Shook & Fletcher Insulation Co.

SHOOK & FLETCHER INSULATION COMPANY 519 Billy Adkins Margy Smith Jimmy Call Shirlee Call Emogene Potter Margaret Laquinto Luis Luna Corrinne Breeding Frankie Harper Lizzie White Billy Harper Anne Jarrait Clifford White Alphonse Vandevelde Hugo Wienke Grace Ferranti Emmet Adkins Herbert Hickey Irene Goodman Linda Scott Delsie Henderson Bernice Wienke Mary Mabee Joseph Yamin Dorothy Waldrip William Bowman Jack Call Oran Darnell APPENDIX C STRIKERS DISCHARGED OCTOBER 16, 1959 Chester Kierpaul James Springer Benedict Siragusa Lessie Newsome Robert Allen Earl Cole William Cardella Joseph Edwards Peter Orlando Bernice Lipinski Charles Sadler Donna Demeyer Adolph Gonzales Buddy Darnell Franklin England John Wiedman Alger Stacey Billy Adkins (also William Lafave Gene Massey Lee Gabriel Bob Crowder Melvin Coates STRIKER DISCHARGED OCTOBER 17, 1959 James Carroll APPENDIX D STRIKERS DISCHARGED OCTOBER 19, 1959 on Appendix B) Lodovico Ianetta Rosario Stica Lawrence Vitale Antonio Vitale Dudley Young Shook & Fletcher Insulation Company and Billy A. Griffin, Robert A. Griffin, B. F. Scovell, George R. Hester, L. C. Kittrell, John D. Wilson, and C. P. Bosarge, Jr. Badham Insulation Company, Inc. and L. C. Kittrell, George R. Hester, B. F. Scovell, Robert A. Griffin, R. E. Griffin, Sr., Billy A. Griffin, C. P. Bosarge, Jr., and J. M. Schmidt . Cases Nos. 15-CA-1349, 15-CA-1350, 15-CA-1352, 15-CA-1353, 15-CA-1354, 15-CA-1355,15-CA-1449,15-CA-1429,15-CA-14,30,15-CA-1431, 15-CA-1432, 15-CA-1433, 15-CA-1434, 15-CA-1450, and 15-CA- 1467. February 20, 1961 DECISION AND ORDER On March 31, 1960, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Badham Insulation Company, Inc., had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents Shook & Fletcher Insulation Com- 130 NLRB No. 64. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany and Badham Insulation Company, Inc., had not engaged in cer- tain other unfair labor practices alleged in the complaint in violation of Section 8(a) (3) and (1) of the Act and recommended that these allegations be dismissed. Thereafter, the Respondents and the Gen- eral Counsel filed exceptions to the Intermediate Report and briefs in support thereof. 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 filed by the Respondents and the General Counsel, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner.2 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Badham Insula- tion Company, Inc., Pascagoula, Mississippi, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Denying employment to job applicants or otherwise discrimi- nating against them because of their strike or other concerted activities. 1 Unlike our dissenting colleague, we agree with the Trial Examiner that Shook & Fletcher did not discriminatorily refuse to reinstate the seven complainants against it in violation of Section 8(a) (3). In finding a violation of Section 8(a) (3), Member Fanning would rely on the rule stated in Mountain Pacific Chapter of the Associated General Contractors, Inc, et al, 119 NLRB 883, 899, that "neither unavailability of work or lack of application for a particular job serves as a defense to a discriminatory hiring policy when it Is clear that no job would be proffered in any event." We do not think that it is "clear" from the record here that no job would have been proffered by Shook & Fletcher to complainants "in any event " The Trial Examiner found, and Member Fanning does not disagree, that Strickland, Shook & Fletcher's yard superintendent, told the com- plainants, when they applied for employment, that he did not need any further employees on that day, and that, in fact, Shook & Fletcher had no openings at that time. Strick- land's statement was clear that he was refusing to hire complainants for an entirely lawful reason. The General Counsel relies on another and ambiguous statement of Strickland that he was not obliged to hire the strikers and a statement by Vice President Ennis of Shook & Fletcher, on another occasion, that there was always "trouble" with complainants, to establish that Shook & Fletcher would have refused jobs to the complainants even if available. We think that such statements, in view of Shook & Fletcher's clear statement that there were no openings, do not meet the General Counsel's burden of proof. 2 In its brief to the Board, the Respondent Badham Insulation Company, Inc , for the first time contended that the July 14, 1958, strike by Local 55 was unprotected because Local 55 failed to give notices required by Section 8(d) of the Act before engaging in the strike. The Respondent Shook & Fletcher Insulation Company at no time made such a con- tention As the contention based on Section 8(d) was not alleged by the Respondents in their answers, and as it was not raised by the Respondents before the Trial Examiner or litigated at the hearing, we find that it was not timely raised. Accordingly, we shall not consider it Cf. Giustinn Bros. Lumber Co , 116 NLRB 700, enfd. 253 F. 2d 371 (CA. 9). For the same reason, we reject the contention raised by the Respondent Badham Insulation Company, Inc, for the first time in its brief to the Board that the July 14 strike was un- protected on the ground that its purpose was to compel the Respondents to pay for cleanup time, in violation of Section 8(b) (6) of the Act. See International Typographical Union, et at. (American Newspaper Publishers Association), 86 NLRB 951, enfd. in part, 193 F. 2d 782, affd. 345 U.S. 100. SHOOK & FLETCHER INSULATION COMPANY 521 (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to R. E. Griffin, Sr., George R. Hester, and B. F. Scovell immediate employment as journeymen insulation or asbestos workers, displacing, if necessary, any persons so employed after September 2, 1958, in the case of R. E. Griffin, Sr., and George R. Hester, and after November 4, 1958, in the case of B. F. Scovell, and if no such employ- ment is now available, as soon as it becomes available in the Pasca- goula, Mississippi, shipyard, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, as provided in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its offices in the Ingalls shipyard in Pascagoula, Mis- sissippi, copies of the notice attached hereto marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of the Respondent Badham, be posted by it immedi- ately upon receipt thereof and maintained by it for a period of 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Badham to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply herewith. AND IT IS FURTHER ORDERED (1) that the complaint against the Re- spondent Badham Insulation Company, Inc., be, and it hereby is, dis- missed insofar as it alleges unlawful discrimination in employment against L. C. Kittrell, C. P. Bosarge, Jr., Robert A. Griffin, Billy A. Griffin, and J. M. Schmidt, and (2) that the complaint against the Re- 8 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." 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent Shook & Fletcher Insulation Company be, and it hereby is, dismissed in its entirety. MEMBER FANNING, concurring in part and dissenting in part : The majority has found, and I agree, that Respondent Badham violated Section 8(a) (3) and (1) of the Act with respect to three applicants for employment.' I am not able to reach this conclusion, however, without also finding, contrary to the majority and the Trial Examiner, that Respondent Badham also violated these sections of the Act with respect to five other applicants for employment and Re- spondent Shook & Fletcher violated the Act with respect to seven applicants. The crux of this case is that the employees of both Companies struck on July 14, 1958, over the terms of a new contract. In a few days the strike was over and the ex-strikers began to apply for reemployment. Within 10 day most of these employees were back at work. This com- plaint concerns the remaining ex-strikers who applied for work some- time thereafter, beginning on July 28. The Trial Examiner found, and the majority agrees, that all of the ex-strikers were economic -strikers entitled to reemployment if jobs were available for them. It appears, however, that one Hullinghorst, a representative of the In- ternational Association of Heat and Frost Insulators and Asbestos Workers Union, with which Local 55 was affiliated, sided with the 'Companies against the members of Local 55 in their dispute. Indeed, this individual erroneously informed the Respondents that the em- ployees had breached a contract and that the Respondents were under no obligation to rehire them. The Respondents have incorporated this argument in their defense. With respect to three applicants for employment, R. E. Griffin, Sr., B. F. Scovell, and George R. Hester, the majority, affirming the Trial Examiner, finds that Foreman Posey of Badham told them on Sep- tember 2, 1958: "Mr. Hullinghorst said we don't have to hire any of you fellows that walked out and we are not going to hire you." The majority also finds that Posey subsequently told Griffin, when the latter repeatedly sought reemployment, that Posey would like to hire Griffin and Scovell and then said he did not "understand Mr. Cunning- ham [yard superintendent of Badham] wanting to cut his nose off to spite his face." In finding unlawful discrimination as to these three applicants, the majority finds it significant that the Company was in the process of hiring less skilled and therefore less desirable applicants while refusing work to the ex-strikers. Posey laughingly referred to the large group of new employees as "farmers" and told the returning ex-strikers to obtain overalls, a suggestion interpreted by the Trial 4I am also in agreement with the majority that the issue of an alleged violation of Section 8 ( d) by Local 55 was not timely raised by Respondent Badham and should not be considered with reference to the July 14 strike. SHOOK & FLETCHER INSULATION COMPANY 523 Examiner to mean that the Company was hiring anyone it could get, but ignoring the more desirable group of ex-strikers. I am in complete agreement with the above analysis and conclusion. I cannot, however, accept the distinction drawn by the Trial Examiner between Posey's quotation of Hullinghorst and a similar quotation by Strickland, Shook & Fletcher's superintendent, when a group of ex- strikers sought reemployment on July 28. As to the latter, the Trial Examiner concludes that Strickland meant only that replacements did not have to be fired to make way for the ex-strikers. The Trial Ex- aminer concludes that there was no discrimination against these em- ployees "if only for the reason he [Strickland] had no work to give them at that time." However, as the General Counsel points out, this is a completely erroneous concept of the law. The correct rule of law has recently been stated by the Board in the Mountain Pacific case as follows : "The Board and the courts have held that neither unavail- ability of work or lack of application for a particular job serves as a defense to a discriminatory hiring policy when it is clear that no job would be proffered in any event." 5 I cannot accept the Trial Ex- aminer's interpretation of what Strickland meant when he quoted Hullinghorst in light of the damaging and uncontradicted testimony that Vice President Ennis of Shook & Fletcher told the president of Local 55, when the latter sought reemployment for the ex-strikers who were still out of work, ". . . that the men as far as he was concerned, could work on the outside of the shipyard for there always seemed to have been trouble with this certain bunch of men." I must conclude that on July 28 Shook & Fletcher refused to offer employment to the seven applicants for discriminatory reasons rather than the lawful reason that no jobs were available at that time. With respect to five other applicants for employment at Badham, the majority finds, affirming the Trial Examiner, that they did not, in general, make a sufficiently clear application for employment. The record shows, as the Trial Examiner found, that in the Respondents' industry it was "not unusual" for employees to apply for work by telephoning the hiring foreman at home. Most of these applicants made such inquiries and were rejected. In the light of the fact that Respondent Badham maintained a list of Shook & Fletcher employees who had gone on strike, and the additional evidence set forth above, I am of the opinion that these five applicants, as the others, were denied employment for discriminatory reasons. Accordingly, I would find violations of Section 8(a) (3) and (1) with respect to all applicants for employment at Badham in the category of ex-strikers of the July 14 strike. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 5 119 NLRB 883, 899, reversed and remanded on other issues, 270 F. 2d 425. 