Walsh-Lumpkin Wholesale Drug Co.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question. Based on the findings and reasons set forth above, I shall recommend' dismissal of the complaint in its entirety. Upon the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAw 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not .engaged in unfair labor practices as alleged in the complaint.8 [Recommendations omitted from publication.] 8 As the alleged violations of Section 8(a)(1) of the Act are derivative of Section 8(a) (3) they, too, fall when 8 (a) (3) falls. Walsh-Lumpkin Wholesale Drug Company and International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local 878. Case No. 26-CA-913 (formerly 15-CA-1668). October 6, 1960 DECISION AND ORDER On May 24, 1960, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor prac- tices and recommending that it.cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and the Respond- ent also filed a brief in support of its exceptions. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions and recommenda- tions of the Trial Examiner with the following additions and modifications. 1. The Respondent has made a number of procedural objections to the proceedings. They are : (a) The hearing was unauthorized because no valid charge was filed with the Board. The charge filed was signed "Odell Smith, President, by James E. Youngdahl, Attorney." The Board's Rules (Section 102.11) provide that a charge "shall be in writing and signed, and either shall be sworn to . . . or shall contain a -declaration by '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 Rodgers and Fanning]. 129 NLRB No. 31. WALSH-LUMPKIN WHOLESALE DRUG COMPANY 295, the person signing it . . . that its contents are true and correct to- the best of his knowledge and belief." Respondent contends that on its face the charge was not sworn to by the person signing it. We do not agree. We find that the signature on the charge met the re- quirements of the Board's rule. In any event, the Respondent can point to no prejudice resulting from the alleged improper signing thereof2 (b) The Trial Examiner erred in overruling, for the most part,. Respondent's request for a bill of particulars. The complaint named the dates and agents through whom Respondent allegedly committed certain specified violations of Section 8(a) (1). In response to Re- spondent's request for abill of particulars, the General Counsel fur- nished, on order of the Trial Examiner, the places where these unfair labor practices were alleged to have been committed. However, the° Trial Examiner rejected Respondent's demand for the names of employees who were the alleged victims of the unfair labor practices as well as a more detailed statement of the practices. The complaint and the bill of particulars together adequately advised Respondent of the nature of the violations charged, the manner by which Respond- ent had engaged in unfair labor practices, and the approximate times and places at which such acts had been committed. Accordingly, the denial of the request for additional particulars was not erroneous or prejudicial.3 (c) The Trial Examiner erroneously refused Respondent's request to exclude the named discriminatees from the hearing room when they were not testifying. The Board has held that alleged discriminatees are entitled to be present during the taking of all testimony because, in effect, they occupy the status of complainants.' (d) After two witnesses called by the General Counsel, Melvin Gentry and Don Fulenwider, had been fully cross-examined by Re- spondent and excused by the Trial Examiner, Respondent for the first time moved for the production of any pretrial statements which they may have signed for the General Counsel. The Trial Examiner denied the request upon the ground that it had come too late.-' He stated that he would not recall the excused witnesses for further cross-examina- tion. The proper time to request production of pretrial statements by witnesses for the General Counsel, the Trial Examiner said, is at the close of direct examination so that the statements may be used for cross-examination. In Ra-Rich,' the Board said : ". . . the holding 2 Union Starch & Refining Co. v. N.L.R.B., 186 F. 2d 1008, 1013 (C A. 7), cert. denied 342 U.S. 815. 8 United Mine Workers of America, District 31, et al. (L E Cleghorn), 95 NLRB 546, 548; Cadillac Marine & Boat Company, 115 NLRB 107, 109 f Reckert Carbide Die, Inc., 126 NLRB 757; Lewis Karlton, rl/b/a Consoltidated F7 ame Company, 91 NLRB 1295. 5 In the case of other witnesses for the General Counsel, pretrial statements were fur- nished Respondent at its request made at the close of direct examination of such witnesses. °Ra-Rich Manufacturing Corporation, 121 NLRB 700, 701 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Jencks case applies to Board proceedings and affords parties thereto, upon proper demand, the right to production for purposes of cross-examination of pretrial statements made by witnesses who have already testified in such proceedings." As stated by the Trial Examiner, the proper time for requesting pretrial statements is at the close of direct examination of witnesses. It would disorganize hear- ings if, after a witness has been fully cross-examined and left the hearing room, a respondent were given the right to demand pretrial statements and of necessity to recall a witness for further cross- examination. A decision whether to recall a witness for additional cross-examination is within the Trial Examiner's allowable area of discretion. We find no prejudicial error in the Trial Examiner's rul- ing that he would not permit such recall in this case and therefore in his further ruling rejecting the request for the pretrial statements of witnesses Gentry and Fulenwider. (e) Respondent was unlawfully prejudiced by the ruling of the Trial Examiner denying Respondent's motion made before the hear- ing that the General Counsel produce any statements made by the al- leged discriminatees or in the alternative that discovery depositions of such discriminatees be permitted. Board employees are prohibited from producing any records from Board files, except after a witness called by the General Counsel has testified at a hearing.? As to the request for discovery, the Board's procedures make no provision there- for and the lack thereof has been held not to be a denial of due process .8 2. Respondent contends that the Trial Examiner improperly di- rected the immediate reinstatement of all 13 alleged discriminatees inasmuch as the record shows that it is now performing the work of the 13 with only 9 replacements. We find merit in this contention. It is possible, in view of the reduced number of employees now perform- ing the work of the discriminatees, that some of the latter might have been laid off subsequent to the commencement of the strike for non- discriminatory reasons. Under these circumstances, we shall modify the Trial Examiner's recommended remedy by providing that, if there is not sufficient work for all discriminatees after discharging all replacements, available positions shall be distributed among them without discrimination in accordance with the system of sen- iority or other nondiscriminatory practices heretofore applied by the Respondent in the conduct of its business. Respondent shall place those employees, if any, for whom no employment is available after such distribution on a preferential hiring list, with priority in accord- T Board Rules and Regulations ( Series 8, 1959 ), Section 102.118; Ra-Rich Manufactur- ing Corporation, 121 NLRB 700. 