Englewood Lumber Co.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Englewood Lumber Company and United Brotherhood of Car- penters and Joiners of America, AFL-CIO. Case No. 20-CA- 1653. February 17, 1961 DECISION AND ORDER* On March 21, 1960, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices as alleged in the complaint, and recommended that these particu- lar allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. 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 [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following additions and modifications.' 1. The General Counsel excepts to the Trial Examiner's failure to find that the Respondent violated Section 8(a) (5) of the Act. The Trial Examiner found that the General Counsel did not establish that the Union was at any time material the bargaining representative of the Respondent's employees, and, accordingly, held that the Repondent did not unlawfully refuse to bargain with the Union. We agree. Like the Trial Examiner, we find that the union authorization cards, urged by the General Counsel as establishing such majority status, were unreliable for this purpose. As set forth in more detail in the Intermediate Report, the Union did not tell the employees that by signing the cards they were authorizing the Union to represent them; rather, the employees were told that the cards were necessary in order that the Board might conduct an election by secret ballot in which *On April 28, 1961, the Board granted the Respondent 's motion to provide that, if the strikers affected by the Board's Order fail to apply unconditionally for reinstatement on or before June 16, 1961 , then the Respondent will no longer be under a duty under the Order to reinstate them. 1 As no exceptions were taken to the Trial Examiner's finding that on June 3, 1959, Joe Bentley and Benjamin Scribner rejected valid offers of reinstatement and from that date were unfair labor practice strikers , we adopt that finding pro forma. 130 NLRB No. 48. ENGLEWOOD LUMBER COMPANY 395 every employee would have an opportunity to express his preference. Ten employees who had signed cards testified that when solicited they were told that the cards were for a Board election. Bentley, a leader in soliciting, testified that he told practically everyone he talked to that the cards would be sent to the Board so that a secret election could be held. In these circumstances, considering only what the employees were told, and not what may or may not have been their subjective reaction to what they were told, we do not think it can reasonably be said that the employees, by their act of signing authori- zations, thereby clearly manifested an intention to designate the Union as their bargaining representative 2 2. The General Counsel also excepts to the Trial Examiner's finding that Campbell was not discriminatorily discharged, that the striking employees were not unlawfully discharged on May 12, and that the strike was abandoned on August 18, 1959. We find merit in these exceptions. The Trial Examiner found that the Respondent's purpose in con- tracting its green chain was to rid itself of two green chain em- ployees-Scribner and Bentley-who were principals in the Union's campaign to organize the Respondent's employees. For the reasons given in the Intermediate Report, we agree with the Trial Examiner that the Respondent violated Section 8(a) (3) by terminating these two employees. However, the Trial Examiner recommended that the complaint be dismissed as to green chain employee Campbell, who was notified of his termination at the same time Scribner and Bentley were notified of theirs, on the ground that there was no evidence that Camp- bell was regarded by the Respondent as a union supporter. As the Respondent's objective in contracting the green chain was illegal, it is immaterial that one of the employees terminated may not have been a union supporter, or that the Respondent had no knowledge of his union adherence. Discrimination in regard to hire or tenure of em- ployment of a group of employees of known union employees but also including nonunion employees or union members not known by the employer to be union members, tends to discourage union mem- bership and activities no less than discrimination against known union members alone. All victims of discrimination are in such cases entitled to the same relief under the act as are known union members a Accordingly, we find, contrary to the Trial Examiner, that by dis- charging Campbell the Respondent discriminated against him in violation of Section 8 (a) (3). The Trial Examiner found that by Company Superintendent Luce's statement of May 12 to striking employees the Respondent violated B Joy Silk Mills, Inc. v. N.L R.B., 185 F. 2d 732 (C.A.D.C.) ; Dan River Mills, Incorpo- rated, Alabama Division, 121 NLRB 645, 648, enforcement denied on other grounds 274 F. 2d 381 ( C.A. 5), and similar cases relied upon by the General Counsel, are not apposite. 3 Arnoldware, Inc., 129 NLRB 228. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (1) of the Act, but not Section 8 (a) (3). We disagree. As stated in the Intermediate Report, on May 12 Luce told the striking employees that those who did not report for work would be discharged or considered as having quit. When these employees failed to so report, Luce came to the picket line and gave them their paychecks. We think that these facts establish that Luce was not merely employ- ing a "pressure tactic"; rather, they establish that these employees were in fact discharged. Accordingly, we fluid that by discharging these employees, because of their refusal to abandon the strike and return to work, the Respondent discriminated against them in viola- tion of Section 8 (a) (3) as well as 8 (a) (1). The Trial Examiner found that the strike was abandoned on August 18, 1959, the day the Union removed the picket line. We do not adopt this finding. In our view, the record fails to establish that the Union in fact abandoned the strike on August 18 or at anytime thereafter. Although the Union did remove the picket line on August 18, we note that the Union at that time informed the Re- spondent it was taking this action in order to promote what it termed a better atmosphere in which to conduct negotiations. In these cir- cumstances, we conclude that the removal of the picket line did not indicate an abandonment of the strike. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies, of the Act. Having found that the Respondent discriminatorily discharged Ben Campbell, we shall order the Respondent to offer him full and immediate reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and priv- ileges; and to make him whole for any loss of pay he may have suffered because of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages during the period from the date of his discharge to the date of offer of reinstatement, less his net earnings during said period, the backpay to be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. In accordance with customary Board practice, the period from the date of the Intermediate Report to the date of the Decision and Order herein will be excluded in computing the amount of backpay to which Campbell is entitled, because of the Trial Examiner's recommendation that the complaint be dismissed as to Campbell. With respect to Benjamin Scribner, Joe Bently, Junior Parson, and ClifFord Anderson, we shall order the Respondent to make these em- ENGLEWOOD LUMBER COMPANY 397 ployees whole to the extent recommended by the Trial Examiner. As in the case of Campbell,.their backpayshall be computed in accordance with F. W. Woolworth Company, supra. Contrary to the Trial Examiner, we have found that the striking employees were discharged on May 12. Ordinarily, a discriminatorily discharged employee is entitled to backpay from the date of his dis- charge. However, in cases where employees are discharged while on strike, it is the Board's established practice to award backpay from the date on which the employees make an unconditional application for reinstatement.' With the exception of Junior Parson, Joe Bentley, and Clifford Anderson, none of the striking