Northern Virginia Steel Corp.

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that Respondent discriminated in regard to the hire and tenure of employment of Herman Knoll by discharging him on April 7, 1960, the Trial Ex- aminer will recommend that the Respondent offer him immediate and full reinstate- ment to his former or substantially equivalent position , without prejudices to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of said discrimination by payment to him of a sum of money equal to that which he would have earned as wages from the date of the offer of reinstatement less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. Since the violations of the Act which the Respondent committed are related to other unfair labor practices proscribed by the Act, and the danger of their, commission in the future is reasonably to be anticipated from its past conduct , the preventive purpose of the Act may be thwarted unless the recommendations are coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaran- teed employees by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding , I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Herman Knoll, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent 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 within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not refused to bargain with the Union in violation of Section 8(a)(5) of the Act. [Recommendations omitted from publication.] Northern Virginia Steel Corporation and Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case No. 5-CA-1587. August 4, 1961 DECISION AND ORDER On October 10, 1960, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed a motion to remand the proceeding to the Trial Examiner,' and the General Counsel and the Respondent filed exceptions to the Inter- mediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at 1On December 7, 1960, the Board's Executive Secretary notified the Respondent by letter that its motion would be considered by the Board along with the entire record in the proceeding. 132 NLRB No. 50. NORTHERN VIRGINIA STEEL CORPORATION 715 the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's motion, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the fol- lowing modifications. 1. The Trial Examiner found that E. B. Combs was a supervisor within the meaning of the Act. We do not agree with this finding. Combs worked with a crew of from two to eight welders. He was handed blueprints for particular projects by the shop superintendent and, in following the blueprints, he performed manual work along with the rest of the crew. The personnel of the crew changed fre- quently and assignments to the crew were made by the shop superin- tendent with Combs playing no part in the selections. Combs could not himself hire or fire employees and any recommendations he made in that regard were subjected to review by superior authority. Unlike Night Supervisor Pence, there is no indication in the record that Combs ever granted employees time off the job. While the Trial Examiner found that Combs was salaried, as dis- tinguished from other employees, and that he was expected to work overtime without additional compensation, we are not persuaded that this constitutes sufficient indicia, of supervisory status in an overall appraisal of Comb's duties. Moreover, we note that at no time during this proceeding, before the Intermediate Report was issued, did the Respondent contend that Combs was a supervisor, nor was his status placed in issue. In point of fact, during the hearing herein, the Re- spondent affirmatively indicated that it considered Combs to be within the bargaining unit and not among its supervisory personnel. We find, in agreement with the General Counsel's contentions, that Combs was not a supervisor, but at most was a leadman or gang leader who was more experienced and skilled than the other members of the crew. We further find that the discharge of Combs, based upon the evidence and reasons found by the Trial Examiner, was violative of Section 8 (a) (3) and (1) of the Act.' 2. The Trial Examiner found that the Respondent violated Section .8 (a) (5) of the Act on July 2, 1959, when its secretary-treasurer, Hengen, failed to call at the post office for the Union's certified letter requesting recognition, as fully set forth in the Intermediate Report. 'The Respondent 's request for oral argument is denied as the record, including the exceptions and briefs , adequately present the issues and positions of the parties 11 In view of the fact that we find Combs not to be a supervisor , we do not adopt or pass upon the Trial Examiner's holding that the discharge of a supervisor under these circum- stances is violative of Section 8(a) (1) of the Act Nor do we find it necessary to con- sider the Respondent's contention that the organizational activities such as engaged in by Combs would taint a union's majority status if engaged in by a supervisor See Insular Chemical Corporation and Rubber Corporation of America ( Insular Division), 128 NLRB 93 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In finding'the Respondent's bad faith in failing to claim- the letter, the Trial Examiner imputed to the Respondent Pence's knowledge of the contents of the letter and of the Union's majority status. The Re- spondent attacks this finding of the Trial Examiner in its motion to remand 4 We find it unnecessary to predicate our finding of a violation based upon Hengen's failure to call for the letter in view of the fact that the Union's attorney made a clear telephonic request for recogni- tion to Hengen on July 3, 1959. Thereafter, the Respondent engaged in a course of conduct indicative of a bad-faith approach to its duty and obligation to meet and bargain with the Union, as found by the Trial Examiner. We find, therefore, that the Respondent violated Section 8(a) (5) of the Act on and after July 3, 1959. ORDER Upon the basis of 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, Northern Virginia Steel Corporation, Springfield, Virginia, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other conditions of employment, with Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representative of its 'employees in an appropriate unit of production, maintenance, and warehousing employees, exclusive of professional, office, clerical, and custodial employees, guards, and supervisors as defined in the Act. (b) Discouraging membership in Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, or any other labor organization, of its employees, by discharging employees or refusing to reinstate them, or in any other manner discriminating against them in 'regard to their hire or tenure of employment or any other term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named or any 4 The substance of the Respondent's motion and Pence's supporting affidavit is that while he had knowledge of the concerted activities in the plant and the extent thereof, he -did not convey this knowledge to any other person in the management level of the Respondent and that the officers of the Respondent were not aware that the Union's certified letter contained a request for recognition Since we do not rely upon this letter In fixing the date of the violation , we do not find it necessary to consider the merits of ,Respondent's motion, nor do we find it necessary to consider whether Pence's knowledge at that time is chargeable directly to the Respondent solely by virtue of his supervisory status. Consequently , the Respondent' s motion is dismissed. NORTHERN VIRGINIA STEEL CORPORATION 717 other labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or 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) Upon request, bargain collectively with Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive represen- tative of all employees in an appropriate unit, concerning rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Offer E. B. Combs, Denver Colley, Preston N. Hippeard, Charles D. Lingafelt, and Arnold R. Taylor immediate and full re- instatement to their former or substantially equivalent positions, with- out prejudice to their seniority and other rights and privileges previ- ously enjoyed, and make each of them whole for any loss of earnings suffered by reason of his discharge or discrimination against him, in the manner set forth in the section in the Intermediate Report en- titled "The Remedy." (c) Upon their timely and unconditional application for reinstate- ment, offer to the unfair labor practice strikers listed below in this paragraph, immediate and full reinstatement to their former or sub- stantially equivalent.positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any individual hired on or after July 3, 1959, or if employment is not available, place such employees on a preferential hiring list, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," and make such employees whole for any loss of earnings suffered by reason of the Respondent's refusal or failure to reinstate them or to give them preferential hiring status as set forth in the section entitled "The Remedy." These unfair labor practice strikers are : D. C. Allison H. R. Hizer J. M. Patrick David Bohlman J. E. Jones T. D. Rutherford D. C. Connor T. R. Justice B. R. Sanders R. E. Devine A. D. Keesucker H. L. Scott P. C. Dotson Eugene Kelly Charles Sirovy T. L. Dotson J. C. Lyle J. C. Sliger Leroy Frazier James Mullins M. N. Tighe H. J. Halsey K. B. Mullins C. M. Williams M. S. Halsey A. J. Moses B. C. Bates S. J. Halsey H. S. Moses C. J. Halstead C. L. Northcutt (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of reinstatement under the terms of this Order. (e) Post at its plant at Springfield, Virginia, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 6 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, as the ex- clusive representative of all our employees in an appropriate unit of production, maintenance, and warehousing employees, exclu- sive of professional, office, clerical, and custodial employees, guards, and supervisors as defined in the Act. WE WILL NOT discourage membership in Shopmen's Local Union No. 486 of the International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organi- zation, by discharging employees or refusing to reinstate them, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights of self- organization, to form, join, or assist Shopmen',s Local No. 486 of NORTHERN VIRGINIA STEEL CORPORATION 719 the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, or any other labor organization, to bargain collectively 