8 Plumbers and Steamfitters Union Local 100, et al. (Beard Plumbing Company), 128 NLRB 398; N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748, 751 (CA. 9). WALSH-LUMPKIN WHOLESALE DRUG COMPANY 297 ante with such system of seniority or other nondiscriminatory prac- tices heretofore applied, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. In the case of discriminatees for whom no work is available, backpay shall terminate on the date of placement on the preferential hiring list .9 ORDER Upon the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Walsh-Lumpkin Wholesale Drug Company, Texarkana, Arkansas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 878, or in any other labor organization, by refusing reinstatement to unfair labor practice strikers upon their unconditional request, or by discriminating against its employees in any other manner in regard to their hire or tenure of employment or any terms or conditions of their employment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closures Act of 1959. (b) Refusing, upon request, to bargain collectively with the above- named Union as the exclusive representative of all truckdrivers and warehousemen, including order fillers, checkers, stockmen, inventory clerks and packers, but excluding all office clerical employees, sales employees, guards, and supervisors as defined in the Act. (c) Bypassing the above-named Union as the employees' duly chosen exclusive collective bargaining representative and dealing di- rectly with the employees. (d) Holding out to the employees the prospect of a higher wage scale than had been offered in negotiations with their duly chosen ex- clusive collective-bargaining representative if they would vote to drop said representative and form a company union. (e) Offering to help its employees to organize a company union and promising reimbursement by Respondent for any attorney's fees in- curred in connection therewith. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of 6 United Butchers Abattoir, Inc., 123 NLRB 946, 959. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or -to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 878, as the exclusive representative of the employees in the aforestated appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Offer to all strikers named in the complaint immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay each may have suffered be- cause of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy" as modified herein. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. (d) Post at its Texarkana, Arkansas, plant copies of the notice attached hereto marked "Appendix A." 10 Copies of the said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by the Respondent's authorized repre- sentative, be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date hereof, what steps have been taken to comply herewith. 1° In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " WALSH-LUMPKIN WHOLESALE DRUG COMPANY 299 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations -Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 878, or in any other labor organization, by refusing reinstatement to unfair labor practice strikers upon their uncon- ditional request, or by discriminating in any other manner in regard to our employees' hire or tenure of employment or any term or condition of employment. WE WILL NOT bypass the above-named Union as our employees' duly chosen exclusive collective-bargaining representative and we will not deal directly with our employees. WE WILL NOT hold out to our employees the prospect of a higher wage scale than we have offered in negotiations with their duly chosen exclusive collective-bargaining representative if they would vote to drop said representative and form a company union. WE WILL NOT offer to help our employees to organize a company union nor promise reimbursement for any attorney's fees incurred in connection therewith. WE WILL NOT in any other manner, interfere with, restrain, or coerce our employees in the exercise of their right to self -organiza- tion, to form a labor organization, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 878, for the following appropriate unit with respect to rates of pay, wages, hours of work and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truckdrivers and warehousemen, including order fillers, checkers, stockmen, inventory clerks, and packers, but ex- 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eluding all office clerical employees, sales employees, guards,, and supervisors as defined in the Act. WE WILL offer to the following-named strikers full reinstate- ment to their former or substantially 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 the result of the discrimination against them. Marcellus V. Blankenship Eugene Howard Cassie Davenport Jewel C. Long Winfield D. Dickson William R. Morrison Donney U. Tulenrider Terell M. Shelton, Jr. Everett Gray Timothy A. Shelton Leon Haynes Bobby Joe Tolley Mack Hill All our employees are free to become, remain, or refrain from be- coming or remaining, members of the above-named Union or any other labor organization, except to the extent that this right may be affected by a lawful agreement requiring membership in a labor or- ganization as a condition of employment. WALSH-LUMPKIN WHOLESALE DRUG COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by International Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America , Local 878, herein called the Teamsters or the Union, the General Counsel of the National Labor Relations Board , by the Regional Director for the Fifteenth Region (New Orleans, Louisiana ), issued his complaint, dated December 18, 1959, against Walsh-Lumpkin Wholesale Drug Company, herein called the Respondent . With respect to the unfair labor practices, the complaint as subsequently amended alleges, in substance that : ( 1) On January 30, 1959, the Union was certified by the Board's Regional Director as the exclusive bargaining representative of all the employees in a designated appropriate unit; (2 ) at all times on and after July 22 , 1959, Respondent refused to bargain with the Union, upon the Union's request; (3) during the period from July 22 to August 3, 1959 , Respond- ent engaged in specified acts of interference , restraint, and coercion and bargained directly and individually with unit employees ; (4) a strike which occurred from August 3 to December 1, 1959 , was caused and prolonged by Respondent's unfair labor practices ; (5) on December 1 and thereafter Respondent refused to reinstate the strikers, upon their unconditional request , because of their union and concerted activities; and (6 ) by the foregoing conduct Respondent engaged 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 answer, Respondent admits the Union 's certification in an appropriate unit and that a strike occurred from August 3 to December 1, 1959 ; denies all unfair labor practice allegations ; and avers that the strike was an economic strike and that WALSH-LUMPKIN WHOLESALE DRUG COMPANY 301 the strikers were denied reinstatement because their places had been filled and there were no other vacancies. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin on March 21 to 23, 1959, in Texarkana, Arkansas. 