524 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 Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL NOT deny employment to job applicants or otherwise discriminate against them because they have engaged in any strike or concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL offer to R. E. Griffin, Sr., George R. Hester, and B. F. Scovell immediate employment as journeymen asbestos or insula- tion workers, displacing, if necessary, any persons so employed after September 2, 1959, in the case of R. E. Griffin, Sr., and George R. Hester, and after November 4, 1958, in the case of B. F. Scovell, and if no such employment is now available, as soon as it becomes available in the Pascagoula, Mississippi, shipyard, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. BADHAM INSULATION COMPANY, INC., 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 This proceeding , with all parties represented , was heard before the duly desig- nated Trial Examiner in Pascagoula, Mississippi , from December 1 to 8, 1959, on separate complaints , consolidated for purpose of hearing , against Shook & Fletcher Insulation Company, herein called the Shook & Fletcher Company, or the Re- spondent Shook & Fletcher , and against Badham Insulation Company , Inc., herein called the Badham Company, or the Respondent Badham. The main issue litigated was whether the Respondent Companies had violated Section 8(a)(3) and 8(a)(1) of the statute. After the close of the hearing, briefs were received by the Trial Examiner from the General Counsel, the Charging Parties, and both of the Re- spondents. SHOOS & FLETCHER INSULATION COMPANY 525 Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT COMPANIES Shook & Fletcher Insulation Company, an Alabama corporation with its principal place of business in Birmingham, Alabama, is engaged in the sale and installation of insulation material. During all times material herein, it has engaged in the installation of insulation for the Ingalls Shipbuilding Corporation in the Ingalls ship- yard at Pascagoula, Mississippi, and for the year ending September 23, 1958, it purchased for use at that yard materials, supplies, and services of the value of approximately $100,000, all of which were received from points outside the State of Mississippi and shipped into the State of Mississippi. During the same period, this Company completed products to be shipped to points outside the State of Mississippi of a value in excess of $200,000. Badham Insulation Company, Inc., also an Alabama corporation with its prin- cipal place of business in Birmingham, is engaged in like work. During all times material herein, it was engaged in the installation of insulation for the Ingalls Ship- building Corporation in the Ingalls shipyard at Pascagoula, Mississippi, and during the year ending December 2, 1958, a representative period, this Company pur- chased materials for use in the Ingalls shipyard at the value of $108,479, approxi- mately 90 percent of which was received from points outside the State of Mississippi. I find that both the Respondent Companies are engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Heat and Frost Insulators and Asbestos Workers, Local No. 55, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A Picture of the Case This case arose in consequence of a strike in the summer of 1958 by the members of Local Union 55 then employed by the Respondents in the Ingalls shipyard in Pascagoula. There developed a dispute over paid cleanup time previously guar- anteed by contract; in protest over the Respondents' refusal to continue to guarantee this privilege in writing, the employees ceased work. The strike was short-lived; many of the strikers returned in a matter of days; others were replaced very quickly. Eight of the strikers, who also abandoned their cause, applied for work shortly thereafter but were not given employment. They filed charges of unlawful dis- crimination as a result. It is the basic theory of the complaint that the Respondents denied them work because they had engaged in concerted strike action. The Re- spondents interpose various defenses. Bargaining History Prior to the Immediate Negotiations of 1958 The insulation contractor Respondents, each with its main office in Birmingham, Alabama, operate widely in Southern States. They do construction insulation, called "outside" work, and shipyard insulation work. Previous to the summer of 1958 bargaining for the environs of the cities, of Mobile, Alabama, and Pascagoula, Mississippi, has been carried on through the Master Insulators Association, which negotiated contracts with Local 55. Local 55, affiliated with the International As- sociation of Heat and Frost Insulators and Asbestos Workers, has a jurisdictional area embracing both Pascagoula and Mobile. Shook & Fletcher has been a direct member of the Association. There is some ambiguity in the record on whether the Badham Company also was a direct member of the Association throughout this period. It is clear, however, that between 1956 and 1958 the Badham Company deemed itself bound by the association contract and carried out its terms in the contracting work it did in the Ingalls shipyard. The last agreement shown by the record covering work at the Pascagoula shipyard was negotiated in 1956, and by its terms expired on June 30, 1958. In the past, bargaining for both "outside" and "shipyard" work was carried on in the same bargaining conferences, with the eventual written contract containing, as an addendum, special provisions applicable only to shipyard work. Early in 1958, Mr. Ennis, vice president of Shook & Fletcher, instructed the negotiators of the Association to advise the bargaining committee of Local 55 that the Association 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would no longer bargain on behalf of the Respondents for shipyard work, and that a separate deal must be negotiated for the shipyards. Local 55 made no objection. The parties then negotiated for outside work and reached final agreement on June 26. The contract was not signed until a number of weeks later. Mr. Ennis and Mr. John Badham, president of the Badham Company, went to Washington, D.C., in the spring of 1958 to discuss what they considered their special shipyard problems with J. W. Sickles, international president of the Insulators Union. They told Sickles that they feared Local 55 might make excessive demands; that they were already paying higher wages than other yards; and that their position with respect to the Ingalls Shipbuilding Company was "delicate." Badham added that they might have discussed with Sickles the question of shift work, and cleanup time. Present with Sickles at this Washington conference was Hullinghorst, inter- national assistant to the president and himself an international vice president. Bad- ham testified that on the question of the cleanup time, and the past privilege of men leaving the ship in advance of the whistle, Sickles was sympathetic, and said: "If you fellows want to give them something else that's up to you, and you are giving it to them just out of your own pocket, but you don't have to." After the Local 55 officers had successfully negotiated the outside contract, J. L. Pose, the business agent, telephoned Mr. Ennis in Birmingham on June 28, said there remained only 2 days before expiration of the contract, and added if a new one were not negotiated there would be a strike at its termination. Ennis replied he would call back. Instead Ennis and Mr. Badham telephoned Sickles in Washing- ton, told him they feared there might be trouble, and asked for an international representative to participate in the bargaining. Sickles sent Hullinghorst to the area for this purpose. Hullinghorst took care of the arrangements and set up a meeting for July 1 at a hotel in Mobile.' The Bargaining Conference of July 1 As Hullinghorst had arranged, the parties met to negotiate in the Battlehouse Hotel in Mobile. On behalf of Local 55 were J. L Pose, business agent and financial sec- retary; G. R. Pose, president; Oden, vice president, and Hulhnghorst. For the Companies, there were Mr. Badham, Mr. Ennis, and Cunningham, yard superin- tendent for the Badham Company. The parties exchanged written demands. The Local demanded the terms which had been won from the Insulators Association on June 26, for outside work. Cunningham testified that Local 55 had presented these same demands to him several weeks earlier. The Union's principal demand was for a wage increase It had succeeded in winning a 171/2 cents per hour immediate raise for "outside" workers, and two further 10 cents per hour raises for later dates in a 2-year contract The record does not disclose that Local 55 made any other de- mands for modification of the contract to affect shipyard employees Discussions began at 10 a m. and continued, with minor interruptions, throughout the day. It was not until 7 p in that agreement was reached as to what proposals for a new contract the union officials were to submit that evening to the union members for acceptance or rejection One of.the issues of major concern to the Companies and to the employees related to cleanup time, and a critical question in this case is pre- cisely what was the offer of the Companies which the union representatives brought back to the members for consideration. The Companies' demands are best understood in the light of the past practice in the shipyard. The employees had always worked on the basis of only one regular shift per day, with all work performed during hours outside the regular 8-hour shift paid at an overtime rate of double time. It was the Companies' desire no longer to be restricted to only one 8-hour regular pay shift per 24-hour period, and to schedule i Pose testified that Ennis did not call him back, but that on the 29th, he heard from Hullinghorst instead. Hullinghorst asked what the trouble was and then requested that the yard not be shut down On the telephone Hullinghorst also told Pose that he, Hulhnghorst, would set up a meeting with the Companies. Pose continued to testify that Hullinghorst arrived in Mobile on June 30 and went to a meeting of Local 55 that evening. There, according to Pose, Hullinghorst instructed the members of Local 55 to continue working on Tuesday, July 1, even absent a contract, the men objected, and Hullinghorst said he was not requesting, but ordering them to continue working. Hulhnghorst ad- mitted lie was sent by Sickles as a troubleshooter, but was evasive as to how the July I meeting with the Companies came to be set up; he denied having been at the June 30 meeting of the Local at all. He did say, however, that he was told on the 29th by President Sickles to go south to assist; he insisted he arrived instead on the morning of July 1 For reasons which will appear clearly below, I credit Pose as to these events, and I do not credit Hullinghorst. SHOOK & FLETCHER INSULATION COMPANY 527 instead more than one such shift daily, with each shift paid at single time rate for whatever the regular work hours might be. The Companies also desired to reduce the overtime rate of pay to time and a half instead of double time. In order to achieve these objectives, it presented the following two written demands upon the Union: Art. II: The "regular" workday shall be 8 hours and shall conform to the shipyard schedule for shift work. Art. 1V: All labor in excess of the "regular" workday or shift shall be paid for at the rate of one and one half (11h) times the regular hourly rate, work performed on Saturday and holidays included. All work performed on Sunday shall be paid for at the rate of double time. As was to be expected, much of the discussion during the day involved the wage issue. Indeed, the Companies did not offer to yield on this issue until the very last moments of the session late in the evening, just at the moment when Local 55's offi- cers were about to return to the union hall and to invoke a strike resolution by the members. There was also considerable argument, however, on the two principal demands of the Companies as set out above. The union representatives strongly resisted the proposal of two shifts, for this would greatly reduce the amount of overtime work that would have to be scheduled. The separate articles II and IV presented integrated problems, for with the reduction of the amount of overtime work, the further reduction in the overtime rate gained added economic significance. It does not appear that the union negotiators yielded at all on these two items until the very end when the Company agreed to their wage demands. It is clear, how- ever, that finally there was an understanding, at least to the extent that the union officers agreed to bring the resultant proposals to the members and even to recom- mend their acceptance. In substance the Union yielded, for they agreed to two, regular shifts, and to reduction in overtime rates to time and a half, except for Sundays and holidays when it was to remain at double time. Discussion of the new 8-hour shift led to talk about cleanup time . One of the express provisions of the written addendum to past contracts as far back as 1951 was that shipyard employees had 5 minutes before lunchtime and 15 minutes be- fore end of shift for cleaning up. Over the years this contract clause had been effectuated by the employees being permitted to leave the ship 5 and 15 minutes before the whistle blew to clean themselves and change clothing in certain shacks off the vessels. During the discussion, the union officers asked that this clause be continued in the new contract. The Companies said that they would no longer agree to such provision and they asserted, in justification, that such a clause was embarrassing to the Respondents because other shipyard employers had no such provision in their union contracts. They explained that the Ingalls Corporation had complained of the insulation employees leaving the ships before the whistle blew, when other employees remained aboard. They also added there had been complaints about insulation employees congregating at the cafeteria or snack bar in advance of the whistle, and even leaving the yard so as to reach their parked cars