employees, as of the close of the hearing, had applied for reinstatement, and, as found herein, the record does not establish that they had abandoned the strike. Accordingly, we shall order that the Respondent, upon application, offer these strikers (including Benjamin Scribner) reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if neces- sary, any employee hired after May 11, 1959, the day the strike began, to replace striking employees. We shall also order that the Respond- ent make whole these employees for any loss of pay they may have suffered, or may suffer, by reason of the Respondent's refusal, if any, to reinstate them upon their applications. In the event that the Re- spondent has not offered reinstatement to any one of these employees upon his application made between September 29, 1959, the date upon which the hearing herein ended, and March 21, 1960, the date of the Intermediate Report, the Respondent shall make him whole by the payment to him of a sum of money equal to that which he normally would have earned as wages during the periods: (1) from a date 5 days after the date upon which his application was made to March 21, 1960, the date of the Intermediate Report, and (2) from the date of our Decision and Order herein to the date of the Respondent's offer of reinstatement, less his net earnings during such periods. As to any employee applying for reinstatement after the date of our Decision and Order, the Respondent shall make him whale by the payment to him of a sum of money equal to that which he normally would have earned as wages during the period commencing 5 days after the date on which he applies for reinstatement to the date of the Respondent's offer of reinstatement, less his net earnings during such period. Back- pay shall be computed in accordance with F. W. Woolworth Company, supra. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 4 Dunkirk Broadcasting Corporation, et at, 120 NLRB 1588, 1593 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board hereby orders that the Respondent, Englewood Lumber Com- pany, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in or activity in behalf of Lumber and Sawmill Workers Union Local 2808, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization of its employees, by means of discharge, unlawful re- fusal to reinstate strikers, or any other discrimination in terms or conditions of employment. (b) Threatening to close its mill if a union succeeds in organizing its employees. (c) Granting or promising benefits in order to discourage union membership and activities. (d) 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 Lumber and Sawmill Work- ers Union Local 2808, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 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 bar- gaining 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) Offer to Joe Bentley, Clifford Anderson, Junior Parson, and Ben Campbell immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay in the manner set forth in the section of the Intermediate Report en- titled "The Remedy," and our Decision herein. (b) Make Benjamin Scribner whole for any loss of pay in the man- ner set forth in the section of the Intermediate Report entitled "The Remedy," and our Decision herein. (c) Upon application, offer to the Respondent's striking employees 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 in the manner set forth in this Decision. (d) 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, ENGLEWOOD LUMBER COMPANY 399 , and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. (e) Post at its mill in Red Crest, California, copies of the notice at- tached hereto marked "Appendix."'. Copies of this notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent, be posted by the Respond- ent immediately upon receipt: thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by other material. (f) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violations not found herein. MEMBER JENKINS, concurring in part and dissenting in part: Like my colleagues, I find that Respondent violated Section 8 (a) (1) and (3) of the Act. Contrary to them, I would find that Respondent also violated Section 8 (a) (5) of the Act. In May 1959, Respondent interrogated employees about the Union, threatened to close the mill if a union came in, announced a wage in- crease and insurance benefits to thwart the Union's organizational efforts, discharged union adherents, threatened strikers with discharge if they did not return to work, and then discharged them upon their failure to return and denied reinstatement to a striking employee. In August, Respondent again denied reinstatement to striking employees. While engaged in this campaign to frustrate the Union which my colleagues and I agree violated the Act, Respondent was requested by the Union to recognize it. At this time, the Union had received bar- gaining authorization cards from 27 of the 38 employees in the ap- propriate bargaining unit. It told Respondent that about 80 percent of the employees had signed designation cards and suggested a check of these cards against Respondent's payroll to demonstrate its ma- jority status. The Respondent rejected this proposal and refused to extend recognition to the Union without a Board-conducted election. On these facts, it is manifest that the Respondent, which denied recognition to the Union while engaged in a campaign to undermine the Union, cannot now be heard to say that it then entertained an hon- est doubt as to the majority status of the Union, which held authoriza- tion cards from 27 of 38 employees in an appropriate unit. How- ever, my colleagues are holding that Respondent did not unlawfully 6In 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." 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refuse to bargain with the Union on the ground that "we do not think it can reasonably be said that the employees by their act of signing authorizations, thereby clearly manifested an intention to designate the union as their bargaining representative." They so hold because, in their opinion, the cards were obtained by representations that they would be used solely for the purpose of obtaining a Board election. It is this finding which compels my dissent. Of a total of 38 employees, 27 employees in this case have signed cards delegating bargaining authority to a union. The Board and courts have repeatedly and consistently held that what is controlling in cases such as this is the employee's overt act in signing the author- ization card which designates the union as his bargaining representa- tive. Only recently, the Board made this pertinent finding : The Respondent contends that various named employees who signed authorization cards did not do so in order to designate the Union as bargaining representative, but rather that their intent in signing the cards was to secure an election in the plant. We find no merit in this contention. It is well settled "that an em- ployee's thoughts [or afterthoughts] as to why he signed a union card and what he thought that card meant, cannot negative the overt action of having signed a card designating the .union as bargaining agent." 