'through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL, upon request, bargain concerning rates of pay, wages, hours of employment, or other conditions of employment with Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representative of all of our employees in an ap- propriate unit of production, maintenance, and warehousing em- ployees, excluding professional, office, clerical, and custodial employees, guards, and supervisors as defined in the Act, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL offer E. B. Combs, Denver Colley, Preston N. Hip- peard, Charles D. Lingafelt, and Arnold R. Taylor immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL offer to the unfair labor practice strikers listed below, upon their timely and unconditional application for reinstate- ment, immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, dismissing, if necessary, any individual hired after July 3, 1959. If after such dismissal, sufficient positions are not available, we will place these unfair labor practice strikers on a preferential hiring list; and we will make such employees whole for any loss of earnings suffered by them by reason of our refusal or failure to reinstate them or to give them preferential hiring status. These unfair labor practice strikers are: D. C. Allison David Bohlman D. C. Connor R. E. Devine P. C. Dotson T. L. Dotson Leroy Frazier H. J. Halsey Al. S. Halsey S. J. Halsey C. J. Halstead H. R. Hizer J. E. Jones J. C. Lyle James Mullins K. B. Mullins A. J. Moses H. S. Moses C. L. Northcutt J. M. Patrick T. D. Rutherford B. R. Sanders H. L. Scott Charles Sirovy J. C. Sliger M. N. Tighe 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T. R. Justice C. M. Williams A. D. Keesucker B. C. Bates Eugene Kelly All our employees are free to become or remain, or refrain from be- coming or remaining, members of Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization. NORTHERN VIRGINIA STEEL CORPORATION, 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 STATEMENT OF THE CASE Case No. 5-CA-1587 was brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519), herein called the Act, on a charge filed on February 9, 1959, and an amended charge filed on August 21, 1959, by Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO , herein called the Union. The case was heard before the duly designated Trial Examiner during the period Decem- ber 8 through 16, 1959, in Washington , D.C., on a complaint of the General Counsel issued September 10, 1959, and answer of Northern Virginia Steel Corporation, herein called Respondent , dated September 17, 1959. The complaint alleges, and Respondent's answer denies , that Respondent, since July 1 , 1959, refused to bargain collectively in good faith with the Union , in violation of Section 8(a) (5) and ( 1) of the Act, and discharged one employee on July 2, 1959, and four employees on July 3, 1959, because they aided and assisted the Union and because they were sympathetic to or affiliated with the Union , in violation of Section 8(a),(3) and ( 1) of the Act, and by the alleged refusal to bargain and the discrimina- tory discharges caused a prolonged strike among its employees beginning on July 3, 1959. Respondent, General Counsel, and the Charging Party were represented at the hearing, and all parties were afforded an opportunity to be heard , to introduce relevant evidence, to present oral argument, and to file briefs. Counsel for the parties waived oral argument, but counsel for the General Counsel and Respondent filed briefs after the hearing. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT General Counsel alleged in its complaint that Respondent was a Delaware corpo- ration with principal office and place of business at Springfield , Virginia; that it was engaged in the fabrication , processing, and sale of steel joists and related items; that during the period from September 10, 1958, to September 10, 1959, it sold and shipped products with a value in excess of $100,000, from its Springfield , Virginia, plant directly to customers at points outside the Commonwealth of Virginia; and that during the same period , Respondent purchased materials and supplies which were shipped from points outside the Commonwealth of Virginia directly to Re- spondent's plant at Springfield, Virginia. General Counsel further alleged that Respondent at all times material was engaged in commerce within the meaning of Section 2(6) of the Act. Respondent in its answer admitted each of these allega- tions. I find that Respondent is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The'Union is a labor organization within the meaning of Section 2(5) of the Act. NORTHERN VIRGINIA STEEL CORPORATION 721 III. THE UNFAIR LABOR PRACTICES A. Preliminary matters At the beginning of organizational activity by the Union on or about June 20, 1959, and particularly on June 30 and July 1, 1959, Respondent employed approxi- mately 50 persons in addition'to supervisory, professional, clerical, and custodial personnel. Twenty-two of the fifty were welders and eight were laborers. The remaining 20 were made up of operators of a punchpress, and shearing, bending, and ripping machines, a crane operator, setup and layout men, a truckdriver, painters, and a timekeeper.' General Counsel alleged in the complaint that an appropriate unit of Respondent's employees for the purposes of collective bargaining consisted of a unit of Respond- ent's production, maintenance, and warehousing employees, excluding office clerical employees, guards, watchmen, professional employees, and supervisors. Respondent admitted in its answer that the unit alleged by General Counsel as appropriate was appropriate for purposes of collective bargaining. This unit would include the 50 employees described above and exclude the corporate officers of Respondent, a gen- eral manager, comptroller, office clerical, purchasing agent, yard superintendent, shop superintendent, assistant shop superintendent, estimators, draftsmen, salesmen, watchmen, repairmen, and gang leaders. The gang leaders at the beginning of the organizational activity on June 20, 1959, and during the times material to this proceeding were E. B. Combs and Charles A. Pence. Combs was a foreman in charge of the fabrication on the day shift of straight and long-span steel shapes. He was handed the blueprints for an assignment or particular job by Shop Superintendent Webster Corbett. Combs then laid out the project and responsibly directed an average of six to eight employees in the setting up of the jig on which the particular item would be fabricated, as well as the actual fabrication of the item on the jig. The employees would look to him for direction. Shop Superintendent Corbett looked to Combs for the laying out of the project pur- suant to the plans, the setting up of the jig, and the actual fabrication of the particu- lar steel shape called for by the plans. Combs received a weekly salary rather than a wage, and ate 'his lunch when he so desired with professional and supervisory personnel in the main office of Respondent. He could recommend hirings and firings but could not hire or fire .2 Pence was the gang leader of the 11- or 12-man crew on the night shift that handled the standard joist work that Futrell's crew handled on the day shift. With respect to this crew, he had the same duties Combs had on the day shift. There was an additional crew on the night shift that handled the long-span work that the crew under Combs handled on the day shift. Corbett testified that he himself laid out the work for this night-shift crew and that it was largely on its own .3 However, he admitted that Pence had the duty of seeing that the men doing the long-span work were working. He checked them at the location where they were working. He made out production reports not only for his standard joist crew but also for the long-span crew. He occupied the office that Corbett used during the day. Like i Miaermobile Manufaoturer8, Inc., 119 NLRB 1617. 2 The other crew of substantial size on the day shift was one which handled the work of fabricating standard joists. Walter Futrell, Jr., assistant shop superintendent, was in charge of this crew. Like Combs he could recommend hirings or firings but could not hire or fire The day-shift crews made up 30 of the 50 employees. Some of the 30 were engaged on the day shift in operating machines and other work in the preparing of mate- rials and subassemblies for the fabrication of the steel shapes both on the day and night shifts As stated above, these machines were ripping, shearing, and bending machines and a punchpress. Some of the 30 were also employed in the yard in the moving to or from storage, and in the storage of steel beams and other items used in the fabrication of the steel products, and also the moving and storage of Respondent's finished products. Futrell was in charge of the work of preparing materials for fabrication. Joseph A. Dillon, in addition to being puicliasing agent, was in chaige of the movement and storage of materials and finished products in the yard 8 The day shift ended its day at 3 p.m. The night shift worked from 3 p in. to 11 .30 p in with a half hour off for lunch at 7 p in. According to Corbett, he remained at the plant until anywhere from 5 to 6 p in. Futrell also testified that he was there a good part of the time until 6 p.m. E. Carl Hengen, secretary-treasurer and executive head of Respond- ent, testified that he was In the plant 2 evenings a week, but that he exercised no direct supervision over employees, that he gave orders only to James 0. Baxter, the general manager, and that all plant work was supervised by Corbett who received his orders from Baxter. 