unless the Union first demonstrated its majority in a Board-conducted election. As the Union did not represent a majority of the employees in the alleged appropriate unit at the time of Respondent's refusal, Respondent's conduct in this respect did not constitute a refusal to bargain within the meaning of Section 8(a) (5) of the Act.15 B. The cause and prolongation of the strike The employees of Respondent Insular went on strike on August 7, 1958. The complaint alleges, and the General Counsel contends, that the strike was caused and prolonged by the Respondent's unfair labor practices in refusing to bargain and in engaging in acts of interference, restraint, and coercion. The Union's negotiating committee, of which Tierney and Urlaub were members, admittedly was authorized and empowered at the July 28 employee meeting to call a strike if the Respondent refused to recognize the Union. Erwin Sholes, a member of the negotiating committee, testified that the committee was not to call 12 The Supreme Court has cautioned that often subtle factors may "restrain" the "com- plete and unhampered freedom of choice which the Act contemplates." International Association of Machinists, etc, Lodge No. 35 (Serrick Corp ) v. N L.R B , 311 U S 72, 80. 13Flint River Mills, Inc, 107 NLRB 472, 476-477 As Tierney played an equally active role in connection with the strike, the fact that the employees went out on strike stands on no better footing "I find no merit in the General Counsel's contention that the validity of the applica- tion caids cannot be impaired by the conduct of Tierney and Urlaub, even if found to be supervisors, because they voted in the Carpenters' consent election without challenge, relying on Mississippi Valley Structural Steel Company. Maplewood Plant, 64 NLRB 78, and Indianapolis Newspapers, Inc., 103 NLRB 1750. Unlike the situation in the cited cases where the issue was whether the employer violated the Act because of the super- visors' conduct, the issue in the instant case is whether the employees exercised a free and untrammeled choice in signing the application cards. A finding that such was not the case is not necessarily inconsistent with a finding that the employer was not liable for the supervisors' conduct. In the Desilu case, supra, the fact that the supervisor was known to have been a member of one union did not deter the Board from finding that his activities in connection with the organization of petitioner impaired its showing of interest. Moreover, the record shows that respondent was fully aware of the vuper- visors' opposition to the Carpenters before the election, and also that there has been some turnover of employees since that election. 15I therefore find it unnecessary to determine (1) whether Respondent in good faith doubted the Union's majority status and/or the appropriateness of the unit and (2) what unit was appropriate. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a strike if the Respondent agreed to the holding of an election other than by the Board. By telegram dated July 31, addressed to Plant Manager O'Donnel, the Union claimed to represent a majority of the employees in an appropriate unit, agreed to prove its majority through any acceptable way other than a Board election, and concluded that "unless said procedure is acceptable to you we have no other recourse but to strike and to allege unfair labor practices against you for refusal to bargain." At the August 6 meeting with Respondent's representatives and the State Mediator, Respondent insisted on a Board-conducted election, which was unacceptable to the Union because such an election could not be held before November 13. Union President Mazzocchi testified that "we told him [Respondent's president] that we were prepared to strike the plant to earn recognition as the legitimate collective bargaining agent for the employees." Tierney testified that they told the Company they would have to go on strike if they refused to recognize the Union, that after the negotiations broke down "we told Mr. Merton and Mr. Aberman [Respondent's president and attorney] that we would have to go on strike since the Company refused to recognize the Union, and we gave them a strike deadline till 12 noon the next day." Urlaub testified that "we told the mediator that Tierney and myself were sent there with specific instruction from the men that either the Union has to be recognized at this time or we would be forced to stop working." After the meeting broke up, Tierney returned to the plant about 6 p.m. and, in response to Wagshul's question, admittedly stated that the only thing that went on at the meeting was that the Company refused to recognize the Union and that "the Union would have to go on strike for recognition." The strike began the fol- lowing day. Employee Paollela testified that he went out on strike "because the Company refused to recognize the Union as bargaining agent." The evidence is overwhelming, and I find, that the strike was caused solely because of the Respondent's refusal to recognize the Union unless it first won a Board- conducted election, conduct which does not constitute an unfair labor practice, as previously found. Nor does the record support any other finding than that the strike was prolonged by the same conduct. Accordingly, I find that the strike was neither caused nor prolonged by unfair labor practices and hence at no time consti- tuted an unfair labor practice strike. C. Alleged interference, restraint, and coercion 1. By Process Engineer Melvin Wagshul The General Counsel adduced testimony to the effect that in May or June 1958, while employee Paollela was complaining to Wagshul about the shift-rotation scheduling, Wagshul stated that Paollela was griping too much, that he would be fired if he did not keep quiet, and that he was thinking of firing three-fourths of the men anyway. I find that even if such a statement was made, it is an isolated instance not warranting the finding of a violation of the Act or the issuance of a Board order. The General Counsel also adduced testimony to the effect that (1) during the week before August 5, Wagshul asked Paollela if he knew who the union committee- men were, stating that the Union was trying to petition for a vote, and (2) sometime in August told employees Paollela and Lombardo that they could earn up to $4 an hour without a union, explained the benefits they were getting from the Company without a union, and asked what they had to gain by going out on strike. Assuming that the statements were made, I find that they do not constitute unlawful interro- gation or promises of benefit but were expressions protected by Section 8(c) of the Act. John Lombardi testified that (1) in June 1958, when the Carpenters was