6 My colleagues are unwilling to rely here upon the intention signified by the employees' action in signing the authorization cards, and they disclaim reliance upon the subjective state of mind of the employees who signed the cards. They prefer instead to rely upon the alleged representations of,card solicitors, whatever the understanding of the employees as to why they signed the cards. This disposition is not only without support in the cases but it lacks any rational basis. For it disregards entirely the single critical factor in these cases, namely, the intent of the employee in signing a designation card. As noted, until now, Board policy approved by the courts called for ascertaining this intent from the employee's act in signing a designation card, an overt act normally of unmistakable meaning. This was a sound policy e Dan River Mills. Incorporated, Alabama Division, 121 NLRB 645 , 648 In Stow Manufacturing Co., 103 NLRB 1280, 1285, respondent argued that authorization cards were improperly received in evidence to prove the union's majority status because the union accepted them from employees "for the purpose of securing union representation . by means of a National Labor Relations Board election which will be held In the near future," but this argument was rejected. And In Exact Level & Tool Mfg Co , 06 NLRB 1238, 1263-1264 , respondent challenged the union's majority status on the ground that employees were told at the time their signatures were solicited that their signing of the union card was merely evidence of their Interest in learning what the union was about and that "an election" would be held at the first meeting of the union , but this objection was also rejected for the reason that the employees who signed the cards were well aware that they were designating the union to represent them See also Joy Silk Mills Inc V N L R B, 185 F. 2d 732 (C.A.D C ), cert. denied 341 U S 914 , N L R B v Sunshine Mining Co., 110 F. 2d 780 ( CA. 9). ENGLEWOOD LUMBER COMPANY 401 and I must dissent from my colleagues' unexplained departure therefrom. But even were I to approach this issue from the view of it taken by my colleagues, I would still be compelled to disagree with their con- clusicti. As already indicated, my colleagues appear to be rejecting all the union authorization cards as evidence of majority status on the ground that the cards were obtained by representations that they would be used solely for the purpose of obtaining a Board election. However, even the Trial Examiner, with whom the majority opinion purports to be in agreement, has found that "Bentley, Scribner, Par- son, and many others were wholly aware that by signing the cards they were authorizing the Union to act for them and that this was their desire." I agree with this conclusion of the Trial Examiner. The statements by solicitors of authorization cards that the cards would be used to obtain a Board-conducted election for a union were in themselves no representation that the cards' only purpose was to obtain an election nor evidence even that an expectation by the em- ployees for an election was the only reason they signed the cards. The solicitors must have contemplated that an election might be necessary before recognition was obtained, as is indicated by their later action in both filing a representation petition and requesting recognition, and this in effect is what they represented to the employees solicited. Considering also the other attendant circumstances, such as that the cards were solicited by union adherents and that, on their face, they constitute a clearly understandable present delegation of bargaining authority, I am convinced that these "many others" signed the cards thereby intending to designate a bargaining representative, as found by the Trial Examiner. My disagreement with the Trial Examiner is as to the "some of the signers" regarding whom he reaches a contrary result, as, of course, do my colleagues. These signers appear to be the 10 employees who testified at the hearing concerning their signatures. Except possibly in a couple of instances,? it does not appear that these employees signed cards under circumstances any different than those under which the many other cards which the Trial Examiner has accepted were signed. If the representations made to those employees did not vitiate their cards, as the Trial Examiner and I have found, I must conclude that the validity of this batch of 10 cards has not been impaired either. Consequently, I would find that the Union enjoyed majority status when the Respondent, without a bona fide doubt of this fact, refused to recognize the Union as bargaining agent of its employees. It follows that Respondent violated Section 8(a) (5), as well as Sec- tion 8(a) (1) and (3), and I would so hold. 4 Assuming arguendo the existence of peculiar circumstances which distinguish these cards from the others, the Union's majority status plainly could not be affected thereby. 597254-61-vol. 130-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National'Labor Relations Act, we hereby notify our employees that : WE WILL NOT discharge or refuse to reemploy or otherwise dis- criminate against any of our employees because of membership in or activity in behalf of or lawful strike action in support of Lum- ber and Sawmill Workers Union Local 2808, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization. WE WILL offer to Joe Bentley, Clifford Anderson, Junior Par- son, and Ben Campbell 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 suffered as a result of the discrimina- tion against them. WE WILL make Benjamin Scribner whole for any loss of pay suffered as a result of the discrimination against him. WE WILL offer to our striking employees, upon their applica- tion, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole, in the manner provided in the Decision and Order, for any loss of pay suffered by them as a result of our failure to reinstate them upon their applications. WE WILL NOT by means of discriminatory discharges or refusals to reemploy, by promising or granting benefits or by threatening to close the mill, or in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in 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 authorized in Section 8(a) (3) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. All of our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization , except ENGLEWOOD LUMBER COMPANY 403 to the extent this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. ENGLEWOOD LUMBER 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 duly filed by Lumber and Sawmill Workers Union Local 2808, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board issued his amended complaint against Englewood Lumber Company, herein called the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1), (3), and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. In respect to unfair labor practices the amended complaint alleges in substance that in early May 1959 the Respondent interrogated employees concerning their membership in the Union; threatened that the mill would close if the employees joined the Union; announced a wage increase to discourage activity in behalf of the Union; unlawfully laid off three employees because of their membership in and activity in behalf of the Union; discharged strikers because of their participation in a strike; and refused unlawfully to bargain with the majority representative of Re- spondent's employees in an appropriate unit. It is alleged that a resulting strike was caused and prolonged by Respondent's unfair labor practices. Respondent's answer denies the commission of unfair labor practices and inter- poses several affirmative defenses which will be considered in the body of this report. Pursuant to notice, a hearing on the complaint was held before the duly designated Trial Examiner in Eureka, California, from September 16 through 25, 1959, and in San Francisco, California, on September 29, 1959. All parties were represented at the hearing and were afforded full opportunity to examine and cross-examine wit- nesses and to introduce evidence pertinent to the issues. A brief has been received from counsel for the Respondent. 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 RESPONDENT The Respondent is a California corporation engaged in the manufacture of lumber at Red Crest, California. During the year ending July 31, 1958, the Respondent shipped lumber valued at more than $162,000 to Fred C. Holmes Lumber Company at Fort Bragg, California. During the same period Fred C. Holmes Lumber Com- pany shipped lumber valued at more than $50,000 from Fort Bragg, California, to points outside that State. I find that Respondent's operations are in and affect commerce. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES William B. Herndon, Respondent's president, operates the sawmill where it is alleged that the unfair labor practices occurred; Donald N. Martin, Respondent's secretary, maintains an office at the sawmill site but is primarily concerned with logging operations; Russell Luce, since some date in February 1959, has been the superintendent of the mill; and T. G. Teasley is the mill foreman. Logs passing through the head saw are carried as lumber down a chain carrier to a point where a crew pulls the lumber off for stacking. This operation is referred to as the green chain. In the spring of 1959, five men were employed on the green 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chain at an hourly rate. An arrangement frequently known in the industry as "contracting" substitutes a piece-rate method of compensation for the green chain workers. Under the contract operation men pull and stack lumber. Earnings under such an arrangement are thus dependent upon the amount of lumber coming over the carrier and handled by the crew. President Herndon testified that in the fall of 1958, he gave consideration to instituting the piece-rate system on the green chain but deferred any final action in the matter. Still, according to Herndon, in February 1959 about the time he hired Luce as superintendent, he told Luce to investigate the advantages of a piece-rate arrangement for the green chain. Luce testified that in April of that year he spoke to Ben Scribner, one of the men employed on the green chain, and suggested that Scribner take over the job on a piece-rate basis. Scribner asked, according to Luce, how much per thousand the Respondent was willing to pay; Luce did not answer the question but told Scribner to take the matter up with the other men on the job. Luce, he testified, heard nothing further from Scribner in the matter. Thereafter, according to Luce, he asked another member of the crew, Elmer Davis, if he was interested in working at a piece rate. Davis answered that he was and Luce told him that a price would be determined later. According to the composite of testimony by Herndon, Martin, and Luce, another man, Oscar Nelson was hired about April 28 with the understanding that Nelson would in a short time be given opportunity to work the green chain at a piece rate. Again the testimony does not suggest that a price was mentioned. About April 30, a number of employees gathered in the lunchroom at the mill and spoke to Teasley about the possibility of getting a wage increase. Teasley jokingly answered that if he thought such a possibility existed he would join the effort in his ,own behalf. Someone of the employees then said that he might get up a petition for a wage increase to be circulated among to employees. Joe Bentley and Ben Scribner, both working on the green chain, and Junior Parson, the head sawyer, along with another mill employee, Lewis Mayfield, had discussed the possibility of joining a union in order to get a wage increase and possibly in other ways to improve their working conditions. The four last named on that date signed cards in the usual form designating the Union as their bargaining representative. On the weekend of May 2 they engaged in a campaign to obtain the support of other employees and by Sunday night, May 3, had obtained 24 signatures. About May 1, according to Donald Martin, he heard that another mill in the area had given a substantial raise to its employees and on May 4 discussed this develop- ment with William Herndon. According to Herndon, Martin told him further that two employees at the mill had asked for a wage increase saying that other mills in the area had given raises. Superintendent Luce, who was present, said that a number of employees had commented upon the wage increase given at another mill. Fore- man Teasley reported that a few days earlier a number of employees had asked him about the possibility of getting more money and that one of them had mentioned a proposal to circulate a petition in the hope of bringing about an upward change in wages. Herndon testified that upon the basis of this fund of information he tele- phoned Charles Rubyn, the manager of Northern California Lumber Operators As- sociation, herein called NCLOA, and asked Rubyn to come to the mill for consulta- tion. Rubyn advised Herndon to offer an immediate increase to his employees and to assume the cost of a health and accident insurance policy that theretofore had been paid for, in part at least, by payroll deductions. Herndon testified that insofar as the insurance matter was concerned he had already arranged with his carrier to re- move the burden of paying premiums from his employees effective July 1. Rubyn testified that Herndon exhibited a reluctance to undertaking this expense. After dis- cussion, Rubyn, he testified, drafted a notice to employees telling them that due to the many inquiries from them, wages would be increased 5 cents an hour on June 1; that as of July 1 the employer would pay the entire cost of health and acci- dent insurance; that, following existing policy, promotions would be made upon the basis of ability and length of service; and that the establishment of paid holidays and paid vacations was in contemplation. This notice was posted on the mill bulletin board late in the evening of May 4 or early the next day and a copy was wrapped around the timecard of each employee at some time on May 5. Although, according to the testimony of Herndon, Rubyn, and Martin, all decisions affecting a wage increase were reached on May 4 and effective steps taken on that date to bring to the attention of employees what benefits lay in the future for them, on May 5 and on the succeeding days of that week Teasley and Luce questioned a number of employees concerning a petition. Teasley and Luce insisted, in their testimony, that they were concerned only with the possible existence of a petition being circulated among the employees looking toward an increase in wages. The employees who testified to this point as will later be set forth said that the question- ENGLEWOOD LUMBER COMPANY 405 ing concerned a petition for the Union. Also on May 4, according to Herndon, Luce told him that he had the men selected to contract the green chain. Oscar Nelson, who had been hired on April 28, was one. Nelson's brother who would not be able to report for work for a week or two was another, and Elmer Davis, already a green chain employee, would be the third. It was the plan to operate the green chain with three rather than five employees. This led Herndon, he testified, to tell Luce to draft a notice informing the remaining four men on the green chain that they would be laid off at the end of the workweek, May 8. Joe Bentley, who became employed by the Respondent on the green chain March 13, testified that late in the afternoon of May 4 Luce asked him if four men could handle the job; Bentley answered that they could if they were paid a suffi- ciently high rate. The next morning, still according to Bentley, Luce asked him "what is all this union about around here?"; Bentley replied that he knew nothing about it. Luce persisted and asked if Bentley had not signed a petition; Bentley said that he knew nothing of such a document and asked Luce who was reportedly circulating it. Luce answered that Bentley, Scribner, and Parson had been identified to him as those responsible. Bentley then said that all of the employees had signed a union petition and that they hoped to get a raise of 131/2 cents an hour. Luce argued that a union would not do the men any good and that it would absorb all of the increased earnings in initiation fees and dues leaving the members the empty honor of wearing a button. Benjamin Scribner was hired in October 1958 and for the entire period of his employment worked on the green chain. On the morning of May 5, according to Scribner, Luce commented that he had heard that a union was coming into the mill and accused Scribner of being a leader in this development. A short time later Teasley made substantially the same comment to Scribner saying that Scribner was "packing" a union petition around. Teasley said that a mechanic had given notice of an intention to quit because he did not want to be involved in any union matters. Still later in the day, Teasley returned to say that he now knew that Scribner, Bentley, and Parson were promoting the Union because all three had been seen riding around in Parson's car. Possibly relaying information given him by Luce, Teasley said that a 