and depart the premises in advance of all other employees. The Local 55 agents expressed fear that absent the protection of an explicit contract clause, the employers would elim- inate the past practice of permitting the employees to clean up and change clothes on company time, and of leaving the ship early to use the cleanup facilities where they changed clothes. It is at this point that the testimony of the separate groups of negotiators as to what was eventually proposed by the Company and brought back to the union membership parts ways. According to Badham, Ennis, and Cunning- ham, the proposal was that all employees must remain on the ships until the whistle blew, but that they could have the necessary time to clean themselves on the ship before the whistle blew. They testified they assured the employees that the foremen would allow individual workmen reasonable time for such purposes, depending upon the nature of the materials they had used, and that the period might range from 5 minutes up to as much as 30 if necessary. They testified this was the Com- panies' insistence at all times and that this is what the union negotiators eventually agreed to submit to the members Hullinghorst testified that this was his under- standing, too. Indeed, he added that during the negotiations he supported the com- pany demands by reiterating that 8 hours' pay must be accompanied by 8 hours' work. On the totality of the record, and on Hullinghorst's own admission, this became quite a refrain with the international representative, both during the all-day conference on July 1, and at the events which came later. J. L. Pose and G. R. Pose, two of the local union officials, testified instead that all the Company eventually insisted upon was that the express provision for cleanup, time not appear in the contract, because such a contract would make it difficult to negotiate with the Ingalls Shipbuilding Corporation for added work. G. R. Pose 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that the company representatives explained that if one of the contractors in the yard had such a contractual agreement, the other craft unions there would demand the same privilege in their contracts. According to him, the Companies finally agreed that past practice would continue unchanged, that the employees could continue to leave the ship to clean up and to change their clothes in the shacks, but that matters would only change in that the contract would henceforth omit reference to cleanup time. G. R. Pose in substance corroborated J. L. Pose. Oden, the Local 55 vice president, testified that he never did clearly understand what the Company's final position with respect to cleanup time was. At one point he said the Respondents insisted the men not leave the ships before the whistle blew. He also said there was expression of assurance that cleanup time would be afforded, but that he, Oden, simply did not understand whether the Company intended they should have this privilege on the boat before the whistle or whether they could continue as before to have it after leaving the boat before the whistle blew. The Ratification Meeting Tuesday Evening From the negotiating conference at the Battlehouse Hotel, the union officers pro- ceeded to the union hall where the employees were assembled to hear the results of the bargaining negotiations. After briefly opening the meeting, the president turned the meeting over to Hullinghorst for him to explain the Companies' proposals. Hullinghorst went through the various items that had been discussed and that would result in changes in the agreement When a number of members understood there would be two regular 8-hour shifts, and no explicit provision for cleanup time, there was a general protest. Concerning Hullinghorst's explanation of what the company proposal was on the question of cleanup time, 11 members testified one way, and Hullinghorst, corroborated only by Posey, the yard manager of the Badham Com- pany and still a member of Local 55, testified in contradiction. According to J. L. Pose, "Hullinghorst explained to the men that we would get the cleanup time like they had in the past but the shops didn't want it in the written agreement because it was too hard to sell the job." Employee Kittrell: "He said that the cleanup time would continue as it had been in the past." Employee Scovell: ". . . Hullinghorst . said . .. that they didn't want it in the contract . did not want it on the contract because it was hard to sell to the buyer, but that the supervision would give it to us." Employee Wilson: "In reference to the cleanup time, he said there was no change in the previous contract that we would continue receiving the same as before." Griffin, Senior: ". . Mr. Hullinghorst said . . . the Company don't want it in black and white in the contract, it makes it hard to sell the job and then he said `They will give you the same cleanup time just as you have always had. There will be no change whatever in the cleanup time'. . . To the same effect: Employees Hester, Fritz Breland, C. K. Breland, and Charles Bosarge. According to G R. Pose, Hullinghorst said: "Your cleanup time will be as it was in the past except that it will not be written in the contract." Hullinghorst insisted from the witness stand he clearly explained to the employees that under the company proposal they could not leave the ship before the whistle blew, but they could have the necessary time-15 or 30 minutes if necessary-to clean up on the ship itself He said he tried hard to sell them on this proposal, and repeated to them that they should give an employer 8 hours' work for 8 hours' pay. He said he told them that 8 hours' work for 8 hours' pay "was absolutely necessary." Posey, the yard manager, quoted Hullinghorst as having said the Companies wanted the men to stay on the ship, and that the foremen would give them enough time to clean up A vote was taken at the end of the meeting and by about 2 to 1 the members voted to accept the proposals On Wednesday morning, July 2, all the employees went to work. The Companies put the wage increase into effect immediately. The shift arrangement was also instituted that day, with more than one shift. Likewise, the new overtime schedule went into effect, with employees generally working 10 hours, the last 2 paid at the rate of time and a half in place of the double time for overtime of the past The men continued to leave the ships 5 minutes before lunchtime and 15 minutes before end of shift. Matters remained thus throughout the remainder of that week and the entire week following July 13. During this 2-week period, however, rumors spread among the employees that the Companies were going to eliminate the cleanup time, and to put an end to employees leaving the ships in advance of the whistle. That the Companies had voiced an intention to make a change in the established system was admitted by Yard Foreman Posey, who said he told a group of employees as much. The Respondents' explanation of their failure to put into effect the asserted SHOOK. & FLETCHER INSULATION COMPANY 529 .'agreement" that the men could not leave the ships in advance of the whistle, was simply that they feared there might be a work stoppage by the employees in resent- ment. Friday, July 11, Saturday, July 12, and Monday, July 14 On Friday, July 11, J. L. Pose, the business agent, together with Steward Schmidt, and Ladnier, presented themselves in the yard office where they met Ennis, Strick- land (the yard superintendent for Shook & Fletcher), Cunningham (the Badham superintendent), and Posey. Pose said there were certain fringe matters which he wished to add to the contract in the form of a written addendum He had these in writing in his hand. He also had at that time a typewritten or printed form of an overall contract, which however had not been filled in in all details. He also said he wished to have the matter of the 5 and 15 minutes' cleanup-time provision added to the contract as a further fringe benefit among others The parties talked about these things awhile and finally Ennis, the Shook & Fletcher vice president, with the agreement of Cunningham on behalf of the Badham Company, agreed with Pose that he could write out the fringe benefits then still being practiced in the yard, and attach them to the contracts. Ennis and Cunningham explained that they agreed to do this, although these fringe matters had not been discussed at the bargaining conference, because the Companies were in any event giving these benefits to the employees at that time. As to the cleanup time, they took the position with Pose that that was a matter of importance which had been negotiated and settled at the bargaining conference. They therefore refused Pose's demand that the cleanup time be provided in writing in the contract. Neither at this conference, nor on any other occasion, did the company representatives offer to assure the employees in writing that they could continue to clean up in advance of the whistle provided they did so without leaving the ships. The next day, July 12, Local 55 held a regular meeting in Mobile. There were present about 30 members. The employees discussed Pose's failure to prevail upon the Companies to give something in writing as assurance that the employees would not be compelled to remain on the ships until whistle time. The members present instructed the business agent to return to the Companies and demand a letter assur- ing a continuance of the cleanup privilege off the ship; it was the thought of the mem- bers that as the Respondents' principal concern was to avoid reference to cleanup time in the contract, they should not refuse a collateral letter to assure continuance of the past practice, as had been agreed. The employees also decided at this meeting that in the event the Companies refused any written guarantee, there would be a work stoppage. Thus, Pose himself testified that the men instructed him to go to the Companies on Monday to ask for the letter, and also decided "if they didn't get the cleanup time they would not work in the yard, they wouldn't stay in there and work." Employee Kittrell said the motion was "that we would walk out" if the letter was not obtained. According to employee Scovell: . it was reasoned that if they didn't come to some kind of agreement that we would walk off the job the next day and it was voted on and it was passed unanimously ." According to Griffin, Senior: . if he [Pose] couldn't get it straightened out then we would leave the job." No formal vote by show of hands appears to have been taken, but it is clear there was unanimous agreement of all members present to go on strike if their demand was not granted. The Poses returned to the shipyard office on the morning of July 14, Monday. Here they conferred with Mr. Ennis and Cunningham, both of Shook & Fletcher. Again they discussed the cleanup time issue with them and asked: ". . . we wanted something in writing on it, that they wouldn't take it away from the men and they wouldn't give us anything in writing." The company representatives flatly refused, saying that this question had been negotiated and settled when the Union ratified the Companies' proposals on July 1, and that the matter was therefore not to be nego- tiated further. As soon as the two local representatives left the office, word of their failure spread throughout the yard and the members of Local 55 began to leave work. A number left that day, another large number left the next day, and some on Wednesday. Ennis testified that the work stoppage took every member of Local 55 off the job, totaling about 65. He said that only one member remained at work, and he was a foreman. Total employment with Shook & Fletcher on July 14 was about 135, including both members of Local 55 and "permit" workers. Permit workers are either members of other Asbestos Workers locals, members of other craft unions, or helpers from other classifications of employees. The arrangement between the Respondents and 597254---61-vol. 130--85 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 55 has always been that when more employees are required at the shipyard than are available through Local 55 at any given time, the Companies may hire either skilled asbestos workers from other locations, or less skilled or other craft employees to do insulation work. These were called permit men. During the strike only permit men continued to work. On Wednesday, July 15, Ennis telephoned International President Sickles in Wash- ington, and Sickles said he would send Hullinghorst again to Pascagoula. Hulling- horst proptly telephoned Business Agent Pose, and ordered him to gather the negotiating committee. The next day, July 16, the Local 55 committee and Hulling- horst met in the yard office with Mr. Ennis, Mr. Badham, Cunningham, and Strick- land. Hulhnghorst first accused Pose of calling the strike, said it was illegal because in violation of an agreed-upon contract, and added that it exposed the Local to suit by the Companies. He ordered the local officers to get the men back into the yard. G. R. Pose denied he had urged the people to strike, and protested he had attempted to prevail upon them to continue working. The question of the cleanup-time issue arose again and the company officials again insisted the matter had been settled by agreement. Again Hullinghorst, in discussing this matter of the cleanup time, and taking issue with Local 55's right to protest, said on a number of occasions "he expected 8 hours' work for 