722 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD Combs, he received a weekly salary instead of a wage, and could recommend hirings and firings but could not hire or fire . When a union meeting was held on the evening of July 1 , 1960, he permitted Teddy R. Justice, a night-shift employee, to attend the meeting on behalf of the night-shift employees . They had asked Pence that he permit Justice to attend the meeting. Pence excused him from returning to work , took care of the punching of his timecard , and did not "dock" his wages for the time spent at the union meeting. On the witness stand , Pence identified himself as "supervisor of the night shift." From this evidence , I find Combs and Pence to be supervisors within the meaning of Section 2(11) of the Act .4 I also find at this time that the unit alleged by General Counsel as appropriate for purposes of collective bargaining , and admitted by Respondent as appropriate for purposes of collective bargaining , to be an appropri- ate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act .5 B. The Union's organizational activity , notice of majority representation, and request for recognition and collective bargaining On or about June 20, 1959, John B . Gruse, business representative of the Union, gave Supervisor Combs a number of union cards which contained the statement thereon that the signatory designated the Union to act as his collective -bargaining representative.6 Combs at this time was president of the Union . He had held this position since on or about January 1, 1957. Combs gave some of the union authori- zation cards to Supervisor Pence and certain employees. Pence distributed four of the cards he received from Combs to Kenneth B. and James H. Mullins, H. L. Scott, and Bobby C. Yates, night-shift employees. They signed the cards. Pence did not sign a card or collect any signed cards. Thirty-six of the employees in the appropri- ate unit signed authorization cards during the period of June 24 to 27 , 1959. Combs gave the 36 authorization cards to Gruse during the period of June 24 to 27, 1959.7 On July 1, 1959, about 2 p.m., Business Representative Gruse sent a letter by certified mail to Respondent at its address of 7400 Reservoir Road, Springfield, Virginia. The letter was on the Union's letterhead, and was signed for the Union by Gruse as its business agent. In addition to the Union's name, the letterhead contained the Union's address of 829 Gallatin Street, N.W., Washington 11, D.C. The letter was dated July 1, 1959. In the body of the letter, the Union notified the Respondent that a majority of its production , maintenance , and warehousing em- ployees had selected the Union as their collective-bargaining representative, and requested Respondent to recognize it as the collective -bargaining representative of its employees, and to meet with representatives of the Union for the purpose of collective bargaining.8 The envelope bore the name and address of the Union in the upper left hand corner, as well as the name and address of the Respondent. The certified mail number, "No. 362004," was affixed to the envelope. The Union called a meeting in Alexandria for 8 o'clock in the evening of July 1, 1959. Combs gave notice of the meeting to Respondent's employees. As previously stated, the night shift was represented at the meeting by Teddy Justice. About 25 of the day-shift employees attended. Combs read to the employees present a copy of the letter the Union sent on the afternoon of July 1, 1959, to Respondent, in which it was notified of the majority representation by the Union, and requested it to recognize the Union and bargain with it as a collective-bargaining representative. Business Representative Gruse discussed proposed bargaining proposals with the employees, and the employees elected stewards and committeemen, and voted unanimously to walk out on strike if anyone was fired in connection with the union activity. Twenty- See Geilich Tanning Company, 128 NLRB 501 ( Supplemental Decision and Order) ; Edward Aaron Corporation, 125 NLRB 840 ; The Texas Pipe Line Company, 125 NLRB 837. 5 Beaumont Forging Company, 110 NLRB 2200 6 These cards are hereinafter referred to as union authorization cards 4 Thirty-seven signed union authorization cards were received in evidence , but the card of employee Garland S . Jones was not signed until July 7 81 find at this time that on June 30 and July 1, 1959 , the Union represented 38 em- ployees of the 50 employees in the appropriate unit, and, therefore, represented a majority of the employees in this unit on July 1, 1959, when the Union mailed to Respondent the letter containing the statement that it represented a majority and the request for recog- nition and collective-bargaining negotiations . I have included employees Cantrell and Sanders in the group that designated the Union to represent them since, although they did not sign union authorization cards, they did sign union membership applications on July 1, 1960, as found anfra. In any event, the 36 employees who signed union authoriza- tion cards constituted a majority of the 50 employees in the appropriate unit. NORTHERN VIRGINIA STEEL CORPORATION 723 three of the employees present signed applications for membership in the Union. They did not fill in the blanks with the information the application form requested. I credit Comb's testimony that as president of the Union, he told the assembled em- ployees that they did not have to fill in the blanks. Employees Albert W. Cantrell and B. R. Sanders, who had not signed authorization cards, were among the 23 signing the membership application forms. The other 21, including Teddy Justice from the night shift, had signed union authorization cards. Teddy Justice returned to Respondent's plant about 11 p.m., while the night shift was still working. He waited outside the plant for Palmer Dotson who rode with him. When Pence came out after the end of the shift, Justice told him what occurred at the meeting. He said to Pence that Combs read a copy of the Union's July 1, 1959, letter to Respondent requesting recognition and collective bargaining, that Gruse read a copy of the proposed collective-bargaining contract, and that the employees present at the meeting elected committeemen and stewards, and voted to strike if anyone was fired in connection with the union activity.9 About 7 p.m. on July 1, Pence approached Kenneth B. Mullins on the night shift and said to him that he was sending Justice to the union meeting as the men had selected him as the best man to send, and that Justice may not be back that evening. He then asked Mullins to stick by him, that he was going to stick with Respondent. On July 2, 1959, about 11 a.m., David J. Hardy, the regular mail carrier for the area in Springfield, Virginia, in which Respondent's plant was located, appeared with the daily mail. The usual delivery time was 11 a.m. As was the custom, he delivered the regular mail to Broders B. Moore, the comptroller. At this time he also handed Moore the certified letter to Respondent that the Union had mailed the previous day. Moore called General Manager Baxter. They conferred about the letter, and accord- ing to Hardy, both handled the letter and looked at and saw its face with the name and address of the Union in the upper left-hand corner. Moore and Baxter deny having seen the name and address of the Union in the left-hand corner. Baxter told Hardy that he could not receive the letter. Respondent's policy was that only its officers could receive registered or certified mail.1° Since President Steinberg and Vice President Hildeen were not connected with the operation of the business, Secretary- Treasurer Hengen was the only person who could receive registered mail. Letter Carrier Hardy did not leave a pickup slip for Hengen with Moore or Baxter as he did on two prior occasions when he sought to deliver registered mail and Hengen was not available. He could not account for his failure to leave a pickup slip. He brought the letter back to the Springfield Post Office. The post office returned it to the Union in the mail the Union received on July 3, 1959, at its address in Washington, D.C. A stamp listing the usual reasons for nondelivery was stamped on the face of the envelope with the reason "refused" checked off. On July 2, 1959, Hengen appeared in the main office of Respondent about 1 p.m. and was in Respondent's plant between 2 and 2:30 p.m. He never called at the Springfield Post Office for the certified letter as he did in the case of the two prior registered letters. I find at this time that both Moore and Baxter saw the name and address of the Union in the upper left-hand corner of the envelope containing the Union's letter, as the name and address of the sender of the letter, and recognized that a letter from the Union was contained in the envelope. I further find that Baxter and Moore were aware of the contents of the letter at the time it was refused by reason of Supervisor Pence's conversation with Justice the prior evening. I further find that Baxter or Moore acquainted Hengen, when he appeared at the office at 1 p.m., with the presen- tation to Moore of the Union's certified letter by Letter Carrier Hardy, and its refusal by Baxter. And I find that Hengen knew at that time that the letter was a notice of majority representation and a request for recognition and collective bargaining by the Union.li I have reached the finding that Baxter and Moore knew that the letter was from the 9 These evidentiary findings are premised on Justice's testimony Pence admitted talk- ing with night-shift employees about the union activity prior to the walkout. He was asked on cross-examination if he talked to Kenneth B. Mullins, an employee on the night shift, and he answered, "Yes " He was not asked either on direct or cross-examination if he talked to Justice outside the plant after the union meeting on the evening of July 1. Justice's testimony was unrebutted. 