131/2-cent wage increase would not be beneficial as union costs would absorb it and that the payment of wages demanded by the Union would probably result in a curtailment of overtime work. Clifford Anderson testified that on May 4 Secretary Martin asked Virgin Veyse in Anderson's presence if Veyse had been approached by anyone in connection with joining the Union and then asked Anderson the same question. A short discus- sion among the three then developed during which Martin said, according to An- derson, that he had hoped to see the employees form a union of their own and asked what they hoped to gain by bringing in a union. Anderson replied that paid vacations and holidays were among the benefits to be sought. Veyse, not an em- ployee of the Respondent, corroborated Anderson's testimony in all important aspects but placed the incident on May 8. Martin conceded that he had spoken to the two men and testified that he thought that it happened on May 6. According to Martin, he inquired of Veyse if he knew anything about a petition supposedly being circulated in the mill. Martin said to the two of them that something was going on and that some of the men were "acting distant." Martin observed that it might be a good idea to have a suggestion box or perhaps a committee of three or four men to take care of grievances. According to Martin, it was Anderson who suggested that a union limited to Respondent's employees would be a good idea and Anderson who said that unions on the west coast were primarily interested in the collection of dues. According to Scribner, the questioning by Teasley which began on May 5 was repeated on the next day. On the latter occasion according to Scribner, Teasley asked Scribner for a card saying that he wanted to sign it. Teasley remarked that he knew all about the activity of Scribner, Parson, and Bentley in getting cards signed and asked what the demands of the men would be. Scribner answered that they were seeking job security, vacations, holidays, and seniority. Teasley asked if Richard Kernohan was taking any part in the campaign and Scribner answered that he was not. Later in the day Teasley came to Scribner saying that Parson had "broken down" and made a full disclosure of what Parson and the others had been doing. On this occasion Scribner told Teasley that a threat to close the mill in the event of union organization had been attributed to Teasley by another employee. Teasley then denied that he had made such a remark. Both Bentley and Scribner testified that theretofore cordial relations with Teasley vanished during the week of May 4. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Junior Parson, the head sawyer, testif d that on May 5 Luce asked him what he knew about the "union talk" going on in the mill . Parson denied knowledge of it. Luce commented, according to Parson, that he hoped the Union would not succeed in organizing the employees and said that all Parson would gain would be an opportunity to pay dues and to wear a button . At 10 that morning, Parson asked Teasley to relieve him for his customary morning break. According to Parson, Teasley said, "We don't give breaks to union men" but did nonetheless take over the saw. Teasley denied making any remark of this character and testified that it was the millwright who took over Parson's job on this occasion. On May 8, still according to Parson , Teasley asked him for a union designation card for signature. Parson jokingly produced a motel registration card and handed it to Teasley. Parson testified that later in the day Teasley said that Scribner had told him of Parson's participation in the union campaign. William B. Haire testified that on May 5 Teasley asked him if he had been re- quested to sign a union petition and remarked that a couple of men were trying to get a union started. On the following day, Luce asked Haire the same question Darrell White testified that on May 4 or 5 Teasley asked if he had signed up foi the union yet and went on to say that if the men organized a union the Respondent would close the mill. Lewis Mayfield testified that on May 6 or 7, Teasley asked him on one occasion if he had signed "a slip or a list," and on another, if he had signed "a list about a union." On the second occasion Teasley said that if the Union was successful the Respondent would close the mill. Martin also testified that Luce on one of these days asked if Martin had signed a slip or a list. Scott Hamilton testified that on May 6 Teasley said, in the presence of other employees in the cook shack, that the Respondent would close the mill if the men joined a union. Teasley denied that he, on any occasion , threatened that the mill would be closed if the men joined a union. I am convinced that Hamilton is mistaken in his testi- mony that such a statement was made by Teasley in the cook shack in the presence of other employees . Other aspects of Hamilton 's testimony lead me to conclude that the cook shack conversation took place on an earlier date before any real move had been made to interest the employees in a union . I do not find, however, that the testimony of Hamilton on this point is in any sense fabricated. In the late afternoon of May 7 the following notice was posted in the mill: To the Employees of Englewood Lumber Company: MAY 7, 1959. For several months we have been considering the possibility of contracting our green chain . We have now acquired the men capable of contracting the chain and will do so starting on Monday , May 11, 1959. The men affected by this change will be laid off Friday 5:30 p.m. May 8, 1959. As proper openings occur the men that are being laid off will be rehired if they so desire. The following named men will be affected by this change. Ben Campbell Ben Scribner Joe Bentley Richard Kernohan (S) Russell Luce RUSSELL LUCE, Mill Supt. The following morning Ben Campbell asked Teasley why he was not given an opportunity to work the green chain under a contract arrangement. Teasley, accord- ing to Campbell, answered merely that he had offered it to all of the other men. Campbell then asked if he could quit at noon so that he might attempt to find another job which he believed to be available. Permission was granted an4 Campbell was paid off at noon. Late in the afternoon Kernohan was offered and accepted another job inside the mill. Scribner and Bentley finished the day and left the mill. That evening Bentley and Scribner spoke to Leonard Cahill, a business representative of the Union , to com- plain of their discharges . The next day learning that Rubyn was probably a repre- sentative of the Respondent, Cahill phoned him and warned that if Scribner and Bentley were not rehired the mill would be picketed. Cahill added, he testified, that the picket line would also be an attempt to force recognition. Raymond K. Nelson, a representative of the parent organization of which the Union is an affiliate, testified that he spoke with Rubyn on Saturday, May 9, saying ENGLEWOOD LUMBER COMPANY 407 that the Union represented a majority of Respondent 's employees and complaining of the discharges . On Sunday, May 10, Scnbner, Bentley, and some other employees obtained some picket signs . The next morning a picket line was formed before the mill entrance. Claude Heinig, secretary of the Redwood District Council, which assists the Union in bargaining, accompanied by Nelson, went to the mill and met with Herndon and Rubyn. Heinig testified that he told Rubyn that he represented Respondent's em- ployees and would like to get the dispute settled and the men back to work. The discussion at first centered about the discharges. Herndon said that Scribner and Bentley had been offered an opportunity to work the green chain on a piece-rate basis and had refused it. Teasley and Luce both supported Herndon on this point. Bentley and Scribner were called into the meeting and Scribner speaking for the two of them denied that such an offer was made. In his testimony , Scribner said that he had inquired of Teasley and Luce on more than one occasion to learn if Re- spondent was interested in making a contract arrangement for the green chain and had consistently been told that