8 hours' pay." Oden quoted Hullinghorst at that time "if it comes to a showdown on it that he would back the Company." Through- out this conference the company representatives persisted in their position that a question of cleanup time had been settled and could not be revived. Again the testimony of Hullinghorst conflicts with that of the officers of Local 55 in an important respect as to what was said at this conference. According to G. R. Pose, Hullingtorst announced to the Company, "You do not have to hire the men that quit the job." J. L. Pose testified that at a followup conference the next day also in the yard office in the presence of the company officials, Hullinghorst told them "that they didn't have to hire any of those men-that they didn't want. Any of those men that had quit-they didn't have to hire any of them back that they didn't want." Against this Hullinghorst testified that he told the company representatives they were not obligated to release striker replacements in the event the strikers attempted to return; that the Company was not required to discharge any permit man who might be hired during the strike. Whatever their reason, whether because Hullinghorst imposed upon them or because they thought it wisest in the circumstances, the local union officers attempted to prevail upon the strikers to return and even assisted the company representatives to find replacements with permit men from other crafts or other locations. As stated above, the large bulk of the strikers returned to work within a matter of days. Because of widespread advertisements on the radio, newspapers, and television, many employees were hired within the next 2 weeks. Shook & Fletcher changed its cleanup system on July 21, and Badham Company did likewise on July 16. From those dates all employees have been required to remain on the ships until the whistle blows, both at lunchtime and at end of shift. Conclusions Respecting the Status of the Strikers The essential allegations of the complaints are that a number of the members of Local 55 who struck in July were either refused reinstatement when they abandoned the strike, or denied employment by the Respondents when they sought it, for the reason that they had engaged in strike activity. A necessary part of the proof, there- fore, is evidence relating to their applications for reinstatement or employment at later dates, and the reaction of the two Respondents to such applications Because a fundamental aspect of the defense of both the Respondents is that the strikers named in the complaint removed themselves from the protection of the statute by their strike activities, I deem it necessary first to dispose of this defense. If. in fact, these employees engaged in an illegal strike, or carried on activities which are unprotected by the statute, the Respondents might have a right to deny them rein- statement or even employment of such activities. In that event, it would be unneces- sary to consider at all the evidence relating to their applications or to decide whether or not, as also alleged in the complaints, the Companies refused to give them avail- able work. On this question of whether the strike was protected activity, the Respondents make two separate contentions. The first is that on July 14, the day of the strike, there was a contract in effect containing a no-strike clause and that therefore the strikers, having violated the contract, removed themselves from the protection of the statute. The second is that, even if there was no contract in effect, the employees struck in derogation of the authority they had conferred upon the majority repre- sentatives to bargain on their behalf, and, by thus engaging in a "wildcat" strike, SHOOK & FLETCHER INSULATION COMPANY 531 exposed themselves to a justifiable denial of employment. If either of these two basic contentions prevails, it may well be that the complaints must be dismissed entirely. After expiration of the 1956 contract on June 30, 1958, no other contract was ever signed between Local 55 and either of the Respondents respecting the employees in the Pascagoula shipyard. The Respondents insist that by late evening on July 1, following the all-day conference in the Battlehouse Hotel, the respective groups of negotiators had reached a clear understanding as to what the Companies' final pro- posal was and as to the tentative agreement, therefore, which was to be reported to the union members for their approval or rejection. There is no indication that throughout that all-day conference, the negotiators discussed any part of their expired contract other than those proposals by the Company which would change certain provisions, or any counterproposals by the Union which would likewise alter the old contract. More significantly, there was no mention, so far as appears on this record, of the previous no-strike clause in the expired agreement. The Respondents argue that implicit in the alleged overall agreement was the thought that the earlier contract would in all other respects remain unaltered. The 1956 contract expressly provided that "there shall be no lockouts except . or strikes.. . Further support for the Respondents' contention on this point is that the reference sheet containing its proposals at the bargaining conference also contained the following: "Note: All articles not modified as above shall remain as written in the standard agreement form." In support of its contention that a complete new agreement had been agreed upon, with only the technicality of signatures remaining, the Respondents placed into evi- dence a partially filled in printed form contract which Pose, the Local 55 business agent, had in his hands on July 11 when he appeared in the yard office and asked the Respondents to agree to add a written addendum for various fringe benefits. Like the printed form on which the 1956 contract terms had been added in type, this was also a printed form bearing, in original print, the words "Master Insulators' Association and International Association of Heat and Frost Insulators and Asbestos Workers." Unlike the earlier printed agreement, however, the one which Pose had in his hands that day contains no no-strike provision whatever. The only clause which might conceivably be construed as an effective no-strike agreement reads "trade dispute or grievances shall be settled without secession of work, and in cases where the parties to this agreement fail to agree the matter in dispute shall be re- ferred to the joint trade board." Although the Respondents repeatedly referred to the "standard form of agreement" used between employers and this Union or its International in the past, there is no explanation of this substantial variance in the pertinent clauses, between the two "standard forms" received in evidence To the extent that the Respondents look to the document in Pose's hands on July 11 as evidence of an agreement reached, their contention that the strike was in violation of an existing contract has no basis at all. Apart from this discrepancy, I do not believe that it can be said on the record as a whole that as between the Respondents on the one hand and Local 55 on the other, a meeting of the minds was ever reached so as to support a factual finding that an oral agreement was made by the end of the union meeting on the evening of July 1 when the employees voted to ratify. The cardinal rule of law that contracts must be reduced to writing and signed is but a recognition of the fact that human memory is at best unreliable. Particularly is this so where the participants in the discussions said to have established a meeting of the minds are great in number, where the com- ponent elements of the asserted contract are varied and heartily disputed, and where each of the clauses involved bears a direct relationship to all of the others. Indeed, the record in this very case well illustrates the wisdom of the fundamental principle that, particularly in the area of collective bargaining, the industrial stability which it is the aim of this statute to achieve is endangered by oral agreements. So much of substance in labor relations contracts can depend upon the very precise words used in particular clauses. The high probability of misunderstanding, therefore, as to pre- cisely what was agreed upon, can only be eliminated, and industrial peace assured, if the agreement in fact reached is reduced to writing and signed.2 The subject matter of the cleanup time was a maior issue in dispute during the Battlehouse Hotel conference. At bottom, the question was whether the new con- tract should provide explicitly, as had the recently expired one, that the employees could have the 5 and 15 minutes cleanup time. Whatever confusion there may be in the testimony of the many witnesses concerning all that was said during that meeting, it is clear that the Companies did not want the contract to refer to the 'Associated Machines, Inc., 114 NLRB 390, affd . 239 F. 2d 858 (C.A. 6). 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject at all. And the representatives of Local 55 wished that the new contract must expressly provide for such cleanup time. That the Respondents' principal concern was that the contract should make no reference to the subject is the clearest thing on this record. The very reason they kept advancing for their demand on this point was that such a contract provision would be objectionable to the Ingalls Shipbuilding Corporation in future negotiations and provocative of similar demands on the part of the many other unions having collective-bargaining agreements in the shipyard. Much was said during the daylong conference on this as well as other issues. According to the Local 55 representatives they started by insisting the contract con- tinue to refer to the cleanup time; they said they ended by agreeing to take back to the membership a company proposal that the past practice would remain unchanged but not mentioned in the contract. The Company started by making no reference to cleanup time at all. It was only in rejecting the union demands on the subject that company representatives began to explain the reasons why the Company was con- cerned. They too did much talking on the subject. There was also much talk by Hullinghorst, who quite clearly supported the company negotiators at least on this point, of 8 hours' work for 8 hours' pay. The constant reference to the equity of 8 hours' work for 8 hours' pay could certainly convey the impression to the union representatives that the Company's proposal was not to permit the employees to clean up on the shift before the whistle blew, but instead to require them to wash and clean up on their own time. The refrain was also inconsistent with any proposal that the employees could take anywhere from 5 to 30 minutes time to clean themselves before the whistle blew. In view of the extended discussions that must have occurred in the give-and-take of the bargaining negotiations, it is understandable that the witnesses could not agree on precisely what was said at any given time during the long session. The testimony, however, is clearly in conflict as to what the closing position was. The company witnesses insist the final offer was: No mention of the matter in the contract, with company permission for the employees to take the necessary time for cleanup on the ship on company time. Against this, the testimony of the two Poses, who are most intimately concerned with the interest of the members of Local 55, is unequivocal that the final position of the Companies was that matters would not change at all and that the only difference in the future would be that the conti act would not men- tion the matter. Perhaps the testimony of Oden, who frankly admitted that by the end of the day he simply could not understand precisely what the Company was offering, is the best reflection of the conversations of the day. He admitted, on cross- examination, that he heard practically every statement that the witnesses who pre- ceded him said they had heard during the daylong conference, including those favorable to the Respondents' assertion now, and those against. On the question of whether or not a meeting of the minds was ever reached by Company and Union, the most important testimony is that which relates to what happened at the union ratification meeting on the evening of July 1. The Respond- ents do not contend that an oral contract came into being and bound the strikers later in consequence of the understanding reached by themselves and the Local 55 representatives at the end of the Battlehouse conference at 7 p in. The Respondents correctly assert instead that if the contract was reached at all, it was reached when the membership of Local 55 voted on the company proposal at their union meeting later that evening. Precisely what Hullinghorst said to the members-it was he who had exclusive responsibility to report back and explain the Respondents' offer-pre- sents a clear conflict in the testimony. I resolve this conflict adversely to Hullinghorst. In varying phrases, but substantially in complete consistency, about 10 members who were present testified that Hullinghorst had assured them, when expressions of concern were voiced by various members, that the Respondents intended to continue the precise cleanup practice of the past, and that the only thing that would change would be the deletion of any reference to the subject in the contract. To the con- trary, Hullinghorst testified the Companies' proposal was to