1O Bernard Steinberg and Roger Hildeen were president and vice president, respectively. They did not participate in the operation of the business. As previously stated, Secretary- Treasurer Hengen was the operating head. "Nothing had intervened that would change the status of the Union as designated collective-bargaining representative. _ 614913-62-vol. 132-47 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union by reason of Letter Carrier Hardy's testimony that both Baxter and Moore handled the envelope with the letter therein and looked at the face of it. In these cir- cumstances, they could not have avoided seeing the name and address of the Union since it was prominently and clearly displayed in the upper left corner of the envelope. This is the place where a sender 's name and address are customarily placed on a business envelope. I believe it reasonable to infer, and so find, that Baxter or Moore told Hengen when he appeared at Respondent 's office at or about 1 p.m. on July 2 that a certified letter from the Union to Respondent had been handed to Moore by Letter Carrier Hardy, but was refused by Baxter upon being consulted by Moore, and that Baxter told Hardy that he could not receive certified mail. Moore's duties with respect to the receiving of mail and Baxter's duty of seeing that the business of Respondent was run efficiently , required the disclosure of this incident to Hengen, the only one authorized to receive either certified or registered mail. I have found that Baxter and Hengen knew of the contents of the letter when they were made aware of the letter, by reason of the identification of the Union on the face of the envelope, and the knowledge Pence obtained from Justice the prior evening of what transpired at the union meeting earlier in the evening . I have charged Re- spondent and its officials other than Pence with Pence's knowledge not only because Pence was a supervisor , and Hengen, contrary to what an official of a company would do when informed that the post office was holding a certified letter for his company, and contrary to what he did on two prior occasions in the case of registered mail, failed to call at the post office for it, but also because of evidence of Pence's efforts on July 1 and 2 to persuade employees to abandon the Union , and his dis- closures on July 2 to employees of what Hengen had said to him in opposition to the Union.12 This evidence shows that Pence was so positively concerned with being on what he considered to be management's side that he would transmit promptly to his su- periors, Corbert, Baxter, and Hengen, the disclosures of the Union 's activity with respect to organization , and notice of majority representation, and request for bar- gaining, that were contained in Justice's statement to him in the evening of July 1 of what occured at the union meeting. There is Pence's statement at or about 7 p.m. on July 1, 1959, to Kenneth Mullins that he was sticking with Respondent , and his asking Mullins that he stick with him, and Pence 's statement to Mullins on the night shift of July 2 , 1959, that "the round man [Hengen ]" said to him that he would sell his equipment and auction off the steel before he would let the Union in. Mullins testified that Pence made the statement to him on July 2 shortly after he saw Pence conferring with Baxter and Hengen in the plant during the night-shift operations on July 2. And there is Pence's statement he made in the same evening to night-shift employee Henry Lee Scott that the Union would never get in , that Hengen said to him he could sell his steel for double the price he paid for it with the steel strike coming on, and his advice to Scott that he should back out of the Union and stay with the Company as jobs were hard to get. During that same evening, he also said to Bobby Yates, another night-shift employee, that he wanted him to stick with him and the Company, that "the big man [Hengen] " would close the place before he went Union.13 C. The discharges The allegation regarding discharges incumbent on General Counsel to prove by a preponderance of the evidence is that Respondent discriminatorily discharged Supervisor E. B. Combs on July 2, 1059, and employees Charles D. Lingafelt, Den- ver Colley, Preston Naimon Hippeard, and Arnold R . Taylor on July 3, 1959, be- cause they were affiliated with or sympathetic to the Union. 1. The discharge of Combs On Thursday, July 2, 1959, shortly after 3 p.m., quitting time for the day shift, Superintendent Corbett informed Supervisor Combs that he was discharged. Cor- bett paid Combs the salary due him for the payroll period ending Tuesday, June 30, with one check and for July 1 and 2 with a separate check. Combs' testimony, 12 Conduct under scrutiny may be evaluated in the light of subsequent event sas well as prior and contemporary events. F.T C v. Cement Institute, 333 U.S. 683, 704-705. 13I have credited Mullins', Scott' s, and Yates' testimony with respect to these incidents Pence admitted he talked to rank-and -file employees both before and after the walkout on July 3, 1959 He could not recall talking to any executive personnel until after the walkout. While Hengen could not recall talking to Pence, he would not deny that he talked to him NORTHERN VIRGINIA STEEL CORPORATION 725 which I credit, is that Corbett said to him that his work was not satisfactory to Gen- eral Manager Baxter. Combs began his employment with Respondent in December 1958. I have found that he was a supervisor engaged as foreman of the day crew that handled fabrica- tion of straight and long-span structural steel shapes, and that he normally super- vised a crew of six to eight employees. I have also found that Combs had been president of the Union for approximately 3 years. Corbett admitted that he knew Combs was a member of the Union. Combs testified that he told Corbett he was a member of the Union in February 1959 when Business Representative Gruse visited him at Respondent's plant. And at that time also told him that the Union did not then intend to engage in any activity. Corbett denied that he had knowledge at the time he discharged Combs that he was president of the Union. Supervisor Pence testified that in a conversation he had with Corbett after the walkout, the latter told him that he had known that Combs was president of the Union, but that he had promised him not to do anything about organizing the employees. Respondent's 'witnesses, Corbett and Baxter, testified that Combs was discharged for excessive absences, tardiness in arrival at work, failure to meet the production schedule on the assignment he was supervising on the day he was discharged and the prior 2 workdays, and the failure to insert stitch plates on one of the trusses called for by this job, with resultant delay in meeting the production schedule. According to Respondent's witnesses, Combs was absent without permission for 3 days approximately a month before his discharge, that he would ask for time off many days after beginning work, and then began the practices of having one of the employees tell him, Corbett, that he had to take time off to attend to some busi- ness. Corbett and Baxter further testified that on many days he would send in word with the employees riding in the same car with him that he had business to attend to, and would be late, and that he was often lust tardy in reporting for work. According to Corbett, Combs reported for work one day between 11 and 11:30 p.m. and he reprimanded him for being late. Baxter and Corbett contended that Combs and his crew were not meeting the production schedule on the long-span structural job Combs started on June 29, 1959, and which he was working on when discharged. Both Baxter and Corbett readily testified that Combs was a person of ability, and had considerable skill in the work in which he was engaged. Their testimony as to his absences included reference to only one absence. This was the unauthor- ized leave of 3 days following a weekend. He had taken his daughter to Norfolk, Virginia, and then went on to Richmond, Virginia, to settle some matters concern- ing his father's disability compensation. The latter had been injured in an indus- trial accident. Combs had not communicated with Respondent during the 3 days of unauthorized leave. Baxter's and Corbett's testimony regarding Combs' alleged leaving work to attend to personal business and tardiness, did not include references to any specific instances or the number or approximate number of times the infrac- tions occurred. Combs admitted the 3 days' absence without permission and his uncertainty as to whether he had a job upon his return. His testimony is undisputed that Re-, spondent took no action against him for the absence and that he was paid for the time he was on this unauthorized leave. His testimony that the only other time he had any leave was 2 days in February 1959 that he had permission to take, and in connection with which Corbett gave him the use of his automobile, was left unre- butted. Combs denied that he asked for time off to attend to personal business when he was on the job, or ever asked employees working with him, or riding with him to work, to tell Corbett that he was taking time off to attend to personal busi- ness. Combs also testified that he was tardy or late for work only three times in the 6 months prior to his discharge, and was not tardy or late during the period of 3 or 4 weeks between the time he took the unauthorized leave and the discharge. In connection with his failure to meet the production schedule for the job on which he was working when he was discharged, Combs admitted that he and his crew were behind, but claimed that the lost time could have been made up before the total time estimated for the project had elapsed. According to him, it was customary to lose time in the setting up of the jig on which to fabricate, and in getting ready the materials to be used in the fabrication, and that the lost time was made up as the job efficiency increased with the running of the job. He further testified that Corbett did not reprimand him for any lag in meeting the production schedule, but on the afternoon of July 2, 1959, called the lag to his attention, and appeared satisfied when Combs, upon learning from him that the job was behind 23 hours for 6 men, assured him that the job would be finished on time. According to Baxter, Alan Lewis Winthrop, the estimator, estimated a production 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD schedule of 3 trusses a day for 6 men working 8 hours a day. Corbett, however, testified that the job called for 21/4 trusses a day with a 6-man crew working 8 hours a day. Combs testified that it was his understanding that 21/4 to 21/a trusses were to bfabricated daily, with a 6-man crew, each working 8 hours a day. He said that he had never been informed that the schedule was 3 trusses per day. While Winthrop may have estimated a production schedule of 3 a day, it appears that Corbett looked to Combs to fabricate from 21/4 to 21/2 trusses per day. There is no evidence that Combs had knowledge of Winthrop's estimate, whether it was 21/4, 21, or 3 trusses. Combs received his instructions from Corbett. When Combs was discharged on July 2, 1959, this job had been running from June 29, 1959. The jig was started on June 29, 1959, and finished on June 30, 1959, along with the fabricating of part of the first truss. According to Combs, the par- ticular job required that the jig be built along with the initial fabricating of a truss to assure that it would be of proper dimensions for this fabricating. So on June 30, 20 hours were expended on this job, and on July 1 and 2, 33.3 hours and 38 hours, respectively, were expended. On June 30, one-half truss was completed, and on July 1 and 2, 11h and 2'trusses, respectively, were completed, making a total of 4 trusses. On the basis of 21/4 trusses a day, 4.68 trusses should have been com- pleted for the'91.3 hours expended. The figure of 4.68 trusses does not allow for the slowness in starting that Combs testified occurred on most jobs, and