such a change was not planned. On some date in April, according to Scribner's undenied and credited testimony, he suggested to Luce that the green chain work seemed to be too heavy for Campbell and that an easier assignment should be found for him. On this occasion or a later one Luce said that if four men would handle the green chain he would give them a raise of 25 cents an hour. Scribner spoke to Bentley, Davis, and Kernohan and the four of the decided, he testified, that the offer was insufficient. Late in the month, still according to Scribner, Luce told him that Oscar Nelson would replace Campbell. Of the 38 employees in the mill, 16 crossed the picket line on May 11 and 12. About the same number or perhaps a few less appeared on one or both of those days on the picket line. On the morning of May 12, shortly before 8 a.m., Luce told the pickets that those who did not report for work when the whistle blew would be dis- charged, or as Luce recalled it, would be considered as having quit. Sometime during the morning of May 12, those on the picket line or standing at the entrance were given checks for all earnings to date. The complaint alleges that the strikers were thus discharged. Representatives of the Union met with representatives of the Respondent at the mill office on May 11, 12, and 14. The union spokesmen represented to the Respond- ent that about 80 percent of the employees had signed designation cards and suggested that these cards be checked against Respondent's payroll to demonstrate the majority status of the Union . The Respondent rejected this proposal and Herndon asserted his disbelief that the employees would select the Union in a secret election. At all times Herndon adhered to his position that Scribner and Bentley were laid off solely by reason of the change in method of compensation for green chain employees coupled with their disinterest in working under the new arrangement . On May 14, Herndon said that he would agree to an immediate election to be conducted by agents of the National Labor Relations Board and put all of the strikers other than Scribner and Bentley back to work. The union representatives indicated that this arrangement would be satisfactory to them but that they first must consult with the men on the picket line. After a consultation , Heinig told Herndon that the men would not come back to work and abandon the strike unless Respondent signed a bargaining contract with the Union in the form widely used in the industry or agreed to negotiate toward that result. The strike and picketing continued with some of the strikers abandoning the strike and returning to work while the jobs of others were filled by replacements . In late May, Junior Parson asked Herndon if he might return to work; Herndon answered that he could not rehire him because of the pendency of unfair labor practices. On June 3, Luce told Scribner that a job was available for him if he would come to work. Scribner asked if Bentley too was to be rehired and was told that only one vacancy existed. Scribner said that he would not go through the picket line. On the same date the same offer was made to Bentley who gave the same reply. On June 5, Nelson offered to return all the strikers to work if the Respondent would sign a contract. The offer was refused. Again in late July in behalf of the Union, Nelson offered to remove the picket line if all strikers were unconditionally returned to work and if the Respondent would sign the bargaining agreement then existing between other members of NCLOA and the Union. By letter in early August, Herndon refused to do so saying again that he did not believe the Union to be the majority representative of the employees. On August 18, the Union withdrew the picket line and abandoned the strike. By a letter to the Respondent dated August 19, Bentley and Clifford Anderson unconditionally requested reinstatement to their jobs. They received no reply. 408, DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before the strike began and at the time when recognition was first demanded, the Union had received valid bargaining authorization cards from 27 of the 38 employees and thus could demonstrate in that fashion that a majority of the employees desired it to represent them.' The strike, beginning on May 11, was not at its inception, I am convinced, designed to bring about recognition although there is evidence in the testimony of Cahill and Nelson that an assertion of majority status had been made to Rubyn before the strike started. I think it clear enough that the Respondent, before the meetings on May 11, had not been given any sort of opportunity to evalu- ate the substantiality of the Union's claim. The strike was triggered by the dis- charges of Bentley and Scribner, two of those most active in promoting the union campaign. Of course during the week of May 11, the Respondent was formally advised that the Union claimed the right to represent the employees and that it was willing to substantiate its claim by means of a card check. I think it to be settled law that an employer faced with such a demand is not required to accede to it if he entertains a bona fide doubt that the employees have freely chosen their repre- sentative, Whether such a doubt existed in the mind of Herndon during that week, is a question which under the somewhat peculiar circumstances of this case, need not be reached. Basic to a finding that bargaining authorizations are what they purport to be is that the signers were wittingly and designedly selecting a bargaining representative. I find substantial evidence in this record to indicate that the cards were not reliable manifestations of employee sentiment. I do not doubt that Bentley, Scribner, Parson, and many others were wholly aware that by signing the cards they were authorizing the Union to act for them and that this was their desire. But as to some of the signers I think this conclusion is not justified. The campaign itself was not pursued by telling prospective signers that they were choosing a bargaining representative but rather that the cards were necessary in order that the Board might conduct an election by secret ballot in which every employee would have opportunity to express his preference. The speculation is appealing that an individual who was content without representation would not sign a card which would give others an opportunity by means of a ballot or otherwise to impose a representative upon him. Thus it may be argued that even though the cards were signed in many instances in the belief that they would be used only to facilitate an election, nonetheless the signers must have been of a mind to designate a union. Otherwise, the argument would run, a disinterested person or one hostile to such representation would not sign at all. But the validity of the conclusion stemming from this premise is, I think, weakened by the testimony of Bentley in connection with the cards of James Sowell and Bobby Davidson. Bentley testified that when he approached the two of them, Davidson said that he was opposed to unions. Both of them signed the cards but only after it was explained that an election would be held in which a vote could be cast against the Union as well as for it. I think that it cannot fairly be said that the cards of Davidson and of Sowell were calculable evidence that they desired the Union as a representative. Considering the character of the campaign, it is at least possible that other signers were brought to the point of signature by the belief that an election would result prior to which opportunity for mature reflection upon the question of choice would exist. About 10 employees testified at the hearing that such was their intent. I am mindful that such testimony given after an unsuccessful strike and against a background of unfair labor practices should be viewed with a measure of skepticism. The involvement with the Union did not bring a happy result and it is understandable that some of the signers would feel a compulsion to explain their act as deriving from motives which their employer might not find objectionable. But we come back to the fact that this testimony is consistent