change the past practice and require the employees to remain on the ship until the whistle blew. His testimony as a whole revealed inconsistencies and on some points was in direct conflict with clearly credible mutually corroborated testimony of both General Counsel's and Respondents' witnesses While saying he assured the employees they could continue to take as much as 30 minutes before quitting time to clean up, he repeatedly justified the Companies' proposal on the grounds that it was one of the "Ten Com- mandments" of the International Union that for 8 hours' pay an employee must give 8 hours' work. But this necessarily means that cleanup time would have to be taken after the whistle blew, precisely the fear in the minds of the employees as to what might happen if the contract no longer contained the written assurance of the SHOOK & FLETCHER INSULATION COMPANY 533 Company. Hullinghorst also testified that Local 55 membership had voted not to ask for wage increases in these negotiations , and that it was he who prevailed upon them to ask for raises. He later admitted the local committeemen entered the bargaining conference with the complete contract negotiated for outside workers as their open- ing demands, including the 371/2 -cent wage increase. And Cunningham, a yard superintendent, said he had received the same demands weeks earlier. Hullinghorst also insisted that he did not attend the Local 55 meeting on the evening of June 30, before the Battlehouse meeting. He erred, for the evidence is clear, by a number of members of the Union, that that evening he exhorted the members not to strike in the absence of a contract . Hullinghorst also denied having returned to the yard on July 17, after his first discussion with the company representatives following the strike. Company representatives themselves , including Yard Superintendent Cun- ningham , put Hullinghorst there on the second day. More important to me, however, on the question of Hulinghorst's credibility in this hearing, is that at the very time of the hearing, while he was testifying, he was under suspended sentence of imprison- ment by a Federal district court for violation of the "kickback" statute. In 1956 he was convicted by a trial jury for violation of Title 18 , Section 874, of the United States Code, and sentenced to $1,000 fine and 5 years' suspended sentence.3 Hullinghorst arrived in Mobile to "assist" in these negotiations in consequence of the Respondents' request, after having learned of their demands some weeks earlier when Mr. Ennis and Mr. Badham visited Washington expressly to enlist the assistance of Sickles, Hullinghorst 's superior, and in a frame of mind receptive to the Companies' request for changes in the working conditions . Mr. Badham testified Sickles had been sympathetic to his and Mr. Ennis' desires for changed conditions in the ship- yard. Hullinghorst was present at the Washington conference in Sickles ' office; and he did not conceal at the hearing that both during the bargaining conference and after the strike, he spoke in favor of the Respondents' demands and critically of the desires of the members of Local 55. I do not credit Hullinghorst on this record. In the course of the discussion at the union ratification meeting, Breland, a member, had occasion to say that in his opinion he thought surely the Company would con- tinue to permit the employees to leave the ship in advance of the whistle as a safety measure. The Respondents would infer from this statement that the employees were told and understood the company proposal to be that no one would leave the ships in advance of the whistle . This contention is unpersuasive because, according to the employees, the subject of concern that evening was whether or not they could rely on an oral promise to continue the practice of the past now that the contract would no longer give them assurance . They were considering whether or not to go along with the proposal that they trust the Company in the future. To them, there- fore, Breland's statement could as well have been an assurance that they could rely upon the Respondents because in any event the Companies would be unable to avoid releasing them before the whistle in view of the safety measures required. Equally unpersuasive is the Respondents ' argument that acceptance of its proposed article II during the bargaining conference suffices to prove that the union negotiators agreed that no one should leave the ship in advance of the whistle, and that therefore this thought was reported to the members and ratified by them. Article II provides that the regular shift should be 8 hours, but there is nothing in the record to show that this clause was taken to mean that the cleanup arrangement would be any different from the past . On the other hand , the record shows affirmatively the reason behind this proposal, which was to permit two shifts instead of one, and thereby reduce the necessary overtime work hours. It was in this context that article II was offered and discussed . The Respondents now would attach too great a significance to one item of bargaining , and by implication require me to ignore all the evidence concerning the discussions that took place during the negotiations on the entirely separate issue of cleanup time. And finally, to further support its assertion that a contract had been made, the Respondents point to the fact that many of the substantial terms of the proposed agreement were put into effect the very day after the union ratification vote. And it is true that wages were increased the next day, two shifts were provided , and over- time pay was reduced to time and a half in place of the double time of the past. 3 Title 18, Section 874, of the U.S. Code, reads : "Whoever, by force , intimidation , or threat of procuring dismissal from employment, or by any other manner whatsoever induces any person employed in the construction , prose- cution, completion or repair of any public building, public work , or building or work financed in whole or in part by loans or grants from the United States, to give up any part of the compensation to which he is entitled under his contract of employment, shall be fined not more than $5,000 or imprisoned not more than 5 years , or both " 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Significantly, however, no change was made in the past practice of leaving the ship in advance of the whistle . The employees continued to leave 5 minutes before the noon whistle and 15 minutes before the end of shift . If in fact there had been agree- ment on this issue, as the Respondents contend , there appears no reason why that item also, admittedly one of the major concerns of the companies , was not also im- plemented immediately. The Respondents' witnesses sought to explain away this discrepancy in the matter by saying they feared the employees would strike. If in fact the union members had voted to accept such a proposal , there was no basis for such fear. A more likely explanation is that the Respondents knew the employees had been left under the impression that they would continue in the future to have the privilege of the past, but without contract assurance. On the totality of the record I can only conclude that on this substantive dispute between the Respondents and Local 55 , the shipyard employees' bargaining agent, the parties never did see eye to eye or come to any agreement . It may well be that the company representatives believed that in the course of their discussions with the union repersentatives they had made clear to them what they really wanted , and had even persuaded them to take such a proposal back to the members. With Hulling- horst, a very outspoken and major participant in the negotiations , evincing at every turn his agreement with the Companies ' demands, Mr. Ennis and Mr. Badham, of the Respondents, might well have been misled into a feeling of confidence that their original demand had been accepted . I cannot, however, ignore the equally credible testimony of the representatives of Local 55 respecting the ultimate position of the Companies at the end of the day. More significant , as stated above, at the ratification meeting the members were told they would continue to have the privilege of the past, and that all that would change was the form of the guarantee , an oral promise to substitute for the written assurance of the past. In this state of affairs , the parties never did achieve a meeting of the minds such as could be said to bring into existence a binding agreement between them . And if, as appears, the Respondents in good faith believed they had a contract and therefore gave the wage increases which they considered a concession in return for other demands granted , there were compensating elements which the employees in turn also conceded to the Respondents when they continued to work after July 1 . From that day on their overtime rate was reduced, and indeed, the amount of overtime work that could be performed was largely reduced by institution of the two regular-shifts system in place of the single one of the past. In conclusion , I find that at the time of the strike on July 14, 1958, there was no contract in effect between Local 55 and the Respondents , and that therefore when the employees struck their conduct was not in violation of any contractual provision. Was the Strike Unprotected as a Wildcat Strike The Respondents' second attack upon the entire complaints is that the employees involved were in no event entitled to reinstatement or initial employment because they engaged in a wildcat strike. In support of this defense they point to the rule of law enunciated in the Draper case.4 As I see it, the principle there stated is that a strike is unprotected when "the striking employees were guilty of interfering with collective bargaining which was being carried on by their duly authorized agent." As the court stated: Minority groups must acquiesce in the action of the majority and the bargaining agent they have chosen; and, just as a minority has no right to enter into sepa- rate bargaining arrangements with the employer, so it has no right to take inde- pendent action to interfere with the course of bargaining which is being carried on by the duly authorized bargaining agent chosen by the majority. I believe the rule of the Draper case is inapposite to the facts presented here. While there may have been no formal vote taken at the union meeting of Saturday, July 12, when the shipyard members of Local 55 met to determine their course of action in consequence of the indication the Companies were about to discontinue the cleanup time, there is no question but that the members present were unanimously in agreement to demand a letter of assurance from the Respondents, and to strike in the alternative. There is no element of minority as distinguished from majority action in this case. Nor can it be said that what happened on Monday, July 14, was anything other than "union" action. It was the Union which sent the two Poses to meet with Mr Ennis and Mr. Badham on Monday, July 14, expressly to press the demands of all of the members for the letter of assurance. The demand and refusal 4 N L R R v Draper Corporation, 145 F 2d 199 (C A. 4), denying enforcement of 52 NLRB 1477. SHOOK & FLETCHER INSULATION COMPANY 535 was, of course, a form of bargaining. It would stretch matters to say that the strike which resulted from the flat refusal interfered with bargaining. Indeed, it was the un- equivocal position of the Respondents that the question of cleanup time had already had been settled and that there could be no bargaining on the subject at all. More- over, the record is clear that all members of Local 55 then employed in the yard ceased work immediately upon learning of the Companies' position. The only mem- ber of Local 55 remaining was a management representative-the foreman. The only evidence to which the Respondents point in support of this argument is the testimony of two of the officers of Local 55 that after the strike they protested both to company representatives and to International Representative Hullinghorst that they individually had not urged the men to strike. There is nothing to indicate that these officers, either at the union meeting or at any other time, disagreed with the unanimous decision of the members to strike if their economic demand were turned down. Nor does the court ruling in Harnischfeger Corporation call for a contrary con- clusion.5 In finding that the strikers there were not protected by the statute, the court expressly said: The record is barren of any evidence that the walk out was to enforce any demands by the membership, or that it was designed to exert pressure on the Company or to force correction of some grievances. The court went on to emphasize that the evidence indicated that the object of the striking employees was "to put heat on the bargaining committee of the Union." To the contrary, in the instant case the strike was expressly "to enforce demands by the membership," and to "exert pressure on the Company." Indeed it is clear that all of the members of Local 55 were in complete accord that if the Respondents did not give the saving letter the employees would not work. In sum, the simple facts are a union decision to bring economic pressure upon the Companies if an economic demand were not granted; request by the authorized representatives upon the employers for what the members sought; a flat rejection of the request by the