its being offset by the acceleration in production as efficiency increases while the job runs. The evidence showed an increase of 15.85 percent between the production of 11/2 trusses on July i and 2 trusses on July 2, based on the 33 hours worked on July 1 and 38 hours worked on July 2. Allowing for a similar increase during the remaining 79.7 hours, the project could run on the basis of 21/4 trusses per day for 48 hours of work, an additional 4.8 trusses would have been completed by Combs and his crew if they had been permitted to finish the job, and the job ran the full time of 171 hours. Since only 8 trusses were required, Combs and his crew would have completed the 8 trusses in less than the 171 hours permitted.14 While Corbett testified that he 'saw one of the trusses without stitch plates as it lay on the floor of the plant waiting to be painted, Combs denied this was the case. He testified that it was on the floor without stitch plates after it had been half com- pleted. Combs contended that he and the crew made ready to insert the stitch plates after the truss had been half completed and was turned over on the jig, but found that no stitch plates were available. According to him, it was iFutrell's responsibility to see that all materials were ready for the fabricating. It is also Combs' testimony that he and the crew lost no time because of this unexpected situation, as they removed the half-completed truss from the jig until the stitch plates could be prepared, and immediately began the fabrication of the second truss on the jig. Combs took steps at this time to have prepared the 23 stitch plates which Futrell failed to have avail- able. They were inserted on .the first truss the following morning.15 Combs cate- gorically denied Corbett's testimony that Corbett called the absences of the stitch plates to his attention, and that upon his seeing them missing, he uttered the Lord's name and the words "I forgot them." There is also testimony by employee Kenneth Mullins, which I credit, that on the evening of July 2, 1959, Supervisor Pence said to him that Combs was discharged because Respondent had found out about the union meeting the night before. As previously found, Pence admitted talking to employees about the union activity. And Martin Tighe, the timekeeper, who was directly supervised by Corbett, and occupied the same office as Corbett, testified that on the afternoon of July 2, 1959, Corbett said to him that Combs would have to be gotten rid of because of his union activity. Corbett was not questioned on this testimony on direct examination by Respondent's counsel, but denied that he made the statement which Tighe testified he made, when he was referred to it on cross-examination by counsel for the Charging Party. I credit the testimony of Mullins and Tighe.16 14 Assuming that the production schedule called for 21/2 trusses per day for 48 hours, Combs and his crew would have completed 7 8 trusses within the 154 hours permitted. Combs and his crew, in these circumstances, would have been only two-tenths of a truss behind for the total 154 hours 15 Futrell was not questioned about the stitch plates by Respondent's counsel . Neither was Alan Lewis Winthrop , the estimator, questioned by him regarding the production schedule for this job 10 From consideration of witnesses Corbett and Tighe and the consistency of Tighe's testimony with that of other witnesses, I consider Tighe to be a more credible witness than Corbett. NORTHERN VIRGINIA STEEL CORPORATION 727 2. The discharge of Lingafelt At or about 9:15 to 9 : 30 a.m. on July 3, 1959 , Lingafelt was discharged by Plant Superintendent Corbett . He had worked approximately 2 hours that morning. He was paid off with two checks, one for the payroll week ending Tuesday, June 30, and the other for Wednesday and Thursday , July 1 and 2, and the time he worked on July 3 . I credit Lingafelt's testimony that Corbett said to him when he paid him off that he had a different opinion of the place , was slacking in his work , had lost his morale, and they were going to have to let him go. Lingafelt had been employed by Respondent since May 1959 . He had had previous employment with Respondent. His classification was that of welder , second class, but he was a yard employee, and his duties consisted chiefly of hooking steel to an overhead crane along with another employee by the name of Eugene Kelly. They were required to do the hookup work jointly, except when the steel items were small. The crane operator was Dyre Curtis Conner. Joseph A . Dillon, as previously stated, was in charge of the yard in addition to being purchasing agent for Respondent. He was Lingafelt's and Kelly's supervisor. Kelly was the leadman . Dillon gave him .the instruction or orders with respect to what he and Lingafelt were to do. Lingafelt signed -a union authorization card on June 26, 1959, and secured the sig- nature of three other employees on union authorization cards on June 26 , 1959. He returned the four authorization cards to Combs on June 27, 1959 . He attended the union meeting on July 1 , 1959, and signed a union membership application . Lingafelt testified that he was always available when needed to work with Kelly in hooking or unhooking steel to the crane. He claimed that he was with Kelly on all occasions during work hours except when he went to the restroom as the hooking and unhooking of steel to the crane required their services to be rendered jointly. He denied that Dillon, Baxter, or Corbett ever criticized or reprimanded him because of his work. Dillon testified that starting 3 or 4 weeks before his discharge , Lingafelt was not on the job when his presence was needed, and, as a result, he held up the operation of the crane. According to Dillon, Lingafelt's absences were not of the restroom or drinking fountain type. Dillon testified that on July 2, 1959 , the day before he was discharged, Lingafelt was away from his job three times. He was down the road in the morning, and in the shop on one of his afternoon absences . Dillon said that in the afternoon he recommended to Corbett that Lingafelt be laid off. Dillon was unable to say when or how many times Lingafelt was away from the crane when he was needed to hook up steel to the crane during the 3 or 4 weeks prior to his dis- charge. Dillon admitted that he spent most of the time in the office, and could not see the yard from his desk in the office. He contended, however, that he was in and out of the yard numerous times each day to give orders for jobs or to check whether they had been done or how they were coming along, and at those times he was able to see whether or not Lingafelt was with the crane or doing other jobs to which he had been assigned. Dillon stated that Corbett let him know on July 3 that he was letting Lingafelt go. Baxter and Corbett corroborated Dillon 's testimony that Linga- felt was not staying on the job where he was supposed to be, and was seen at places where he was not supposed to be. Baxter testified that Dillon and Corbett had dis- cussed with him Lingafelt's laxity for 2 weeks prior to his discharge. Corbett testi- fied that Lingafelt had been cautioned on several occasions . Dillon, Corbett, and Baxter testified that they had no knowledge that Lingafelt had engaged in any union activity. Eugene Kelly, the leadman with whom Lingafelt worked , was not called as a witness. However, General Counsel called Connor, the crane operator, as a rebuttal witness. Connor testified that for the 2 or 3 weeks prior to July 3, 1960 , when he and others walked off the job , the yard was filled with steel , and from his seat in the crane, it was even difficult to see Kelly and Lingafelt working-in the yard . According to Connor, Kelly and Lingafelt laid down timbers on which to lay the steel when not hooking steel to the crane. Connor further testified that during the 2 or 3 weeks' period before July 3 , Kelly would go to the office to obtain from Dillon the numbers of the steel beams that were to be used , thereby reducing Dillon's visits to the yard to a few. He stated that the caliber of Lingafelt's work was equal to the caliber of Kelly's work, contrary to Dillon's testimony that Kelly was a good worker while Lingafelt was -a poor worker . He further testified that there was no time at which work was held up by the absence of either Lingafelt or Kelly. He said that there were occasions when he needed only one hooker, and he then would use Kelly or Lingafelt. 3. The discharge of Colley, Taylor, and Hippeard Colley was discharged about 9 a.m. on Friday, July 3 , 1959. He was a welder second class. Superintendent Corbett, that morning, had assigned him and Arnold 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R. Taylor to a welding job in the company yard. At the time Colley was discharged, he was welding cleats on a steel beam. Corbett walked up to him while he was working and said, "Do you have a minute, Colley," and he replied that he had, and took off his welder's shield and laid it down. Corbett then said that he did not know what happened at the plant, but that he was giving him his money, and thereupon handed Colley two checks, one to cover his regular weekly pay for the week ending Tuesday, June 30, and the other to cover Wednesday and Thursday, July 1 and 2, and the time he worked on July 3. Corbett made no reference to his work at this time either by way of criticism or otherwise. He had not been criticized previously about his work. On the prior day, Thursday, July 2, both he and Taylor had worked on the long-span job Combs supervised. Colley signed a union authorization card sometime during the period from June 24 to 27, 1959. He did not attend the union meeting on the evening of July 1, 1959, or sign a union membership application. Corbett testified that Colley was discharged because he was lax, and standing around and talking. He further testified that he said something to Colley about his laxity, but that he continued to get worse. He claimed he talked to Baxter about Colley's laxity, and Baxter replied that if he felt that way about him, to pay him off. Corbett also testified that Colley did not say a word when he paid him off and told him he was discharged. Colley likewise testified that he was silent at this time, but stated that he was so stunned he did not know what to say. Arnold R. Taylor was discharged about 10 a.m. Friday, July 3, 1960, by Superin- tendent Corbett. Corbett called Taylor aside, and said that he did not know what happened to him but his work had been slackening for the last 2 or 3 weeks, so he was