with that of those who secured the signatures. A consideration of the number who supported the strike and those who did not is not helpful on this point. The strike did not result from a refusal of recognition; 10 of the signers reported for work through the picket line on May 11; and there is no reliable indication that those who picketed or merely remained away from work did so because they felt that the Respondent should bargain with the Union. A consideration of all these circumstances leads me to the conclusion that the General Counsel has not estab- lished by a preponderance of the evidence that the Union was at any time material the bargaining representative of Respondent's employees. Turning now to other aspects of the case, there is nothing in the record to suggest that Scribner and Bentley were anything but satisfactory workers on the green chain. Both had been employed by the Respondent for a longer time than Kernohan and it is contended that even if the discharges were economically motivated the Respond- I The Union filed a petition for a Board-conducted election on May 6. Herndon became aware of this in the afternoon of May 8. ENGLEWOOD LUMBER COMPANY 409 ent would naturally have kept either Scribner or Bentley in the job provided for Kernohan. Luce testified that he understood it to be true that Scribner did not want to work inside the null and that Bentley was probably too slow for the job available. The General Counsel asserts that Scribner and Bentley were discriminatorily dis- charged and points to the testimony of Scribner wherein Teasley was told that Kernohan was not a union supporter. Decision need not turn on this point but the likelihood that the General Counsel is correct in his theory is, I think, borne out by other circumstances. I credit the testimony of Scribner and Bentley that they were not offered opportunity to contract the green chain and that on every occasion when inquiry was directed to Luce or Teasley concerning the possibility of such a change they were told nothing of the sort would be done. This is not to say that the Respondent may not have at some time during the several months preceding the discharges given some thought to using the contract arrangement; I am not inclined to disbelieve the testimony of Herndon in this particular. It is my analysis of the evidence that based upon the recommendation of Scribner, Luce intended, when opportunity arose, to replace Campbell and that when Oscar Nelson was hired about April 28, he told Scribner that Nelson would take Campbell's job. I do not credit the testimony of Herndon, Martin, and Luce that Oscar Nelson was hired with the understanding that he would be given the green chain contract. Elmer Davis, one of the green chain crew who retained his job when the change was made effective, testified that about April 23 or 24, Luce asked him if he was interested in con- tracting the green chain and Davis answered that he was. Davis was not laid off and did not work during the first week of the strike. On his return to the mill, May 18, he was given other employment and did not work on the green chain on any regular basis until about September. In a statement given to an agent of the General Counsel at some time before the hearing, Davis said that he had never been offered employment on the green chain on a contract basis. He explained in his testimony that the statement was taken from him in circumstances which impelled him not to speak truthfully or accurately. As Davis was not discharged or laid off on May 8 when the piece-rate plan was announced, it seems likely that he was on some day prior to that date told that he would be continued on his job. I am sure, however, that he is mistaken in his recollection that any such inquiry was made of him as early as April 23. All of the testimony by witnesses for the Respondent is to the effect that no firm plan to make the change took shape prior to the hiring of Oscar Nelson on April 28. The evidence convinces me that on May 4 Herndon and Martin became aware that a union was attempting to organize the employees. I credit the testimony of wit- nesses for the General Counsel that on May 5 or thereafter they were questioned by Luce and Teasley concerning the existence of some sort of petition looking toward the formation of a union. To the extent that Teasley and Luce denied such conduct, their testimony is not credited. In the belief that union organization was imminent, Rubyn was hurriedly called to the scene and the announcement of a wage increase and employer-paid health and accident insurance was made. I think that Herndon testified truthfully that he had made arrangements prior to May I to assume the cost of the insurance policy, thus I do not find that this benefit was conferred in order to dissuade the employees from joining the Union. I do find that the announce- ment of the change along with that of a wage increase had such a purpose. Consid- eration of the notice which appeared in the mill on May 4 or 5 substantiates this conclusion. The Respondent used language in respect to possible further benefits much as if to say, "We know of your dissatisfaction but we are trying to take steps to alleviate it Give us a chance to show you what we can do. Here is a down- payment on benefits which may be expanded in the future." Surely employees had asked for wage increases in the past without exciting such a response, but now a union was involved. I find that Scribner and Parson testified truthfully that Teasley identified them and Bentley as leaders in the union campaign. Both Bentley and Scribner were satisfactory employees and except for their identification with the Union the Respondent would have offered them an opportunity to contract the green chain had the change been made for economic reasons. Believing correctly that Parson, Scribner, and Bentley were the focal point of union organization and casting about for a plan to combat this development, the decision to contract the green chain eventuated. I find that no immediate purpose to contract this work existed in the mind of Herndon until he learned of the union activity among the employees The change to a piece-rate basis seemed to provide opportunity to get rid of Scribner and Bentley and thus perhaps to bring union organization to a halt without adver- tising the commision of an unfair labor practice. Parson, as head sawyer, was too valuable a man to be sacrificed to this purpose. Campbell probably was facing 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replacement by Oscar Nelson in any event and Kemohan was not believed to be an active union supporter. There is no reason to believe, and I do not, that any among Respondent's supervisors or officials regarded Campbell as a union supporter- Although it is clear enough that he was discharged, I think that the evidence does not support the allegation in the complaint that his discharge was discriminatory. I find that Bentley and Scribner were discharged on May 8, 1959, in order to dis- courage membership in and activity in behalf of the Union and that by these dis- charges the Respondent violated Section 8(a)(3) of the Act. Whether Luce told the strikers on May 12 that they were discharged or as be put it would be considered as having quit unless they returned to work is a matter of no consequence. They were engaged in a lawful strike and their employment could not be lawfully terminated nor could the Respondent treat them as having quit because of their strike action. The strike from its inception, I find, was caused by the Respondent's unfair labor practices attending the discharges of Bentley and Scribner. Thus when Parson offered in late May unconditionally to return to work the Respondent was under a duty to permit him to do so, discharging, if necessary, any replacement that may have been hired. On June 3, when first Scribner and then Bentley were offered the only job then vacant, their refusal did not cure the original unfair labor practice committed when they were discharged. Each had a right to do as he chose to do, that is, to remain in the position of a striker until both were unconditionally reinstated. I am not persuaded