Respondents; and implementation of the previous decision by the entire membership to strike. As there was no contract in effect, it follows that this was an economic strike, that the strikers named in the complaint were engaged in protected concerted activity within the meaning of the statute, and that, when they indicated their abandonment of the strike and asked for jobs, they were entitled to reinstatement from their last employer if they had not been replaced, and to employ- ment by any employer free of any discrimination based on such strike activity.6 The Return of the Strikers and Their Application for Employment Although the two Respondent Companies are completely separate employers, indeed competitors for contract work°in the Pascagoula shipyard, their dealings with Local 55 in the summer of 1958 joined them in a close community of interest in respect of their relations with the Union and their reaction to the strike in July of that year. They presented common demands to Local 55, intended to make a single contract covering all asbestos and insulation workers in the yard, and ended by asserting a single contract as a defense to the two complaints against them. The dispute which gave rise to the strike was as much a concern of Shook & Fletcher Com- pany as it was of the Badham Company. Moreover, the record as a whole shows that over the years as far back as about 1940, each of these Companies has carried on work in the Ingalls shipyard from time to time and that each of them has not only employed members of the same Local 55, but has also drawn personnel largely from the same group of employees. Virtually all the employees who were at work at the time of the strike had at one time or another, for varying periods, performed work for both Companies at this location. It also appears that the superintendents of the respective Companies, Strickland and Cunningham, kept an eye on the declining employee requirements of the opposite Company to satisfy the increasing need of employees on his own job. At times either Company might have as few as 1 or 2 employees; at other times the payroll of one Company would go as far as 100 or more. The work performed by each Company is essentially the same. Apparently because the need for employees varies as extensively as it does, and is not predictable at any season of the year but depends instead upon the size of the immediate contract and the coordination of its insulation work with that of other s Harnischfeger Corporation v N.L.R B, 207 F 2d 575 (CA. 7). 0 N L R B. v. Mackay Radio t Telegraph Co , 304 U S. 333. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contractors engaged in the construction of the same ship, there is no fixed method of hiring. The two hiring superintendents testified that they tried to remember who were the better skilled and the more reliable asbestos workers who had been em- ployed in prior seasons. They spoke variously of passing the work among em- ployees in the yard, to reach their friends, relatives, or others available. No written records of applicants were kept; it was all retained in the minds of the hiring fore- man-the skill, the experience, the records, and the general desirability of all the employees who have ever worked in the yards. As word spread that work was increasing it was not unusual for asbestos workers seeking employment to apply by telephoning the home or the office of the hiring foreman, or call him at the ship- yard to inquire. There does not appear to have been any fixed system of recall for laid-off employees. In sum, there appears a total picture comparable to the em- ployer-employee relationship in the construction industry generally. Indeed, in addition to working in the shipyard, these same employees also do "outside," or construction installation work, in many instances for the same Respondent Com- panies. In such a roving employer-employee relationship on a single-job basis, there can be and there was no determinable fixed method of application for employment. At the time of the strike, early in July 1958, Shook & Fletcher was doing the installation work on a large vessel called the Brazil, and the Badham Company, in a nearby dock, was similarly engaged on another large vessel called the Argentine. The work of Shook & Fletcher was virtually at its peak for the job; total employees in the week of the strike was about 135. The number tapered down immediately thereafter, dropping to 116 and 118 the 2 immediately following weeks, then to 110 and 112 the following 2 weeks, and thereafter successively falling weekly to 99, 94, 30, and then remained constant at about 30 throughout the remainder of the year. In contrast, the work of Badham on the Argentine was in its early stages in July. Thus, at the time of the strike, there were only 30 employees and the number re- mained at about that level until the latter part of August, when it began to rise slightly. On September 1 it reached 42 and continued to rise gradually thereafter until it approached 60 by the end of September and then climbed to over 90 by November 1. The record shows that on July 14, 15, and 16, the 3 days during which the con- certed work stoppage occurred, close to 90 employees of Shook & Fletcher absented themselves from work. Give or take some few who might have stayed away during these days for reasons unrelated to the labor dispute, these were essentially the strikers. The record also shows that within about 10 days, all but 30 of these had returned to work. The complaint against Respondent Shook & Fletcher names seven of its former employees as individual strikers who sought to return to the employment of Shook & Fletcher by abandoning the strike and were refused rein- statement. The uncontradicted and credible testimony of the yard superintendent of the Badham Company, who testified from company records, was that about 25 em- ployees of that Company went on strike on July 14 or 15. The record does not show which of these returned to work or when, but it does appear that at least some of them did return and were reinstated sometime after the strike. Of the eight employees named in the complaint against Badham, only one-C. P. Bosarge, Jr- had been in its employ at the time of the strike. The other seven had been work- ing for and struck against Shook & Fletcher, and assertedly were denied jobs by Badham because of their participation in the strike. Evidence of Application for Employment at Shook & Fletcher The events having occurred about 17 months before the hearing, understandably the testimony of individual complainants is not precise as to dates. Several of the charging employees related telephone conversations with management representa- tives at times which they could not fix exactly. It is clear, however, from the totality of the evidence, particularly in view of the testimony of Strickland, the yard superintendent, that on July 28. 2 weeks after the strike. a group of strikers- including the individuals named in the complaint-presented themselves at the yard gate to seek employment. Present were the following: Billy Griffin, Robert Griffin, Scovell. Hester, Kittrell. Wilson. and C. P. Bosarge, Jr. With them was Fritz Bre- land, who at the time of the strike had been a foreman, and who also wished to be employed. It was Breland who spoke on behalf of the group. He made it clear that the employees had abandoned their strike and wanted to return to work. He explained as clearly that he was speakine on behalf of the entire group. The appli- cants stood about and listened to Strickland's comments. There is some disagree- ment as to Strickland's statement at this point. Kittrell. Scovell Wilson, Griffin, Senior, Hester, and C. P. Bosarge quoted him as saying that "Hullinghorst said we SHOOK & FLETCHER INSULATION COMPANY 537 need not hire you and we are not going to." Breland testified that Strickland said Hullinghorst had told him he need not hire the strikers but he could hire street- walkers instead. In contrast, Strickland testified that all he told the employees was that Hullinghorst had told the Company it was not required to rehire the strikers if to do so meant that striker replacements must be released. Strickland also testified that he explained to the men that he did not need any more employees that day. On this point-whether Strickland in fact then said there were no job openings-some of the returning strikers did not comment in their testi- mony; others did not recall his having made such a statement. Wilson, one of the returning strikers, testified that Strickland "might also have said he was filled up." Breland, who acted as spokesman, frankly admitted that Strickland told him that day "Brother Strickland told us he didn't have need for us or couldn't use or couldn't hire us." In an affidavit given to a Board investigator before the hearing, Schmidt, a foreman discharged at the time of the strike and who was with this same group on July 28, said: ". . . he did say that he had all the men he needed." The records of Shook & Fletcher support its assertion that by July 28, when this group of strikers applied for work, a large number of the original strikers had already returned to work, and additional employees had been hired to replace the strikers in sufficient number to restore the total complement to approximately the number at the time of the strike. An intensive campaign was put on during the week or 10 days immediately' following the strike to obtain permit men or other asbestos workers, or even unskilled helpers from all sources. Between July 17 and July 25, 40 new employees started work. After July 28 and through August 6, seven more were placed on the payroll. Of these, three-Rand, Brown, Garner- started to work after July 28 but pursuant to direct hiring arrangements concluded with each of them during the week ending July 27. Ford, Lord, and Havens were hired as unskilled helpers who did no more than carry material. The returning strikers were card-carrying journeymen, whose rate of pay was considerably in excess of that paid helpers. Only Bosarge was a fourth year apprentice, and he did regular work and had been paid about 50 cents per hour more than the helper rate. The seventh person to be hired after July 28 was Adams, and he, on the basis of Strickland's uncontradicted and credible testimony, was hired because of special qualifications on a particular job. On July 14 when the strike started there were 135 employees; for the week ending July 29 there were 139. There were no further hirings through at least the beginning of the month of September; instead, work fell off and the complement was gradually reduced. I do not believe the record as a whole supports the General Counsel's assertion that Strickland refused to hire the returning strikers on July 28 because of their participation in the strike. Enough striker replacements had been hired to restore the original employee complement. In view of this fact, and the testimony of Wilson, Fritz Breland, and Schmidt, which corroborates that of Strickland, I also credit the latter's testimony that he told the entire returning group on July 28 that in no event was there any opening available. I do believe, as most of the strikers testified, that Strickland told them that he was relying upon Hullinghorst's advice and therefore believed he was not required to hire them and would not hire them. On Hullinghorst's own admission, when he arrived at the shipyard 2 days after the strike, he was determined to break the strike, to compel the employees to return, and to do everything possible to assist the Companies to find replacements for them. Clearly he was of the opinion, correctly or incorrectly, that the strikers had misbehaved. His strong language condemning them, therefore, and his urgings upon the company representatives that they take extreme measures to break the will of the strikers, undoubtedly implanted in the minds of the yard superintendents the justice of their cause, at least in replacing the strikers. If they also formed the opinion, in conse- quence of Hullinghorst's strong comments and their perhaps good-faith belief that the strike was in violation of a no-strike contract clause, understandably they may have formed the conviction that the strikers had removed themselves from any right to reinstatement, even in the absence of striker replacements holding their jobs at the moment. Whether or not Strickland was telling the applicants on July 28 that in no event would they be hired even at a later date, I cannot say flatly in the light of the factual situation at the moment. A number of the replacements then at work were permit men from other crafts, and other employees less skilled in the installation field. Strickland would normally use the regular card-carrying journeymen of Local 55 instead of such permit or unskilled workers. He was not. however, obligated to release the strike replacements at that point He could as well have understood, for all that the anplicants told him, that it was their desire to be put to work on their old jobs by having the strike replacements sent home. They were all card-carrying 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD journeymen, and there is no indication they were willing to acceput the much lower- paid helper or unskilled jobs. His statement-"I am not going to hire you"-can as logically be explained as an expression of intent not to release the strike replace- ments then and there. Certainly, I cannot find that Strickland in fact discriminated