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, I received briefs which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent Walsh-Lumpkin Wholesale Drug Company is an Arkansas corporation with its principal office and place of business in Texarkana, Arkansas, where it is engaged in the wholesale sale and distribution of supplies for retail drug stores located in the States of Arkansas, Texas, and Oklahoma. During the year ending 1959, Respondent purchased supplies which were valued in excess of $1,000,000, and 99 percent of such supplies were shipped directly to Respondent from points outside the State of Arkansas; during the same period, Respondent's gross sales were in excess of $1,000,000, and 75 percent of the materials sold were shipped to points outside the State of Arkansas. Upon the above admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent stipulated, the record shows, and I find, that International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 878, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issues Respondent admits that as a result of a Board-conducted election won by the Union on January 22, 1959, the Union was certified on January 30 as the exclusive collective-bargaining representative of the employees in the appropriate unit herein set forth. Thereafter, a series of four or five negotiating meetings were held between representatives of the Union and of Respondent from February 9 to July 28, 1959, without final agreement having been reached on all the provisions of a contract. On August 3, 1959, the employees went out on strike which continued until December 1, 1959. Thereafter, all strikers unconditionally applied for reinstatement but none were reinstated as of the date of the hearing in this case. The principal issues litigated in this proceeding are: (1) whether Respondent engaged in conduct which constituted a refusal to bargain within the meaning of Section 8(a)(5) of the Act; (2) whether the strike of August 3, 1959, was caused and prolonged by unfair labor practices of Respondent; (3) whether Respondent discriminated with respect to hire and tenure of employment by refusing to reinstate the strikers upon their unconditional request following the termination of the strike; and (4) whether Respondent, through its agents and representatives, engaged in conduct which independently violated Section 8(a)(1) of the Act. B. Respondent's managerial or supervisory hierarchy The operating managers of Respondent are William Pearson Walsh and Ben Pugh Walsh, brothers, who are respectively secretary-treasurer and vice president of Respondent and will hereinafter be referred to as Pearson Walsh and Pugh Walsh. Pearson is in charge of the collecting while Pugh is in charge of the buying. Their father, William P. Walsh, is president of Respondent and is in semiretirement. Respondent's plant consists of a shipping department and a warehouse, separated by a partition. About 16 employees work in the shipping department in all classifica- tions, including truckdrivers, order fillers, packers, and checkers. The building con- sists of three floors, and the order fillers work on all floors. Pearson Walsh's office is in the front part of the building. James Roy is admittedly the foreman of the ware- house. In issue are the status of Pearson Walsh's son, Benjamin Pope Walsh, a minor stockholder employed by Respondent and hereinafter referred to as Pope Walsh, and that of Melvin Gentry, employed in the shipping department. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Melvin Gentry has been employed in the shipping department for 17 years. By 1959, he was receiving $1.89 an hour, which he admitted was about 25 cents per hour more than that received by the other employees. While Gentry does some physical work himself, he and Pearson Walsh admitted that Gentry assigns work to the men in the shipping department to keep them busy and also directs the men as to how they should perform their work. Gentry also admittedly makes overtime assign- ments to the employees. Gentry admitted that he had been authorized by Pearson Walsh to use his own judgment as to whether to give the employees permission to take time off when requested, and that he has frequently exercised that authority. Pearson Walsh admittedly discusses the employees' work with Gentry and asks Gentry's opinion as to how the men are performing their job. When employee Dickson was hired as an order filler, Pearson Walsh told him that Gentry was his- supervisor and that Dickson should take orders from Gentry. Pearson Walsh admitted that he would follow Gentry's recommendations with respect to hiring and discharging employees. Gentry testified that he did not sign a union membership- ,card because he did not know if he was eligible on account of his supervisory "qual- ities." He further testified that-while Pearson Walsh was his immediate superior, he also took advice from Pope Walsh and usually followed such advice., Pope Walsh testified that he was a "management trainee," and performed routine- work in every department and also traveled with the salesmen to meet the customers. As the only remaining son in the Walsh family, Pope admittedly is expected someday to take over the job of his father, Pearson Walsh. Pope is paid $450 per month; the only other persons paid on a monthly basis are the corporate officers, the office man- ager, and the salesmen. Pearson Walsh admitted that he has confidence in Pope's ability to conduct Respondent's business, that he consults Pope frequently on the conduct of the business and has discussed many phases of the business with him, including employee wages. Pearson Walsh further admitted that he has authorized ,and directed Pope to give instructions to the employees in the shipping department about what they should do on the job and to admonish the employees to work faster when necessary. In the fall of 1958, Gentry told one employee, who had inquired if the employees were supposed to take' instructions from Pope Walsh, that Pope Walsh was just as much a boss as Gentry was. During Gentry's absence on vacation in the latter part of July 1959, Pope Walsh admittedly called the employees together in a group in a corner of the shipping department, criticized them for slowing down in their work, warned them that they could be fired for it, and told them that "You are a good bunch of fellows and I want you to stay but all I want you to do is get out there and get those orders in and get the lead out and get out there and fill those orders." He further admitted that he told the employees on several occasions to "get the lead out." Pearson Walsh admitted that his son, Pope, and Gentry occupied a position parallel with that of James Roy who was the foreman of the warehouse, that both Pope and Gentry had the authority, which the record shows they exercised, to adjust minor employee grievances, to handle anything relating to the smooth running of the work, and to transfer employees from one floor to another when such transfers were necessary in their judgment. Gentry admitted that he and Pope Walsh are on a similar "footing," that they put their ideas together and work "hand in hand," and that, among other things, they get together and decide whether employees should work overtime. Pope Walsh and Gentry, with Pearson Walsh's knowledge and authorization, presided over the weekly meetings of the shipping department em- ployees held at the plant every Thursday morning and spoke to the employees about matters pertaining to the work. At these meetings, Gentry and Pope Walsh would sometimes "get on the employees" about getting the items out on time . On occasion, Pearson Walsh was also present and spoke at such meetings. Upon the above admitted and undisputed facts, I find that Melvin Gentry and Pope Walsh possess the authority, which in fact they exercised, which renders them supervisors within the meaning of Section 201) of the Act. I further find that Pearson Walsh held them out to the employees as management representatives and that therefore on that ground alone they were agents of Respondent. C. The relevant events 1. Conduct prior to the election as background 1 I find, upon the basis of the undenied and credited testimony of employees Howard, Blankenship, Davenport, and Morrison, that in January 1959, prior to the scheduled Board election, Pearson Walsh engaged in the following conduct: 1 No unfair labor practice findings are based on the conduct set forth in this section because it occurred more than 6 months before the filing of the