that Luce actually intended on May 12 to bring to an end the employment of those strikers who did not return to work. Just 2 days later the Respondent offered to reinstate all strikers and to proceed to a bargaining election. I think that Luce's statement on May 12 must be regarded as a pressure tactic designed to persuade the men to come back to work and that there was no intention at that time to end their employment. When on June 5 the Union offered to end the strike if the Respondent would sign a contract, the offer was refused. Both Bentley and Scribner picketed after that date and it seems unlikely that they did so solely to vindicate the asserted representa- tive status of the Union. They had been discriminatorily discharged and they were still protesting the treatment they had received. The strike still was designed to remedy an unfair labor practice. On August 18 the strike was formally abandoned without request that strikers be returned to work. However, on the next day Bentley and Anderson asked to be reinstated. This was so closely allied in point of time with the ending of the strike as to require the Respondent to accept the offer. I find that the Respondent discriminated in regard to the hire and tenure of em- ployment of Junior Parson in late May 1959. when he asked to be reemployed be- cause of his engagement in a protected strike and that the Respondent thereby dis- criminated unlawfully against Parson in violation of Section 8(a)(3) of the Act. I find valid offers of reinstatement to Bentley and Scribner on June 3, 1959. which they refused because they desired to continue the strike at least until both were reinstated. The remedy section of this report will recommend that backpay for Scribner and Bentley be tolled on June 3. Upon receipt of the unconditional application for reinstatement by Bentley and Anderson shortly after August 19, the Respondent was under a duty to provide employment for them, discharging, if necessary, anyone hired as a replacement. By its failure to take this action the Respondent discriminated in regard to the hire and tenure of employment of Bentley and Anderson in violation of Section 8(a) (3) of the Act. I credit the testimony of Lewis Mayfield and Darrell White that Teasley threatened that the mill would close in the event the employees joined the Union. Although I have little doubt that such a dismaying prediction was made also to Scott Hamilton, as he testified, I rest no finding on his testimony to that effect because of his prob- able confusion as to when it was said and where. Teasley's denials are not credited. I also credit the testimony of witnesses for the General Counsel as to the ques- tioning during the week of May 4 by Teasley and Luce. I do not credit the explana- tions of Luce and Teasley that their concern was only with the possible existence of a petition for a wage increase. Questioning employees whether they know any- thing about union activity is not, standing alone, always a manifestation of union hostility or violative of the Act. But here the purpose was plain. The Respondent knowing that the union movement was afoot was trying to learn its extent and the identity of those responsible for its genesis in order to fashion effective, and as it developed illegal, methods to check its spread. ENGLEWOOD LUMBER COMPANY 411 By announcing a wage increase and insurance benefits, by the questioning of em- ployees about the Union, by telling strikers on May 12 that they were discharged or that they would be considered as having quit, by refusing the unconditional offers of Parson, Bentley, and Anderson to return to work , and by the discharges of Bentley and Scribner, the Respondent has interfered with, restrained , and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection 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 the Respondent has committed certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Benjamin Scribner and Joe Bentley on May 8, 1959; that the Respondent rejected the unconditional offer of Junior Parson, an unfair labor practice striker, to return to work in late May 1959; and that the unconditional offers of Joe Bentley and Clifford Anderson, both unfair labor practice strikers, to return to work made on August 19, 1959, it will be recommended that the Respondent make each of them whole for any loss of earnings occasioned by the discharges and the failures to reinstate . In the case of Joe Bentley and Benjamin Scribner, the period for which reimbursement must be made is May 8 to June 3, 1959. On the latter date, each rejected unconditional offers of reemployment and from that date on became unfair labor practice strikers. Joe Bentley and Clifford Anderson are to be made whole for any loss suffered since August 19, 1959, because of Respondent's failure to accept their unconditional offer to return to work. The period for backpay in the case of Junior Parson is to begin on that date in late May when he unconditionally offered to return to work and to run until he is offered unconditional reinstatement to his former or substantially equivalent position. Neither Scribner nor any of the other strikers have uncon- ditionally offered to return to work. Because the strike was an unfair labor practice strike, the Respondent was under a duty imposed by the Act to reinstate any striker upon unconditional application. The strike was abandoned on August 18, 1959, and at the close of the hearing more than a month later only Junior Parson , Joe Bentley, and Clifford Anderson had requested reemployment . I believe that sufficient time elapsed between the end of the strike and the close of the hearing for any striker to make his offer to return to work had he desired to do so. The obligation of the Respondent to accept such offers does not have perpetual life and no recommenda- tion will be made in connection with any application by a striker to return to work following September 29, 1959. Having found that the Respondent has interfered with , restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, by interroga- tions, by threats to close the mill, and by announcement of benefits , it will be recom- mended that the Respondent cease and desist from such conduct. 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. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Benjamin Scribner, Joe Bentley, Junior Parson, and Clifford Anderson, the Respondent has discouraged membership in and activity in behalf of the Union and has thereby en- gaged in unfair labor practices in violation of Section 8(a) (3) of the Act. 4. By such discrimination, by announcing benefits, by threatening to close the mill, and by telling the strikers that they would lose employment if they failed to abandon the strike, the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and has thereby engaged in unfair labor practices in violation of Section 8 (a)( I) of the Act. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not unlawfully refused to bargain in violation of Section 8(a) (5) of the Act. [Recommendations omitted from publication.] Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO and its Locals No. 5 and 90 and American Federation of Technical Engineers, AFL-CIO and its Local No. 151 and Bethlehem Steel Company. Cases Nos. 1-CB-635 and 1-CB-636. February 17, 1961 DECISION AND ORDER On August 23, 1960, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled consolidated proceeding, finding that the Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Industrial Un- ion of Marine and Shipbuilding Workers of America, AFL-CIO, filed exceptions to the Intermediate Report and a supporting brief. The other Respondents filed neither exceptions nor briefs herein. 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 [Chairman Leedom and Members Fanning and Kimball]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO and its Locals No. 5 and 90, and American Federation of Technical Engi- neers, AFL-CIO and its Local No. 151, their officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from restraining and coercing the employees of Bethlehem Steel Company at its Quincy, Massachusetts, yard, in 130 NLRB No. 39.