against them, as the complaint alleges, if only for the reason he had no work to give them at that time.? There is very little further evidence in the entire record respecting applications for reinstatement or employment with Shook & Fletcher by the strikers named in the complaint. Oden, president of Local 55, testified that about 7 weeks after the strike he and the business agent visited Enms, the vice president, in the office and spoke on behalf of those strikers who had not yet returned to work. Oden said he protested that the strikers had suffered sufficient punishment in consequence of the strike and should be taken back. According to Oden, Ennis replied ". . . that the men, as far as he was concerned, could work on the outside of the shipyard for there always seemed to have been trouble with this certain bunch of men." Oden also said at the hearing that Ennis might have said to him at that time that he (Ennis) was not hiring anyone in the yard then. There is also the testimony of C. M. Schmidt and Fritz Breland. The General Counsel stipulated at the hearing that both of these employees were supervisors within the meaning of the Act at the time of the strike when they chose to cease work. The Respondent Shook & Fletcher admits that it was opposed to participa- tion in the strike by these two of its supervisors Both men testified that in subsequent conversations with the yard superintendent they were told that because they had prejudiced the interest of their employer, they would not thereafter be reemployed. At the time of Oden's conversation with Ennis, of course, there were no openings available for applicants, and Shook & Fletcher's complement was regularly dwin- dling. The Company's reaction to the two supervisors' strike action is not illegal under the statute. It is true that on occasions some of the employees in this shipyard will work in supervisory positions and at others as rank and file. I cannot say, however, that once Schmidt and Breland had achieved supervisory status, their employer was not entitled to consider them as intended to continue such status. In the light of all the facts, I do not believe the foregoing testimony, even though undenied with respect to what Ennis is alleged to have said, suffices to establish the affirmative burden resting on the General Counsel that Shook & Fletcher in fact discriminated against the strikers named in the complaint . In conclusion, I will recommend dismissal of the complaint against Shook & Fletcher in its entirety. Application for Employment With the Badham Company The complaint against the Badham Company names eight employees who engaged in the July strike and were refused employment by this Respondent when they abandoned it. As detailed above, the employment situation with the Badham Com- pany was different during the few months following the strike than in the case of Shook & Fletcher . From a total complement of 30 employees on July 14, employ- ment with this Company rose continuously to 112 on November 6, 1958. It was during the intervening period that the individuals named in the complaint are alleged to have attempted to find employment with Badham. Of the eight employees in question, only one-C. P. Bosarge. Jr.-had been in Badham's employ on July 14; all the other seven had been Shook & Fletcher employ- ees on that day. It is alleged that Bosarge was denied reinstatement because of his strike activity and that the other seven were denied employment, when they applied for jobs, for the reason that they had carried on such concerted activity. C. P. Bosarge, Jr. As in insulation worker and member of Local 55 , Borsage was a 4-year improver (apprentice) at the time of the strike. The only evidence in the record relating to any application for reinstatement by him is his own testimony, in which he was com- pletely vague both as to the time of such application and as to what conversations took place in respect to it. He said that on one occasion after the strike he tele- 7 In October 1958, after the charges were filed in this case, Shook & Fletcher, through its vice president, submitted a statement of position to the National Labor Relations Board's Regional Office. While there is some indication in this statement that the Re- spondent deemed the strikers undesirable for reemployment because of their unannounced strike activity, it also says the July 28 mass application did not receive favorable action because the strikers had been replaced. I do not consider this statement, in its entirety, sufficiently probative of the essential complaint allegation of illegal motivation. SHOOK & FLETCHER INSULATION COMPANY 539 phoned Posey, the Badham yard foreman, at his home, but could not remember when. He said he asked for a job and that Posey replied he would see about it and call Bosarge back later. Bosarge also testified that sometime in July of 1959, Posey sent for him and gave him a job in the shipyard, and that after working a short period he quit voluntarily. I am unable to place this application for reinstatement at any specific date, and therefore cannot judge whether or not, at the time of Bosarge's telephone conver- sation with Posey, there were openings available, or the Badham Company was in fact either hiring or about to hire additional workmen. I think in the total circum- stances of this case, considering particularly the fact that Posey later called Bosarge to work in the yards, the affirmative burden resting upon the General Counsel to prove a specific request for reinstatement , availability of work, and refusal by the Respond- ent, has not been sustained. I will therefore recommend dismissal of the complaint as to Bosarge. R. E. Griffin, Sr., B. F. Scovell, and George R. Hester R. E. Griffin, Sr., is an oldtime member of Local 55; he worked for both Shook & Fletcher and Badham a number of times over a 20-year period. His last employ- ment for Badham covered a 5-month period ending February 22, 1957. At times, during the 1940's, he had also been general foreman for that Company. Scovell, also a journeyman member of Local 55, had worked for both Companies in the past; his last employment for Badham was for a 2-month period ending June 2, 1958. Hester, another regular card member of Local 55, had also worked for both Com- panies and his last employment for Badham was for a 3-month period ending June 2, 1958. There is no question raised as to the journeyman competence of Sco- vell and Hester. Posey suggested in his testimony that Griffin's age-he was 64 years old-was a factor in Badham's failure to employ him after the strike. No one ever told Griffin this. As indicated above, a number of the employees named in the complaint made passing reference to telephone conversations with Badham supervisory employees about going to work. Many of these bits of testimony are not clear, and the precise dates in many instances do not appear exactly. Withal, it is clear on the total record that Griffin, Senior, appeared twice at the Badham yard office seeking employment, and spoke with Posey each time. He first presented himself on September 2, 1958, the day after Labor Day. He was accompanied by Hester and Griffin's two sons, Robert and Billy, each of whom had never worked for the Badham Company. Grif- fin said to Posey: "Why can't we go to work, we have never left you," and, accord- ing to Griffin, Posey replied: "Mr. Hullinghorst said we don't have to hire any of you fellows that walked out and we are not going to hire you." There were five permit men standing about with Posey at the time, Posey gave applications to that other group, and in fact hired some of them then and there; he did not take on any- one in Griffin's group. Posey recalled that Griffin, Senior, and Hester were in his office that day and that each spoke to him and asked for work. He testified he told them he needed no one and that the group waiting to go to work had been told during the previous week to come in. He did not deny having quoted Hullinghorst's advice, as Griffin testified. The company records in evidence show Posey hired six men that morning, Posey said two were unskilled-George, a permit man, and Harris, a college boy. In explanation of the prima facie discrimination against Griffin and Hester, Posey said only that he had arranged the previous week to hire the six new employees. Aside from Posey's imprecise recollection on details as to how or when it had been arranged for the new men to report, there is no supporting testimony to verify his blanket assertion. Six days later, on September 8, Posey hired four more employees and a fifth on September 9. The total complement, which had stood at 36 before Sep- tember 2, continued to increase regularly and on September 29 Posey added still 4 more employees, so that by October 1 there was a total of 60 He continued to hire employees from time to time until, by the close of the workday on October 31, there were 89 employees. At no time during the month of September or October did Posey make any effort to communicate with Griffin, Senior, or Hester, despite the years'- old practice of looking to Local 55 for asbestos workers when needed, before hiring permit men. About 30 of the employees hired during the 2-month period were such permit men. Griffin, Senior, made a second application for work with Badham on November 3 and 4. He called at Posey's house on the evening of Monday, November 3, accom- panied by B F. Scovell. Speaking for both of them, Griffin asked for jobs. Ac- cording to Griffin's testimony, Posey replied that he must see Mr. Badham, who was in town, and Cunningham, the yard superintendent. Posey then asked the two men 51) DECISIONS OF NATIONAL LABOR RELATIONS BOARD to present themselves at the gate the next morning with their working tools. Still according to Griffin 's testimony, he and Scovell appeared at the yard gate the next morning, where they found 10 to 15 men waiting for jobs in the office . Posey told Griffin he had not yet seen Mr. Badham , and would call Griffin if the latter would go home and wait. Posey also distributed applications for employment to the large group of men who were waiting there. He did not call during the day as he had promised. Griffin continued his testimony that he and Scovell returned to Posey's home about 6 p.m . that evening and were told that Posey had not succeeded in seeing Mr. Badham. Posey told the 2 men he needed 25 more men the next day and that he wished to hire them both. Still according to Griffin, Posey then said he did not "understand Mr. Cunningham wanting to cut his nose off to spite his face." He asked the men to call at the gate again the next day . Griffin was back at the office the following morning, and he then saw three or four men waiting . Again Posey told him he had not seen Mr. Badham and again promised to advise Griffin by tele- phone. Griffin left and never heard from Posey again. Posey's version of these events varies somewhat from Griffin 's. He recalled the two employees coming to his home but said it was they who offered to come to the gate with their tools the next day. His testimony was he could not recall how Mr. Badham's name got into the conversation , but he admitted "I told them not to bring their tools but to let me talk to Mr. Badham first," and then explained he had done this to be rid of them . Posey went on to testify that because of the great need for men, he had called the Carpenters Local for help, and that a considerable number of carpenters, in overalls, appeared at the office the next morning, November 4, when Griffin and Scovell showed up. To Griffin , who stood by while the carpenters were being hired, Posey said : "Looks like we better buy vegetables , it looks like we got farmers." Posey conceded he had made do definite arrangements with the Carpen- ters Local on how many referrals he would accept as permit men.8 On Monday, November 3, Posey hired nine men , including one card mechanic, six permit men, and one improver. On Tuesday morning, when he sent Griffin and Scovell away, he added 13 more, 12 of them permit workers and 1 a mechanic . He said he did tell Griffin at that time he had attempted to talk to Badham during the day. Posey also said that when Griffin called again at his home the second evening, he "mieht" have told him he had not talked with Badham yet. The next day, with Griffin back at the hiring office, Posey ignored him again , and proceeded to hire five additional new employees ; he also hired three more on Thursday. In this same short period, Posey had occasion to release five men ; he discharged three on Tues- day and two more on Wednesday. I find Posey's testimony to the effect that he was firmly committed to hiring the six men he put on on September 2, when Griffin and other returning strikers were not accepted , of little probative value. He was vague and general on details as to precisely when, how, and through what individuals the advance arrangements had been made. Indeed, his entire testimony on the question of whether the less skilled men were simply hired in great numbers when they appeared at the office or whether in each instance a binding invitation had been extended days earlier , suffers from the same illusive and vague generality. Certainly the broadside appeal to the Car- penters Union early in November was anything but a firm arrangement of direct employment. I do not believe Posey's real reason for not hiring Griffin, Hester, and Scovell was that there were no job openings when they arrived. The record as a whole establishes