going to pay him off. Taylor replied that he thought he always did a good job for him. Corbett then said that he did at one time, but he had not done so in the prior couple of weeks. He then handed Taylor his regular paycheck and a check to cover the additional 2 days and the part of July 3 that he had worked. Taylor began his employment in April 1959 as a welder, and -then became a layout man and fitter. At the time of his discharge, he was working with Colley on an assignment Corbett gave them that morning. He was in the crew supervised by Combs working on the Ion, --span job on July 2, 1959. Taylor had been a member of the Union for about 5 years. He signed a union authorization card on June 26, 1959. He did not attend the July 1 union meeting, or sign a union membership application He had a conversation with Corbett on July 2, the day before his discharge. Taylor asked Corbett to transfer him to the night shift as employee James E. Jones, with whom he had been riding to and from work, had been transferred to the night shift. Corbett replied that he was needed on the day shift, and that he was going to try to work him into the raise he had promised him. Taylor had asked Corbett for a raise about a week before this conversation, and Corbett promised to give it to him.17 According to Corbett, he discharged Taylor because he was continuously loafing and talking. Taylor denied that he was any- where other than where he was supposed to be during the 2 hours he worked on July 3 with Colley on the assignment Corbett gave them. He said that while the job was out in the yard, he had to go inside the shop to assist ,the employee at the punch- press machine in making the plates that were required, and to bring them outside. He also denied he had been previously criticized about his work. Preston Hippeard was discharged by Corbett on July 3, 1959, about 9:30 a.m. Corbett handed him his weekly paycheck and the check for the additional 2 days and the time worked on July 3. Corbett told Hippeard that he had been letting the Re- spondent down the prior 2 weeks, and that it looked like he would have to let him go. Hippeard thanked him and left. Hippeard had been employed by Respondent since April 1959 as a welder. He-was one of the crew working under Combs on the long-span job during the period June 29 to July 2, 1959. He signed a union authorization card on June 25, 1959, and secured the signature of two other employees on authorization cards. He attended the July 1, 1959, union meeting and signed a union membership application form at the meeting. Hippeard testified that he was not criticized or reprimanded during the 2 weeks before he was discharged. His testimony was that he was complimented by Corbett on a Monday morning about 3 or 4 weeks before he was fired after telling Corbett he had put some of the long spans together the prior Saturday when he was working overtime. Corbett testified that Hippeard was out in the road on July 3, 1959, joking and laughing as were Lingafelt, Colley, and Taylor. According to him, these four had 17 Employee James E Jones was transferred to the night shift on July 2, 1959 He asked Corbett to transfer Taylor to the night shift, but Corbett replied that Taylor was needed on the day shift as a layout man Both Taylor's and Jones' testimony regarding the effort to have Taylor transferred to the night shift was left unrebutted. NORTHERN VIRGINIA STEEL CORPORATION 729 engaged in this conduct for about 2 weeks, and that Hippeard, Colley, and Taylor contributed to the alleged failure to meet the production schedule for the long-span job Combs was supervising during the period of June 29 to July 2, 1959. Corbett further testified that on July 3 he personally had to take over Combs' job of super- vising the long-span project as well as supervising other fabricating jobs in the yard, and was fed up watching the four laughing and talking, and away from their work. Baxter testified that Colley, Taylor, and Hippeard were discharged because they were off their jobs and standing around talking when they should have been working for a couple of weeks prior to their discharges, that Corbett discussed with him the failure to stay on the job of these three employees, and that Corbett made the decision to discharge them. He and Corbett denied that they had any knowledge of the union membership or activity of Colley, Taylor, or Hippeard. Alva Joe Moses, a day-shift employee, who began employment with Respondent in October 1958, testified that Superintendent Corbett called him to his office on July 2, 1959, shortly after 11 a.m., when the lunch period had expired. From 9 a.m. to the beginning of the lunch period, he had been in Alexandria, Virginia, on personal business, with Corbett's permission. Corbett asked him if he had heard anything about the Union. When Moses replied that he had heard talk about it 2 or 3 months before,18 Corbett said that no attempt should be made to organize a union with the big steel strike coming on.19 He then asked Moses if he knew who the leaders were, and Moses replied that he did not know. Martin Tighe, the timekeeper, who occupied the same office as Superintendent Corbett, testified that in the afternoon of July 2, 1959, he saw Corbett talking to Supervisor Pence in the office, that they conversed for a long time, and that he overheard Pence say to Corbett that as far as he knew every man on the day shift had signed cards to be members of the Union. Tighe stated that he was unable to hear any more of the conversation because of the noise in the plant. I have previously credited Tighe's testimony that Corbett told him the afternoon of July 2, 1959, that Combs would have to be let go because of his union activity. Tighe also testified that following the statement to him about Combs, Corbett asked him to keep his ears and eyes open and if he heard anything to let him know. It was later in the afternoon when he saw Corbett and Pence talking in the office. Corbett denied having any conversation with Alva Moses, Tighe, or Pence on July 2, 1959, with respect to the Union or union activity. However, I credit the testimony of Moses and Tighe. I affirm my prior finding that Tighe was a more credible witness than Corbett and now find Moses also a more credible witness than Corbett. D. The walkout On July 3, 1960, the day-shift employees left work for their half hour lunch period at 10:30 a.m. Two employees, Alva Joe Moses and Stewart Halsey, went to the 7-11 store, which was on Highland Avenue close to Respondent's plant, to, purchase their lunches. Combs, who had been discharged the previous evening, had a conversation with them in the store. Moses and Halsey told him that some of the employee members of the Union had been fired. He reminded them of the agreement the employees made at the July 1 union meeting, that all of them would walk out if any employees were discharged in connection with the union movement. Moses and Halsey with the other employees returned to Respondent's plant at 11 o'clock when the lunch period ended. After a discussion, most of the day-shift employees decided to walk out. Twenty-one employees "clocked out," that is had the timeclock punch their timecards, at approximately 11:15 a.m., and left the plant. Martin Tighe, the timekeeper, returned from Alexandria to find the employees gone. Earlier, he told Baxter he was quitting and had left the plant, according to him, on seeing Baxter listening in on a telephone conversation. Baxter told him before he left that his job was still available. He stayed out with the other employees, although he did get some timecards for Baxter when he returned, at Baxter's request. The employees milled around outside the plant on Highland Avenue. Some of them left after walking out, but reappeared about 2:30 p.m. The night-shift employees began -arriving to begin work at 3 p.m. anywhere from 2:20 p.m. Nine of them failed to report for work because of the walkout of the day-shift employees. They were told by the employees outside the plant that five employees had been dis- charged and it was their opinion the discharges were due to the union activity. The walkout continued unabated and was still in effect at the beginning of the hearing is Moses had signed a union authorization card sometime during the period June 24 to 27, 1959, attended the July 1, 1959, union meeting, and signed the union membership application form at this meeting 19 The steel strike began July 15, 1959. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on December 8, 1959 . None of the employees who walked out have requested rein- statement. The employees alternated in keeping a one -man picket line continuously from July 6, 1959, up to and including December 3, 1959 , at the intersection of Highland Avenue , which adjoins the plant, with the road leading into the plant. The legend on the picket sign was, "Iron Shopmens ' Local Union 486, AFL-CIO, on strike for recognition by Northern Virginia Steel Corporation." When Corbett saw the employees walk out of the plant , he told Baxter who was at the main office. Baxter came to the plant and he and Corbett talked to some em- ployees in the plant. According to Corbett, they learned from these employees that the walkout had to do with union activity. The evidence does not disclose that any of the employees who walked out disclosed to either Corbett , Baxter, or Hengen as they were leaving the plant that they were walking out because of the discharge of Combs, Lingafelt, Colley, Taylor, and Hippeard . Baxter testified that Pete Halsey 20 of the day shift told him, as he was walking off at 11:15 p.m., that Secretary -Treasurer Hengen and Gruse, the Union's business representative, were going to sign a collective-bargaining contract at the 7-11 store, and that there were to be no employees in the plant . Corbett further testified that Falts, an employee who remained at work, told him that "Pete" Halsey had told him the same thing. Employees Teddy Justice and Palmer Dotson arrived at the plant on July 3 for the night shift about 2:20 p .m. They learned from the day-shift employees outside the plant that there had been a walkout because five employees had been fired, and that they were of the opinion the discharges were due to the union activity . They went into the plant about 2:30 p.m. to get their clothes but not to work . Corbett asked Justice and Dotson if they were going to work. Justice replied that they were not. Hengen was also present, and also asked if they were going to work, and added, "or crawl on your belly like a snake ." Justice replied that he