charges in this case WALSH-LUMPKIN WHOLESALE DRUG COMPANY 303 Howard and Blankenship were individually called into Pearson Walsh's office and interrogated by him as to whether they had signed a union membership card. When they replied in the affirmative, Pearson Walsh told them that if they voted the Union in, the employees would lose the various current benefits and favors which they were receiving from the Company, such as bonuses, loans, the Christmas dinner party, and the privilege of taking time off for personal matters without punching the timeclock. Employee Davenport was also called in Walsh's office and interrogated by him in a similar manner. Davenport also admitted having signed a union card. Pearson, Walsh had Davenport's pay record there, which showed how much he was receiving, per hour, the number of days on vacation, and the number of days he was sick. Walsh then asked Davenport if he thought he "was doing the Company right by join- ing the union," and pointed out that if he were in Davenport's place he (Walsh) "would be more of a man" than "to do something like that," emphasizing that he (Walsh) "would quit" and that he wished Davenport would quit. Also, at one of the weekly employee meetings conducted by Pope Walsh and Melvin Gentry, Pearson Walsh spoke about the Union and pointed out some of the current employee benefits which the employees would lose if the Union were voted in. 2. The status of the negotiations on July 28, 1959 The last bargaining conference before the strike was held on July 28, 1959; the Union was represented by Assistant Business Agent Glover, while Respondent was represented by Pearson Walsh and Stewart, Respondent's attorney. The only issues on which the parties were in disagreement at that time were wages, union dues check- off, and insurance. The Union had previously rejected Respondent's offer of a 5-cent per hour wage increase for each employee. Glover felt that if an agreement could be reached on wages, "everything else would be ironed out," and he received the same impression from Stewart. It was at this meeting that Stewart offered an additional 5-cent per hour for four or five named employees and indicated that if that were acceptable to the Union, he thought the other matters in issue could be settled. Glover stated that he did not think that proposal would be acceptable to the membership. No date at that time was set for another meeting because Glover left with the "distinct" impression that it was Stewart's next move to submit his proposal in writing or make arrangements for a further meeting.2 3. Pope Walsh's conversation with Donny Fulenwider In the latter part of July, Pope Walsh had the following conversation with em- ployee Donny Fulenwider during working hours; Pope stated that the Company and the Union were at a stalemate and that he wanted to help the employees reach a settlement of some kind. Pope then explained that he had worked up a scale of wages and that he would try to get them to be put into effect if the employees "dropped the Union." Fulenwider asked why an employee by the name of Dean Lynn had just been hired at a higher rate than the employees who had been there longer. Pope Walsh replied that that was the way his dad was. Either in the same conversation or in another conversation held about the same time, Pope Walsh told Fulenwider that if he would talk to the employees and get them to agree to "drop the Teamsters Union," Pope thought he could get his father to agree to a 10-cent per hour wage increase the following Monday. Fulenwider replied that it would be best for Pope to take this matter up with Melvin Gentry. In. response to Fulenwider's query as to why the Company was against the Teamsters Union, Pope Walsh stated that the Union would "break the company." Fulenwider then asked why he had been selected for this purpose. Pope Walsh answered that (Section 10(b) of the Act). However, it is well settled that such evidence may be ad- mitted and considered as background shedding light and imparting meaning to the Re- spondent's conduct which did occur within the 6-month period which is after April 9, 1959. See, e.g., Textile Machine Works, Inc., 96 NLRB 1333, 1350-1351, 105 NLRB 618, enfd. 214 F. 2d 929 (C.A. 2) ; Sharples Chemicals, Inc., 100 NLRB 20, 30, enfd. 209, F. 2d 645 (C.A. 6) ; F.T C. v. Cement Institute, 333 U.S. 683, 705. 2 The findings in this section are based on the undisputed and credited testimony of Glover Although Pearson Walsh was under the impression that the additional 5 cents for specific individuals had been discussed at an earlier meeting, he admitted that "I just don't remember" and that "it could have been" at the July 28 meeting 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he thought Fulenwider was a bit smarter than the other employees. However, Pope agreed to take the matter up with Melvin Gentry, who was on vacation that week.3 4. Meeting at Pope Walsh's home with Gentry and Pirtle on August 1 Pearson Walsh admitted that on Friday, July 31, he had a discussion in his office with his son and suggested that Pope get in touch with Melvin Gentry to see if they could not talk to the boys to have them get back to work at the pace they have previously been working .4 At Pope Walsh's invitation, Melvin Gentry and Kenneth Pirtle, employed as a checker in the shipping department, met with Pope at the latter's home on Saturday, August 1. Gentry had just returned from a 2 weeks' vacation. Pope asked Gentry to use his influence to try to get the men back to work at their normal pace. Pope admitted that he told Gentry and Pirtle that he could not understand why "a bunch of men would have to go to somebody for help," that if they wanted to do some- thing "they should have gone and banded themselves together or gone individually to the employer and asked him for an increase in wages, instead of going and joining that and letting somebody else do their talking for them." Gentry credibly testified that Pope stated he was also interested in trying to work something out to the employees' satisfaction in the way of an organization, "something like a com- pany union," and that he wanted Gentry to talk to the employees to see if they would be interested in it , and that if the employees were interested he (Pope) would be glad to help out in "organizing a company union" and was "sure" that the Company would take care of their attorney's fees. Pope admitted that he told Gentry that if the employees "felt like they wanted to belong to a union they should form a 3 The findings in this section are based on the credited testimony of Donny Fulenwider, which was 'orroborated in part by employee Winfield Dickson who overheard part of the conversation. Pope Walsh admitted having two conversations with Fulenwider about that time. He admitted that in one conversation the matter of hiring a new employee at a higher rate was mentioned. He testified that the asked Fulenwider if he would be willing to talk to the employees to get them to go back to work at their former pace and sug- gested that Fulenwider get together the other employees and as a group talk to Pope Walsh'i father about a raise He also testified that in another conversation he told Fulenwider that if there had not been a union in the plant several of the employees would already have received pay increases, that he understood his father had made an offer to the Union to give certain employees a 10-cent per hour wage increase and the remaining employees a 5-cent per hour wage increase . He testified that he did not recall anything else that was said, and denied saying that if the employees dropped the Teamsters Union, they "would be guaranteed a 10-cent raise Monday morning." Under all the circum- stances, including my observation of the demeanor of the witnesses, I do not credit the testimony of Pope Walsh to the extent that it contradicts that of Fulenwider. 