quite convincingly that the Badham Company made it a rule, in its normal operations to look first for journeymen asbestos workers in the member- ship of Local 55 and to use card-carrying journeymen before resorting to permit men, be they members of other locals or lesser skilled craftsmen in other trades. There is no logical explanation for Posey 's failure to put on Griffin , Hester, and Scovell , who had worked for the Company in the past , at the very moment that he B On this item Posey 's testimony is as follows A. If I am not mistaken , we were in and out of the Ingalls that day and we were told we had better get some men and the only way we could think of getting that many men at one time was to call the carpenters hall and see if they had men available that had experience. Q Did you tell the carpenter people bow many men you wanted) A I probably told them about how many Q About how many did you tell them to send' A. I don't remember . He could have told me lie would send them to me until I had enough I don't think I gave him any specific number I needed quite a few men and he had to check some record to see if they had previous experience SHOOK & FLETCHER INSULATION COMPANY 541 was hiring a very high proportion of lesser skilled and therefore less desirable permit men. This aspect of the immediate situation is graphically highlighted by the very fact that he was compelled to discharge five employees during these very days that Griffin and Scovell were pressing for jobs. In such a situation, with people being discharged and more and more needed, Posey's resort to permit or lesser skilled men, and neglect of the expert skilled craftsmen whom he normally would want in the plant, acquires a very significant meaning. In these circumstances, I have no choice but to believe Griffin's testimony that Posey also told him he could not understand why Cunningham was cutting his nose to spite his face. I think on the total evidence that Posey failed to employ Griffin and Hester early in September and again Griffin and Scovell early in November because they had participated in the strike against Shook & Fletcher. The need for skilled employees was great. All three of them had worked for this Company in the past. Aside from Posey's unsupported reflection upon the skill and ability of Griffin and Scovell, there is no objective or recoid indication that the Company had found fault with them in their employment shortly before these events. Posey laughingly referred to the large group of employees he took on early in November as farmers; he told the returning strikers to obtain overalls. This was a candid recognition of the fact the Company was taking anyone it could get, and thereby ignoring the more desirable employees. Both Posey and his superior, Yard Superintendent Cunningham, ad- mitted that after the strike they prepared a list of employees who had gone on strike against Shook & Fletcher. Posey told Griffin that Hullinghorst had advised him he was not required to hire any of the people who had engaged in the strike. When Strickland, the Shook & Fletcher superintendent, voiced this same opinion to the re- turning strikers for that Company back on July 28, his remark could have well meant that that Company was not obligated to release striker replacements in order to take back the penitent former employees. I can place no such construction upon Posey's similar remark to Griffin the November following. He needed men, he was in the process of hiring men, he continued to do so. To say that he was not obligated to hire Griffin or his friends could only have meant that in his mind such persons were not deserving of hiring at all, because of their strike activity. I conclude, on the total record, that the Badham foreman, whose clear authority it was to hire workmen, refused to employ Griffin, Senior, Scovell, and Hester because they had engaged in a strike, a form of concerted activity which the statute clearly protects. His unlawful discrimination against them was a violation of Section 8(a) (1) and (3) of the Act for which the Respondent, Badham Insulation Company, Inc., must be held responsible. In reaching this conclusion, I am not unmindful of the fact that there is no evidence in this entire record of antipathy toward Local 55 or any Union in either Mr. Ennis, vice president of Shook & Fletcher, or Mr Bad- ham, of the Badham Company; nor, indeed, on the part of any of their subordinates. The Companies were inconvenienced by the strike, and, understandably, they thought it was unjustified. Just as the confusion as to what was tentatively proposed at the Battlehouse Hotel precludes any finding of a firm agreed contract, so it also makes plausible a belief by the Companies that there could be no lawful strike. I have no reason to question the good faith of the higher company officials. To these facts must be added Hullinghorst's repeated protestations to the Companies that the strikers had broken the law, that they deserved to be punished, and that the Com- panies had a right not to take them back. In fact, Posey only parroted Hullinghorst when he told Griffin that because of the international representative's assurance the strikers need not be hired. If, in the total circumstances, the Respondents, particu- larly Cunningham and Posey, concluded that the strikers had outlawed themselves from the shipyard, the conclusion, in inexpert minds, was not an extraordinary thing. However, even assuming the likely possibility that the Respondents had been misled by Hullinghorst, the statutory rights of the striker-applicants to be free of such discrimination remained unimpaired. A mistaken belief by the Respondent, if such it was, cannot excuse a discrimination in employment which in fact violates the pro- scription of the statute.9 L. C. Kittrell Kittrell last worked for the Badham Company in 1955. The only record evidence of his having applied for a job at Badham after the July strike is his testimony that about 2 or 3 months later he telephoned Foreman Posey at home and asked for a job. Kittrell's earlier affidavit shows this call was made on September 28, a Sunday. Kittrell said Posey promised to call him back but never did so. He denied any statement by Posey that no jobs were available and that Posey did not need anyone 9 Hill & Hill Truck Line, Inc., 120 NLRB 101. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then. Against this testimony, Posey recalled that Kittrell did call him and may have asked about a job, he did not recall the date. Posey's testimony was to the effect that at the time Kittrell called him he was not hiring any men. On Monday, September 29, Posey hired four men; as to these, he simply said he had arranged by telephone and through their friends already working in the yard sometime during the preceding week that they were to report for work. In all the limited evidence applicable to Kittrell, I do not believe the General Counsel has satisfied the affirmative burden of proving that Kittrell made sufficient application for work and was refused employment by Posey because of his participation in the strike against Shook & Fletcher. I think something more was required of him in the form of a direct application than a Sunday night telephone call to the foreman at home. Posey became the hiring foreman after 1955, when Kittrell last worked for the Badham Company in the yard. There is nothing to indicate that he connected Kitrell either with former employment with his Company or perhaps even with the strike. While Posey's testimony about the earlier arrangement to take on the four people who appeared at the gate Monday morning, September 29, is as unsupported as his other testimony about such random hiring during that general period, in this instance I simply do not think there are enough definitive and concrete facts to support an inference of deliberate unlawful discrimination against Kittrell. I shall therefore recommend dismissal of the complaint as to him. Robert A. Griffin and Billy A. Griffin These two men never worked for the Badham Company. They did not appear at the hearing to testify in support of the charges they filed against that Company. All that appears as to them is that they accompanied their father on the day after Labor Day when Griffin, Senior, and Hester, both previously employees of the Badham Company, sought work. There were other persons then present to whom the Company was distributing applications for employment. Neither of the two sons ever spoke up. Indeed, I doubt I could find, on the evidence before me, that Griffin, Senior, made clear to Foreman Posey at that time that he was speaking on behalf of his two sons as well as on behalf of Hester; he did not say so to Posey in so many words. I can only conclude that the totality of the evidence does not suffice to prove the factual assertion of the complaint that these two boys applied for work and were refused by the Company. I shall therefore recommend dismissal of the complaint with respect to both Robert A. Griffin and Billy A. Griffin. J. M. Schmidt Schmidt worked for Shook & Fletcher for 7 or 8 years before the time of the strike. The General Counsel and the Respondents stipulated that during his last em- ployment, about July 14, he was a supervisor within the meaning of the statute. The attorney for the Charging Parties refused to so agree, but he offered no sub- stantial evidence to contradict the stipulation. Schmidt testified that he once worked also for the Badham Company, but he did not say when. Evidence relative to his application for employment with the latter Company is very meager. He testified that he called Posey at home several times about 7 weeks after the strike-"about September or October"; and that "He told me he could use me in two or three weeks and I waited two or three weeks and I never did seek employment with Badham Insu- lation Company." On cross-examination he admitted that Posey told him when he called that he, Posey, did not need any men at the time. Posey recalled that Schmidt did call him once and said that he was passing through Pascagoula, and needed a job and wished to be taken on as a pusher. Posey said he answered Schmidt by saying he did not need any men then but that Schmidt might get in touch with him at a later date. I shall recommend dismissal of the complaint as to Schmidt because I do not deem the foregoing evidence sufficient to support the allegation that he was denied em- ployment by the Badham Company for discriminatory reasons. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Badham set forth in section III, above, occurring in connection with the operations of said Respondent 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 com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent Badham has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 543 affirmative action designed to effectuate the policies of the Act. Having found that the Respondent Badham discriminated against R . E. Griffin, Sr., George R. Hester, and B. F. Scovell with respect to their hire and tenure of employment , I will recom- mend that it be ordered to offer them immediate employment as journeymen as- bestos or insulation workers, displacing , if necessary, any persons so employed after September 2, 1958, in the case of R. E. Griffin, Sr., and George R. Hester, and after November 4, 1958, in the case of B. F. Scovell, and if no such employment is now available, as soon as it becomes available in the Pascagoula , Mississippi, shipyard. I shall also recommend that Respondent Badham be ordered to make them whole for any loss of earnings they may have suffered because of the discrimination against them, by payment of a sum of money equal to the amount they normally would have earned as wages from the date of the discrimination against them to the date of the offer of employment, less their net earnings during said period , with backpiy com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that the Respondent Badham make available to the Board , upon request, payroll and other records to facilitate the determination of the amount due under this recommended remedy. In view of the nature of the unfair labor practices found in this proceeding, the commission of similar and other unfair labor practices reasonably may be antici- pated. I shall therefore recommend that the Respondent Badham be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its 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. The Respondent Badham Insulation Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By refusing to employ R. E. Griffin, Sr., on September 2 and November 4, 1958, B. F. Scovell on November 4, 1958, and George R. Hester on September 2, 1958, the Respondent Badham has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct the Respondent Badham has interfered with, re- strained, and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. 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.] Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees Union , AFL-CIO; and Waiters and Waitresses, Dining Room Employees Local 1, Hotel and Res- taurant Employees Union, AFL-CIO and Stork Restaurant, Inc. Case No. 93-CP-12. February 20, 1961 DECISION AND ORDER On April 15, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party, Stork Restaurant, Inc., herein called Stork, filed exceptions to the Intermediate Report and supporting briefs; and the Respondents filed a brief in support of the Intermediate Report. On September 8, 1960, 130 NLRB No. 67.