was not going to work, and did not crawl on his belly for anyone . Justice and Dotson then left the plant and joined the other employees out on Highland Avenue. Hengen appeared on (Highland Avenue about 3 p.m. Stanley H. Dodson, chief of police, and the remainder of the Fairfax County police force , were there. Hengen had called the chief of police between 2:30 and 3 o'clock.21 At that time, the day-shift employees had been augmented by the night -shift group. Kenneth and James Mullins, Justice, Dotson, Tighe, and Arnold Taylor were among the employees present Hengen asked them why they were there. He was told by one of the group that they went there for their pay. He also asked them why they were not working. One of them replied that it was because five of the employees were fired on account of the action of the Union in organizing and seeking recognition. Hengen replied that before he would go union he would sell the steel and close the plant, and that he was operating an open shop and anyone who wished to work could. He also stated that if the night -shift employees did not go to work he would consider them to have quit. He had previously stated that their jobs were there if they wanted them. Chief of Police Dodson asked the employees why they were there, and one replied, to get their pay. Dodson asked Hengen if the men could be paid, and he replied that the day shift could be paid in a half hour, which would be 3:30 p.m., and the night shift about 4 p.m. He told the employees that the day shift would be paid in a half hour and the night shift at 4 p.m. Hengen then got into Dodson's automobile and the latter drove him to the office of the plant . The employees were paid as scheduled 22 In response to Hengen 's question why they were not working , Arnold Taylor answered that they wanted more money, that they could obtain it in Washington, and Hengen replied that they ought to go to Washington to get it. I also credit Chief of Police Dodson's testimony, and that of Hengen , that Tighe, the timekeeper, stated 20 Pete Halsey could have been J . J. Halsey, S J. Halsey , or M S Halsey , all of whom were day-shift employees 21 Hengen testified that he called Dodson because a resident of the neighborhood became concerned at seeing the group of men assembled on Highland Avenue No testimony was offered to show any sign of disturbance or disorder on Highland Avenue when the em- ployees were assembled there. 211 credit the testimony of Kenneth and James Mullins, Justice , Dotson, and Arnold Taylor as to what Hengen said to the assembled group of employees I also credit the testimony of James Mullins , Kenneth Mullins , Dotson , and Justice as to statements made by other employees in the group to Hengen They knew that the persons assembled or in the group were the employees of Respondent , and they heard the statements made With- out making the statements themselves , or being located at vantage points from which the sound could be followed to the speaker , such as the position Hengen had in facing the employees, it would be difficult to identify the employees talking, and remember who they were 6 months later. NORTHERN VIRGINIA STEEL CORPORATION 731 there was some work for which he had not been paid, and Hengen's testimony that he told Tighe that he would be paid' any amount that was due him. I find at this time that the employees on July 3, 1959, sought the weekly wages normally due them on this date, which was a payday. There is no evidence to support the position of Respondent that the employees voluntarily terminated their employment with Respondent. The employees did not, as Respondent contends, ask for the wages for Wednesday and Thursday, July 1 and 2, and the time they may have worked on July 3. Respondent, in the person of Secretary-Treasurer Hengen, for its own purposes, elected to pay them not only the wages due on July 3, namely, for the weekly payroll period ending June 30, 1959, but also the wages for July 1 and 2 and the time worked on July 3, if any. The latter wages would normally be paid on July 10, 1959. E. The refusal to bargain I have found that on July 2, 1959, a letter from the Union, dated July 1, 1959, was handed by the letter carrier to Moore, Respondent's comptroller, and that the letter, with the envelope unsealed or otherwise unopened, was refused by Baxter, Respondent's general manager, and that Secretary-Treasurer Hengen refused to call for it at the post office because he knew that the letter was from the Union, and con- tained a statement by the Union that it represented a majority of the Respondent's production, maintenance, and warehousing employees, and a request for recognition and collective-bargaining negotiations. I have also found that at the time the Union sent the letter on July 1 and when it was refused on July 2, the production, main- tenance, and warehousing employees was an appropriate unit for purposes of col- lective bargaining, and that the Union represented a majority of these employees. The remaining events in the saga dealing with the efforts of the Union to secure recognition are contained in the following paragraphs. There is no conflict in the testimony of George A. Fath, attorney for the Union, and that of Secretary-Treasurer Hengen, that on July 3, 1959, between 11 a.m. and 2:30 p.m. they had a telephone conversation in which Fath stated to Hengen, that on behalf of the Union he was informing him that the Union represented a majority of its employees and requested the Respondent to recognize the Union as the col- lective-bargaining representative of its employees, to meet with the Union for collective-bargaining negotiations, and to meet that afternoon with a representative of the Union and him to discuss the matter. Oren Lewis, attorney for Respondent, agreed on the record that Fath made a valid request for collective bargaining on July 3. Fath testified that Hengen said he had nothing to talk about, that he had no employees at the time, but that if Fath had something to talk about to call him the following Tuesday (July 7). According to Fath, he replied that the employees on strike had selected the Union as collective-bargaining representative. Hengen testi- fied that he said he could not meet with the union representative that afternoon be- cause of the press of business he had on Friday, that the Monday following the July 4 holiday was a busy day, and to call on Tuesday, July 7, to see whether a meeting could be arranged. Hengen testified he also said that he had doubt that the Union represented a majority of the employees since a number of them had quit following the lunch hour which ended at 11 a.m. that morning. Fath called Hengen on July 7 but was unable to reach him. On July 8, he mailed a letter to Hengen in which he stated that the Union represented a majority of the Respondent's production, maintenance, and warehousing employees, and requested a meeting for purposes of collective bargaining. On July 8, Fath talked to Hengen by telephone, asking for a meeting for purposes of collective bargaining. They agreed to meet on July 9 at 1 o'clock in the afternoon. Hengen stated there was a picket in front of the plant, that he hated to be coerced, and before he would meet with anyone the picket would have to be removed. Fath said he would check with the Union and would call back. He called Hengen on the morning of July 9 and told him that the Union would remove the pickets only during the negotiation ses- sions. Hengen then replied that there was no use in meeting. The meeting sched- uled for that afternoon was postponed. Hengen received Fath's letter on July 9 after the conversation in which the meeting was postponed. And he received a copy of the original unfair labor practice charge after the receipt of the letter, probably on July 10, 1959. Oren R. Lewis, attorney for Respondent, replied to Fath's letter of July 8 by a letter dated July 14. He stated in the letter that Respondent was willing to meet at any reasonable time to discuss the matters raised in Fath's letter, that the Respondent had a question as to whether or not the Union represented a majority, and requested proof from the Union that it represented a majority. The two attorneys agreed on a meeting on July 21. On the morning of July 21, Fath and Lewis had a telephone conversation, in which the matters set out in Fath's letter of July 8 and Lewis' letter of July 14 were discussed. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fath requested a postponement of the meeting. There was further correspondence between counsel, and a new meeting was set for August 4. The meeting of August 4 was attended for the Union by Gruse, business representative of the Union, and Fath, its attorney, and for Respondent By Hengen, secretary-treasurer, and Lewis, its attorney. The discussion was primarily on the question "Who were the employees in,the appropriate unit?" This question was the matter primarily discussed in all the conversations btween the Union and Respondent beginning with the one between Hengen and Fath on July 3, 1959. The Respondent and the Union never reached a discussion of contract proposals. Respondent, in the persons of Hengen and Lewis, has admitted that from the time of the July 3 conversation, Respondent's position has been that the employees on the day shift who walked off the job after lunch on July 3, 1959, and the employees on the night shift who refused to work at 3 p.m. on July 3, 1959, were not employees of Respondent, that they walked off or refused to work without notice, with the intention to terminate their employment. Hengen testified that they asked for all their pay when they gathered outside the plant about 3 p.m. on July 3. Respondent has demanded on each occasion, when discussion was had with the Union, that the Union furnish proof of majority, and on August 4 and on other occasions asked Gruse and Fath for leave to examine the union authorization cards. It is clear that the purpose was to show the Union that it did not represent a majority since the employees in the appropriate unit were those who worked on Monday, July 7, 1959, and thereafter during the period up to July 12 or 13, 1959, when Attorney Lewis had what he considered an opportunity to examine into the matter 23 Fath, the attorney for Respondent, refused on each occasion to show the union authorization cards to Lewis or Hengen, but offered to show them through a disinterested party selected by Respondent and the Union. He also insisted that Respondent, by Hengen or Lewis, agree that the employees employed on June 30 or July 1, 1959, should be the