picketing Rubber Corporation, Wagshul asked him if he knew who the seven men were who voted for the Carpenters, and then stated that he intended to fire three-fourths of the men anyway; and (2) on August 5, Wagshul bought him some coffee and offered him a 25 cents per hour raise if he would stay with the Company. Wagshul denied having made the above statements. I do not credit the testimony of Lombardo hereinabove set forth. John Lombardi testified that on August 6, Wagshul told him he was due for a raise soon and then asked, "By the way, did you join the Union?" Lombardi stated that Wagshul would have to ask the Union's representative. Wagshul then stated. "Well, I guess that's it." Wagshul gave a different version of this conversation. It is not disputed that Lombardi had not yet completed his 3 months' probationary period, at the end of which he would automatically receive a raise. Under all the INSULAR CHEMICAL CORPORATION, ETC. 101 circumstances, I find nothing unlawful in Wagshul's statements and conduct even accepting Lombardi's version of the incident.16 2. By Plant Manager O'Donnel Paollela testified that on July 30, while he was standing at the panel board working overtime, O'Donnel came up waving a telegram and asked if Paollela could tell him who the committeemen were, whom he could get in touch with to notify on this telegram, that he had "received a message that a strike would be pulled if recognition wasn't established." Assuming this incident occurred as testified by Paollela, I find nothing unlawful in O'Donnel's statements or conduct. 3. By Maintenance Engineer Philip Gately Employee Jakacki testified that while he was at work on the morning of August 7, Gately asked him if the Union was forcing him to go out on strike, and that he replied he was doing it of his own choosing. As Gately did not testify, I credit Jakacki in this respect. However, I find nothing coercive or unlawful in Gately's inquiry. 4. By Vice President Wilson The General Counsel adduced testimony to the effect that (1) in August during the strike Woodrow Wilson told some pickets that they had no business being on strike, asked what their gripes were and why they had not come to him with their complaints; and (2) in November he told some pickets that they were not needed any longer, that the Company was going to buy resin from Japan and they no longer had their jobs. The record shows that the strikers were replaced during the strike, conduct which was not unlawful as they were not unfair labor practice strikers. Assuming that Wilson made the statements heremabove set forth, I find that, under the circumstances, they were not unlawful. 5. By bargaining directly with individual employees The General Counsel sought to adduce testimony to the effect that Respondent had dealt with some unit employees individually with respect to wage, hours, and working conditions, after the Union had claimed majority representation and requested recognition. However, since I have found that the Union at no time represented a majority of the employees in the alleged appropriate unit, it was not unlawful for Respondent to deal with the employees individually even assuming that such was the case. 6. By depriving employees of the use of premises and evicting them from said premises During the strike in August the strikers erected a tent, with strike signs, on land across from the entrance road to Respondents' plants. The tent was used by the strikers as a shelter and for the dispensing of coffee. On January 1, 1959, Respond- ents leased the land and other parcels of land adjacent to the plant entrance and on January 7 served the Union with a notice to vacate the premises because they were trespassers. The Union complied with the notice and vacated the premises. The foregoing facts are not in dispute. The General Counsel contends, as the complaint alleges, that the land was purchased and the Union deprived of the prem- ises for the purpose of preventing the Union and its adherents from engaging in self- organization and mutual aid and protection. The Respondents contend that there is no evidence that such was their purpose, that there was no proof that the eviction interfered with the strikers' concerted activities, and that the strikers could, and did, picket on public portions of the road effectively. Assuming the correctness of the General Counsel's position, I find this to be such an isolated incident as not to warrant a finding of a violation of the Act or the issuance of a Board order. D. Alleged discrimination in hire and tenure of employment By letter dated February 24, 1959, the Union informed Respondents' attorneys that the strikers were offering to return to work unconditionally. In its reply letter 10 Other testimony adduced with respect to Wagshul involved incidents which occurred before the 10(b) period. Under the circumstances disclosed by this record and in view of my other findings, I find that no useful purpose will be served by making, and hence it is unnecessary to make, findings with respect to them. 5776S4-6l-vol 12S 8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of March 13, 1959, Respondents' attorney advised that the jobs of all strikers had either been filled or eliminated prior to February 24, and that, in any event, the Respondent would not reemploy some of the strikers because of alleged misconduct during the strike. The undisputed evidence shows that prior to the request for reinstatement (1) some of the strikers' jobs had been eliminated as a result of the merger of Respondent Rubber with Respondent Insular, and (2) the remaining jobs of the strikers had been filled during the strike. As the strike was not an unfair labor practice strike, it was not discrimination in violation of the Act for Respondents to refuse to reinstate or reemploy the strikers under the circumstances. 17 CONCLUSIONS OF LAW 1. Respondents are 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. The record does not preponderantly establish that Respondents have violated Section 8(a) (1), (3), and (5) of the Act. [Recommendations omitted from publication.] 17I therefore find it unnecessary to determine whether the strikers engaged in un- protected activity during the strike. Ozalid Division of General Aniline & Film Corp. and Printing Specialties & Paper Products Joint Council No. 2, Inter- national Printing Pressmen & Assistants' Union of North America, AFL-CIO. Case No. 01-CA-3701. July 19, 1960 DECISION AND ORDER On March 28, 1960, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a brief in support of the Intermediate Report. 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaint.] MEMBERS BEAN and FANNING took no part in the consideration of the above Decision and Order. 128 NLRB No. 26.