4 Employee T. O. Shelton testified that during the same week he overheard a conversa- tion between Pearson Walsh and his son, Pope, while they were in the display room, that as soon as the conversation began Shelton motioned to employee Long who joined him, that Pope wanted to get the employees a higher wage, that Pearson replied that the minimum wage law was going to move up the lower wage scale and that he might as well move the employees up to that if they would drop the Teamsters Union and take the company union." On cross-examination, Shelton testified that it was Pope who asked his father if a wage increase could not be given to the employees "if they would drop the Teamsters Union and take a company contract," and that Pearson replied that "he might as well see if they could work up something like that" because the minimum wage law would be increased and 'he would have to raise the wages to $1.25. Long testified that, while he did not overhear the entire conversation, he 'heard Pope ask his father, Pearson, if he would not consider raising the order fillers to $1 25 per hour, and that Pearson agreed that it might be a pretty good idea because he thought the wage and hour law might be changed to raise the minimum to $1.25 per hour. Pearson Walsh testified that he did not recall such a conversation, admitted that it would not have been unusual for him to have discussed employee wages with Pope, and denied discussing the formation of a company union with Pope. Pope Walsh admitted having a conversation with his father in the display room about raising employee wages. He testified that he told his father that he understood the minimum wage law would soon be amended and that his father would be better off to raise the employees to $1.25 per hour minimum because he would have to do it sooner or later, and that his father replied that he would take it under consideration Upon consideration of the foregoing, I do not, under all the circumstances, credit Shelton's version of this conversation WALSH-LUMPKIN WHOLESALE DRUG COMPANY 305 company union." They then discussed the wage scales of three other wholesale drug houses which Pope had taken from his father's desk. These were for McKesson & Robbins of Fort Smith, Archer Drugs of Little Rock, and Barrons of Tyler. The first two companies admittedly were represented by a union. Some of these rates admittedly were higher than those at Respondent. Pope gave the wage scales to Gentry and suggested that Gentry might discuss the highest wage scale with the men and tell them that "in case they did form a company union that they could probably work up to those rates." Gentry and Pirtle agreed to get in touch with all the employees who belonged to the Teamsters Union and have them come out to Gentry's house.5 5. Employee meeting at Gentry's home on August 1 Gentry and Pirtle contacted all the employee members of the Teamsters Union to attend a meeting at Gentry's home that Saturday evening on August 1. About 15 employees attended, including truckdrivers , order fillers, packer, and checkers. Gentry presided and told the men that he and Pirtle had discussed their problems with Pope Walsh and that Pope had asked him to find out if the men would be interested in forming a company union and dropping the Teamsters Union, that if they were interested in a company union they could have their own lawyer draw up the contracts and that Pope said they would be reimbursed by the Company for the attorney 's fees. Gentry then read the wage scales of the neighboring drug companies, and said that they would take the highest wage scale and could probably work out something whereby the employees could eventually reach those rates, and that the new scale would be put into effect as soon as the employees voted out the Teamsters Union and agreed to have a company union . The highest wage scale read were those of the McKesson & Robbins Company where the employees in each classification were receiving a considerably higher rate, in some cases as much as 30 cents per hour, more than what Respondent had offered the Union during the negotiations . Gentry also stated that this was all Pope Walsh's own idea, that Pope said he was pretty sure he could get his father to agree to most of it, and that Gentry would report the results of this meeting to Pope Walsh. Gentry then asked for a standing vote of those employees who wished to remain with the Teamsters Union , and that those employees should remain seated who were interested in having Gentry find out more about forming a company union. All the employees in attendance stood up, thereby voting to stick with the Teamsters Union.6 6. Gentry reports to Pope Walsh, and Pope notifies his father, Pearson Sometime on Sunday afternoon , August 2, Pope Walsh telephoned to Gentry and inquired as to how things went at his home. Getry replied that "nothing had come of the meeting" at his home, and that "the boys were not in favor of anything" along the lines which he and Pope had discussed the preceding day. Pope admittedly then stated that "if they were not interested there is nothing I can do." 7 Pope testified that on Sunday evening he telephoned to his father, Pearson, re- ported that he had talked to Melvin Gentry and that Gentry had stated "nothing has come of it," and that Pope did not know what the boys were going to do but that it "looked hopeful." According to Pearson Walsh's testimony , Pope stated on the telephone that he and Melvin Gentry had gotten together and that they thought the "trouble we had been having would be worked out." 7. Meeting of Glover and employee committee with Pearson Walsh on Monday morning, August 3 On Sunday morning, August 2, employee Davenport telephoned to Glover, the Union's assistant business agent, at his home in Little Rock, and informed him of the proposals that had been submitted to the employees at the meeting at Gentry's home. Glover thereupon went to Hot Springs and discussed the situation with 5 The findings in this section are based on the mutually consistent testimony of Pope Walsh, Melvin Gentry, and Kenneth Pirtle 9 There is no serious dispute concerning the findings in this section , which findings are based on the mutually consistent testimony of witnesses for the General Counsel and for Respondent 7 The findings in this paragraph are based on the mutually consistent testimony of Pope Walsh and Melvin Gentry 586439-61-vol. 129-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union President Smith, who had already been informed of what had transpired at the meeting at Gentry's home. Smith advised Glover to go to Texarkana to see what the situation was. Glover arrived at Respondent's plant about 8:30 a.m, on Monday, August 3. He went to the shipping department and asked Davenport to select three other employees who could confirm Davenport's report as to what had occurred at the meeting at Gentry's home. Glover then asked Pearson Walsh if he would meet with Glover and an employee committee someplace where they could talk privately. At Walsh's suggestion, they all went upstairs in the display room. Present with Glover was an employee committee consisting of Cassie Davenport, Donny Fulen- wider, Winfield Dickson, and Tim Shelton. Glover then told Pearson Walsh of what had been reported to Glover as having transpired at the meeting at Gentry's home on Saturday evening, that the Company, acting through Gentry, had offered the employees a greater wage increase than Respondent had offered the Union if they would drop the Teamsters Union and establish a company union and that the Company would reimburse the employees for any attorney's fees incurred. Glover asked the employee committee members if he had accurately and fairly reported what had occurred at that meeting, and they replied that he had. Glover then asked Pearson Walsh if he had any knowledge of these matters. Walsh admitted that he had. Glover thereupon advised Walsh to contact his attorney, that the Union was the certified bargaining agent, and that Glover believed Walsh was doing something illegal. After a further brief discussion, Walsh refused to talk anymore about it without first consulting his attorney. Glover stated that the Teamsters Union had leaned over backward in an effort to work out a fair and equitable contract with the Company and that they had gone about as far as they could. Glover further stated that if Pearson Walsh cared to contact his attorney, he would be glad to talk to both of them to see if they could not work out some settlement because "you are on the verge of having a strike of your employees here." When Walsh stated that his attorney was out of town, Glover replied that he believed he knew where the attorney could be reached and emphasized that before they got into a strike situation they should make every effort to resolve the matter. Glover then offered to pay for the telephone call, but Walsh refused to call his attorney long distance. Glover then suggested that Walsh call his attorney at his home to see whether he had left home yet. (Glover later found out that Walsh's attorney was still at his home at that time.) Walsh refused to comply with his suggestion. Glover then accused Pearson Walsh of refusing to sign any kind of an agreement. Walsh admitted that he stated that he had been informed that a newly hired employee had been threatened by some union members and that he would not sign any contract as long as that situation prevailed. Glover then turned to the employee committeemen , and told them that if they were satisfied with what the Company had offered them (referring to the offers at the meeting at Gentry's home) and believed the Company would live up to these offers, then he advised them to take the Company Union and to tell him "to go to hell" and he would leave for Little Rock. On the other hand, Glover added, if they wanted to stay with the Teamsters and attempt to get a Teamsters' contract, they now had authority from the Teamsters to strike in view of what had "happened over the weekend." Glover concluded with the statement that if the employees met him outside within 15 minutes, they would put up a picket line, and that, otherwise, he would get into his car and go back to Little Rock.8 8. The strike commencing August 3 The employee committeemen went back to the shipping room and called a meeting of the union members. One of the committeemen reported that Pearson Walsh would not agree to anything, that if they wanted to strike, Glover was waiting for them outside, or they could take the company contract if they did not want to strike. All the employee members, about 15 or 16 in number, walked out on strike. s The findings in this section are based on the credited testimony of Glover and em- ployees Davenport, Fulenwider, Dickson, and Shelton Pearson Walsh did not dispute their testimony in any significant respect He admitted that he did not have an "accurate memory" of what was said at this meeting With respect to what Glover told him about the offers made to the employees at the meeting at Gentry's house, he testified that he did not remember whether he replied that he had heard something about it or that he did not know about it. He admitted saying that he would not do anything without consulting his attorney and that he had been told that his attorney would not be in town He also admitted refusing to telephone to his attorney. WALSH-LUMPKIN WHOLESALE DRUG COMPANY 307 By 9:30 a.m. a picket line was established, with the pickets carrying signs reading as follows: "the employees of Walsh-Lumpkin Drug Company on strike for a contract." 9. Respondent's conduct during the strike On Friday afternoon, August 7, Ben Pugh Walsh, Respondent's vice president and brother of Pearson Walsh, approached a group of the strikers, solicited them to drop the Teamsters Union and return to work, and suggested that they could always take the company union. Cassie Davenport, one of the strikers in the group, asked if it was not true that it was not the money but it was the Union that Respondent was fighting. Pugh Walsh admitted that that was true, that he did not want "those bastards from Little Rock" coming down to tell him what to do, that his dad had run the company for 49 years without anybody telling him what to do and he was not going to start now, and that they were paying a lawyer $1,000 a month to keep the Union out. Winfield Dickson, another striker in the group, expressed concern that if the men went back to work on Respondent's terms, they would not have an assurance of holding their jobs very long. Pugh Walsh again pointed out that they could still take the company union. He also told the men that he would leave some reinstatement forms at a local hotel and that anyone who wanted to go back to work without the Union could fill out one of these forms at the hotel and get reinstated. About an hour later, Pugh Walsh returned and tried to pass out the reinstatement forms to the strikers. When the men refused to take them, he reiterated that they would be left at a local hotel where the men could get them if they wished. Pearson Walsh and his father, the president of the Company, were standing on the sidewalk watching Pugh Walsh as he attempted to pass out the reinstatement forms.9 10. Termination of the strike on December 1, and the strikers' unconditional request for reinstatement On December 1, 1959, the employees unanimously voted to terminate the strike and to apply for reinstatement. That same day, Respondent was notified of the termination of the strike, and all the strikers named in the complaint, except Donny Fulenwider who was ill, applied for work to Pearson Walsh. They were all informed that they had been replaced during the strike and that no work was available for them. Fulenwider applied for work during the week of December 7 and received the same answer. D. The refusal to bargain 1. The appropriate unit and the Union's status as exclusive bargaining representative therein The complaint alleges, the Respondent's answer admits, and I find, that all truck- drivers and warehousemen including order fillers, checkers, stockmen, inventory clerks, and packers, excluding all office clerical employees, sales employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. In a Board-directed election conducted on January 22, 1959, the Teamsters Union was selected as bargaining representative by a majority of the employees in the said appropriate unit. On January 30, 1959, the Teamsters Union was accordingly certified as the exclusive collective-bargaining representative of all the employees in the aforestated appropriate unit. I find that at all times since January 30, 1959, the Teamsters Union has been, and is, the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment within the meaning of Section 9(a) of the Act. 2. Respects in which Respondent violated Section 8(a)(5) of the Act As previously found, in the latter part of July, Pope Walsh told employee Fulen- wider that he would try to get a higher scale of wages put into effect if the employees would drop the Teamsters Union, and asked Fulenwider if he would use his influence to get the employees to drop the Teamsters Union. When Fulenwider refused, Pope Walsh talked to Melvin Gentry and proposed the plan of helping the employees organize a company union if they voted out the Teamsters Union and then putting 9 The findings in this section are based on the undisputed and credited testimony of witnesses for the General Counsel. Pugh Walsh did not testify. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into effect a higher wage scale than had been offered by Respondent in its negotiations with the Union. Pope requested Gentry to find out whether the employees would be interested in such a program. Acting as Pope Walsh's emissary, Gentry informed the employees, at a meeting called by him at his home for that purpose, that Pope Walsh wanted to find out if they would be interested in forming a company union and dropping the Teamsters Union, that the Company would reimburse them for attorney's fees incurred, and then read the higher wage scales which they could eventually attain if they voted out the Teamsters Union and agreed to have a com- pany union. He then called for a vote, with the employees unanimously voting to stay with the Teamsters Union. As the Teamsters Union was still the certified bargaining representative, it was a violation of Respondent's statutory obligation to recognize and deal only with the exclusive bargaining representative for Respondent to undermine and seek to have the employees repudiate that representative by dealing with them directly and holding out the prospect of a higher wage scale than had been offered to the Union in the contract negotiations, if the employees would form a company union and vote out their duly chosen bargaining representative. And this is so even if I were persuaded, which I am not, that a bona fide impasse on wages had been reached at the negoti- ating meeting of July 28. I find no merit in Respondent's contention in its brief that it was not liable for the conduct of Gentry and Pope Walsh, herein found to be statutory supervisors and management representatives, even though Gentry had voted in the election without challenge. Gentry made it clear to the employees that these were Pope Walsh's proposals and that he was merely acting as Pope's spokesman. The employees re- garded Pope Walsh as a management representative, as in fact he was. Respond- ent was liable for the conduct of Pope Walsh. Moreover, on the preceding Friday, July 31, Pearson Walsh had authorized Pope to get in touch with Gentry and see what they could do about getting the boys back to work at their normal pace. It was pursuant to this authorization and in an effort to accomplish his father's ob- jective that Pope Walsh conceived the idea of getting a higher wage scale put into effect if the employees would drop the Teamsters Union and form a company union, and of having Gentry present these proposals at a meeting of the employees. Furthermore, on Monday, August 3, Pearson Walsh found out from Glover and from Pope about the proposals which had been presented to the employees at the meeting at Gentry's home. When confronted with these proposals by Glover, Pearson Walsh admitted that he had heard about these matters, as previously found. Neither at that time nor at any other time, did Pearson Walsh or any other repre- sentative of Respondent repudiate the conduct of Gentry and Pope Walsh in this respect. On the contrary, as previously found, during the strike Respondent adopted the proposal that the employees drop the Teamsters Union and form a company union when Pugh Walsh solicited the strikers to return to work. In view of all the foregoing, I find upon consideration of the entire record as a whole that Respondent had authorized and/or ratified the activities of Pope Walsh and Gentry in this respect, and in addition acted in such manner as to lead the employees reasonably to believe that Gentry and Pope Walsh were acting for and on behalf of management. At the August 3 meeting with Glover and the employee committee, Pearson Walsh refused to agree to offer the Union or to consider the same wage terms which had been offered to the employees through Pope and Gentry if they would vote out the Teamsters Union and agree to take a company union. Pearson Walsh displayed an adamant position in refusing to make any reasonable effort to contact his attorney in the face of an imminent strike Indeed, he admittedly stated that he would not sign any contract at all because he had been informed that a newly hired employee had been threatened by some union members. Pearson Walsh's attitude at this meeting fell far short of the statutory requirement that a good faith and sincere effort be made to reach an agreement Finally, by the conduct of Ben Pugh Walsh, Respondent's vice president, in soliciting the strikers to drop the Teamsters Union and return to work, in again suggesting the formation of a company union if they returned to work, and in admitting that it was not the money but that it was the Teamsters Union which Re- spondent was fighting and paying a lawyer $1,000 a month to keep out, Respondent was further attempting to undermine and destroy the employees' chosen bargaining representative and failing to comply with its obligation to bargain in good faith with the exclusive collective-bargaining representative.10 20 Although such conduct is not alleged as independent violations of Section 8(a) (1) of the Act, it may properly be considered in support of the allegation in the complaint that "Respondent, on or about July 22, 1959, and at all times thereafter, failed and refused to WALSH-LUMPKIN WHOLESALE DRUG COMPANY 309 Upon the basis of the entire record considered as a whole, I find that Respondent's conduct in the above detailed respects constituted a refusal to bargain in violation of Section 8(a)(5) of the Act. E. Discrimination with respect to hire and tenure of employment in violation of Section 8 (a) (3) of the Act 1. The cause of the August 3 strike The complaint alleges that the strike was "caused and/or prolonged by the unfair labor practices of Respondent." Respondent contends in its brief that the strike was caused by Respondent's refusal to make further economic concessions and that there is no proof of any casual relationship between the alleged unfair labor practices and the strike. In support of its position, Respondent relies heavily on the fact that the union membership had unanimously voted strike authorization at its meeting on June 27. However, this strike vote was pursuant to the Union's customary policy whenever an employer's first contract proposal is turned down. In order for the Local to receive the cooperation and benefits of the International in a strike, it is necessary for the Local to present evidence to it that the membership had voted to strike by a two- thirds majority. Therefore, it is the Union's policy to take a strike vote automatically when the first contract proposal is turned down so that the Local would be in a posi- tion of furnishing the International with the required evidence if it should later develop that a strike is necessary. This was the kind of strike vote which was taken on June 27. No time was set for the calling of a strike; the vote merely authorized Glover to call a strike if in his judgment the negotiations had broken down to the point where there was just no possibility of getting together. This point had not been reached prior to August 3 and no strike had been con- templated. Indeed, it was not felt necessary to apply to the International for strike sanction because, as Glover credibly testified, "we felt we were in a close area of agreement and at that point did not anticipate there would be a strike." The record is clear that everything was being done to avoid the use of a strike There was no intention of calling a strike at the conclusion of the July 28 negotiating meeting. As previously found, Glover left the meeting with the "distinct" impression that it was Stewart's next move to submit his latest proposal in writing or to make arrangements for a further meeting. I am convinced that the strike was triggered because of the proposals made directly to the employees at the meeting at Gentry's home on August 1, instead of to the Union as the certified bargaining representative, and Pearson Walsh's attitude at the August 3 meeting in acknowledging that he had heard about these matters but refusing to agree to offer the Union a contract with the same wage scale or to make any effort to contact his attorney for the purpose of discussing a contract containing similar wage proposals. Thus, Glover credibly testified to that effect. He further credibly testified that "we had never permitted the strike to occur . .. until these things or events took place Saturday, August 1st." And at the conclusion of the August 3 meeting with Pearson Walsh, Glover told the employees that they now had the authority to strike "in the light of what has happened over the week-end." ii Contrary to Respondent's further contention, the fact that the picket signs read that the employees were "on strike for a contract," is consistent with the findings herein- above made that the strike was caused by Respondent's conduct in dealing directly with the employees and offering them a contract with the prospect of a higher wage scale than had been offered to the Union if they would vote to drop the Teamsters Union and form a company union and in refusing to agree to offer the Union the same terms or to make any effort to contact its attorney for the purpose of discus- sing a contract with the Union containing a similar wage scale. I have previously found that Respondent's conduct at the meeting at Gentry's home on August 1 and at the meeting at the plant on the morning of August 3 constituted unfair labor practices violative of Section 8(a) (5) of the Act. I have further found that during the strike the Respondent, by the conduct of Vice President Pugh Walsh engaged in further unfair labor practices violative of Section 8(a)(5) of the Act. Upon the basis of the entire record considered as a whole, I am convinced and find that the strike of August 3 was caused and prolonged, at least in substantial part, bargain in good faith with the Union as the exclusive bargaining agent of all Respondent employees in the unit described in paragraph 4 above." "In view of the nature of the strike vote, the men had no authority to strike unless Glover authorized it 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent's unfair labor practices . Accordingly, I find that the strike was an unfair labor practice strike.12 2. The refusal to reinstate the strikers upon their unconditional request It is conceded that upon the termination of the strike on December 1, 1959, the Respondent refused to reinstate all the strikers named in the complaint when they unconditionally applied for reinstatement. As the strikers were unfair labor practice strikers, Respondent was obligated to reinstate them upon their unconditional re- quest, discharging, if necessary, any replacements in order to provide work for the strikers; Respondent's refusal and failure to reinstate the strikers constitutes discrimi- nation against them in violation of Section 8(a) (3) of the Act.13 F. Interference , restraint, and coercion , in violation of Section 8(a) (1) of the Act Respondent's conduct which has been found to violate Section 8(a)(5) and (3) of the Act, also constitutes a derivative violation of Section 8 (a)( 1 ) of the Act. In addition, I find that Respondent also interfered with, restrained , and coerced its employees in the exercise of their statutory rights and thereby independently violated Section 8(a)(1) of the Act by the conduct of Melvin Gentry and Pope Walsh in bypassing the duly certified bargaining representative and dealing directly with the employees, in holding out to the employees the prospect of a higher wage scale than had been offered in negotiations with their duly chosen bargaining representative if they would vote to drop said representative and form a company union, and in offer- ing to help them in organizing a company union and promising reimbursement by the Company for any attorney's fees incurred in connection therewith.14 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connec- tion with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent engaged in conduct which constituted a refusal to bargain collectively with the exclusive bargaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act; that the strike which com- menced on August 3, 1959, was caused and prolonged by Respondent's unfair labor practices and hence was an unfair labor practice strike; and that Respondent violated Section 8 (a) (3) and (1) of the Act by refusing to reinstate the unfair labor practice strikers, upon their unconditional application after the termination of the strike. I will therefore recommend that Respondent be ordered (1) to bargain collectively with the Union , upon request; (2) to offer to all the strikers named in the complaint immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for the strikers; and (3) to make whole all said strikers for any loss of earnings they may have suffered by reason of the discrimination against them , by payment to each of a sum of money equal to that which each normally would have earned as wages from the date of strikers' unconditional request reinstatement 15 to the date of their reinstatement or Respondent's offer of reinstatement, less the net earnings of each during such period, " See, e g., Spitzer Motor Sales, Inc., 102 NLRB 437, 452; Talladega Foundry & Ma- chine Company, 122 NLRB 125, 135 ; The Jackson Press, Inc, 96 NLRB 897, 903: 1fapp Brothers Company, Inc, 90 NLRB 1513, 1515; N L R B. v Remington Rand Inc, 94 F 2d 862, 872 (C.A. 2), cert. denied 304 U.S. 576, 589 ix See. e g, Lewin-Mathes Company, etc, 126 NLRB 936 14I have not included the conduct of Pugh Walsh during the strike solely because such conduct was not included in the complaint as an independent violation of Section 8(a) (1) of the Act is That date is December 11, 1959, as to Donny Fulenwider, and December 1, 1959, as to all other strikers SOUTHEASTERN NEWSPAPERS, IN C. 311 to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. In view of the nature and extent of the unfair labor practices herein found, I am convinced that the commission of similar and other unfair labor practices by Re- spondent reasonably may be anticipated. I will therefore recommend that Re- spondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 of the Act. Upon the basis of the foregoing 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 & Helpers of America, Local 878 is a labor organization within the meaning of Section 2(5) of the Act. 2. All truckdrivers and warehousemen, including order fillers, checkers, stockmen, inventory clerks, and packers, but excluding all office clerical employees, sales em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since January 30, 1959, the above-named Union has been, and now is, the exclusive representative of all the employees in the aforestated appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By engaging in conduct detailed in III D 2, supra, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. The strike, which commenced on August 3, 1959, was caused and prolonged by Respondent's unfair labor practices. 6. By refusing to reinstate the unfair labor practice strikers, upon their uncondi- tional request, Respondent has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the aforestated labor organization, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 7. By the above conduct and by engaging in the conduct detailed in III, F, supra, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged, and is engaging, in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Southeastern Newspapers , Inc. and International Mailers Union, Petitioner. Case No. 10-RC-4749. October 6, 1960 DECISION AND ORDER Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act 129 NLRB No. 33.