employees considered to be in the appropriate unit for the purpose of a determi- nation as to whether or not the Union represented a majority. Lewis offered to refer the whole matter dealing with the demand for recognition and collective-bargaining negotiations and with the question of "Who were the em- ployees in the appropriate unit?" to the Board for disposition. Fath countered with an offer to submit the matter to arbitration, although the Union had brought the matter before the Board by the filing of the unfair labor practice charge giving rise to this proceeding. They did not reach any agreement. The impasse between the Union and the Respondent is on the preliminary matter of "Who were the employees in the appropriate unit?" Were they the employees employed on June 30 or July 1, 1960, or those working on July 7 to July 12 or 13, 1959? As part of Respondent's defense that the Union never offered any proof that it represented a majority in the appropriate unit, and that it considered as employees those working after the walkout and refusal to work on July 3, 1959, Respondent offered the testimony of Superintendent Corbett, General Manager Baxter, and Secretary-Treasurer Hengen that prior to the discharges and walkout, they had no knowledge of any union activity in Respondent's plant, and that they did not discuss with each other, with Pence, or other employees any matters relating to union activity or membership of employees. I have credited the testimony of Justice that he saw Hengen talking to Pence on the evening of July 2, 1960, prior to the dis- charge of Combs, Lingafelt, Colley, Taylor, and Hippeard, and the walkout and refusal to work on July 3, 1959, and the testimony of Alva Joe Moses that Corbett discussed union activity with him on July 2, 1959, prior to Combs' discharge, and Tighe's testimony that Corbett told him on the afternoon of July 2, 1959, that Combs would have to be let go because of his union activity, and asked him to keep his eyes and ears open to any union activity that might take place. F. Concluding findings 1. The discharges I have made evidentiary findings that Combs was discharged on July 2, 1959, and that Lingafelt, Colley, Taylor, and Hippeard were discharged on the morning of July 3, 1959. I have set out the testimony of General Counsel's witnesses and the witnesses for Respondent in regard to these discharges. The question is whether they were discharged discriminatorily or for cause. 28 Lewis was asked by Hengen to handle the matter for Respondent following Hengen's telephone conversation with Fath on July 3, 1959. Lewis testified that he was not able to give any consideration to the matter until July 12 or 13 as he was engaged in trying a case at Front Royal, Virginia. NORTHERN VIRGINIA STEEL CORPORATION 733 Combs' discharge shortly after 3 p.m. on July 2, followed shortly Baxter's refusal to receive the Union's letter of July 1, in which it stated that it represented a majority of Respondent's employees and requested recognition and collective-bargaining ne- gotiations. I have found that Baxter, Hengen, and Corbett, Respondent's executive personnel, were aware that the letter was from the Union and that it contained a request for collective bargaining. There is Supervisor Pence's testimony that Corbett stated to him that he knew that Combs was the leader of the Union, and Tighe's testimony that Combs stated to him that he would have to let Combs go because of his union activity. I have also found that Hengen, Baxter, and Corbett were aware of the union meeting of July 1, 1959, and that Combs presided at the meeting. From an appraisal of the defense of Respondent that Combs was fired for cause, I find that it was manufactured to avoid the consequence of a discriminatory discharge. Respondent saw fit to ignore or not act upon Combs' unauthorized 3 days' absence around the middle of June until the Union headed by Combs engaged in union activity, organized the employees, and requested recognition and collective bargaining. I credit Combs' testimony with respect to Respondent's charges of tardiness and un- authorized leave during the workday in view of Respondent's lack of factual evidence and its reliance upon purely conclusionary statements by Corbett and Baxter in sup- port of such charges. I further find that the evidence does not disclose a failure by Combs in meeting the production schedule on the long-span structural job he was supervising from June 30 to July 2, 1959, which would warrant his discharge for cause. I therefore, conclude and find that Combs was discharged because of his union activity. Since Combs was a supervisor, I find that this discharge was not violative of Section 8(a)(3) of the Act. However, I find it violative of Section 8(a)(1) of the Act as it has constituted, and is constituting, interference, restraint, and coercion of, rank-and-file employees in the exercise of their self-organizational rights guaranteed in Section 7 of the Act. Respondent's conduct caused, and is causing, the non- supervisory employees to reasonably fear that Respondent would take similar action against them it they supported the Union 24 Lingafelt, Colley, Taylor, and Hippeard, day-shift employees, signed union authori- zation cards. Taylor had been a member of the Union for about 5 years. Lingafelt obtained the signatures of three other employees on union authorization cards and Hippeard obtained the signatures of two other employees on these cards. Lingafelt and Hippeard attended the July 1, 1959, union meeting and signed union member- ship applications. The testimony of Tighe and Moses disclosed that Corbett, contrary to his testimony, had knowledge of the union activity in the plant on the afternoon of July 2 prior to any of the discharges, and that he was seeking the identities of union leaders, in addition to Combs. The testimony of Corbett, Baxter, and Dillon does indicate that there may have been some congregating in the yard of the plant by Lingafelt, Colley, Taylor, and Hippeard in the 2 or 3 weeks prior to the discharges. This was the time when the union activity was going on, and as it reached its climax the intensity and interest of the employees undoubtedly increased. However, I find that the credited testimony referred to in the following paragraphs belies the defense of Respondent that these four employees engaged in any conduct warranting discharge. There is the testimony of Connor, the crane operator, that Lingafelt, a yard em- ployee who hooked steel to the crane, was a good worker and in every instance was available when his services were needed, and was not absent when his services were needed; that when Corbett discharged Colley he said to him that he did not know what was happening in the plant but he would have to let him go; that on July 2, 1959, the day before he discharged him, Corbett told Taylor that he was going to try to work him into the raise he promised him, and refused to transfer him to the night shift because he was needed on the day shift; and that on a Monday, 3 or 4 weeks before the day of discharge, Corbett praised Hippeard for the work he had done on overtime the prior Saturday; and finally, the testimony that none of these employees had ever been criticized or reprimanded prior to the discharge in regard to the per- formance of their duties as employees. In connection with the discharges, I have con- sidered the credited testimony that Secretary Hengen was seen engaged in conver- sation with Supervisor Pence, a repository of knowledge of union activity, on the evening of July 2, and that Pence stated later that Hengen said he would sell the steel and close the plant before he would permit the Union to come into the plant, and that Pence told Corbett on the afternoon of July 2, that all the employees on the day shift had signed union membership applications. In the light of this evidence, as in the case of Combs. it was more than a coincidence or happenstance that Respondent 24Talladega Cotton Factory, The, 106 NLRB 295, 296-297 , enfd 213 F 2d 208, 525-527 (CA. 5). 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged these employees upon the heels of its refusal to accept delivery of the Union 's request for recognition and collective-bargaining negotiations. From the above evidence , and the proximity of the discharges to the Union's re- quest for collective bargaining , and Respondent's efforts to avoid receiving the re- quest, and other conduct on July 2, 1959, I find and conclude that Lingafelt , Colley, Taylor, and Hippeard were discriminatorily discharged to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act .25 2. The unfair labor practice strike It is undisputed that about 21 day-shift employees concertedly walked out of the plant about 11:15 a.m. on July 3, 1959, shortly after the end of the lunch period, and 9 night-shift employees refused to work on July 3, 1959. The walkout was witnessed by Plant Superintendent Corbett. He admitted that he and General Man- ager Baxter learned shortly thereafter from the employees that the walkout was connected with union activity. I also find that apart from this source of knowledge, Respondent had knowledge that the walkout was a strike in protest against its dis- criminatory discharge of employees Lingafelt, Colley, Taylor, and Hippeard between 9 and 10 a.m. on the morning of July 3. This knowledge can be, and is, inferred from the evidence of the proximity of the walkout to the discharges, and of the con- duct of Respondent on July 2 and 3, 1959. I find for the same reason that Re- spondent had knowledge that the nine night-shift employees concertedly refused to work on July 3 also in protest against the discriminatory discharges 26 In any event, the statements made to Secretary-Treasurer Hengen by the employees at or about 3 o'clock on July 3 when they were grouped outside the plant talking to him made it clear to him that they were concertedly protesting the discharges. Respondent by Secretary-Treasurer Hengen contended that when he paid each of the 31 employees at 3:30 and 4 p.m. on July 3 the wages due not only for the pay- roll period ending Tuesday, June 30, 1959, but also for the time worked between that date and the time they walked out or refused to work, he was paying them off pursuant to their wishes to terminate their employment, and from then on they were no longer employees of Respondent. I have previously found that the evidence does not support this position. The evidence shows, and I so find, that the employees were seeking only the wages they would normally receive on July 3, which was a weekly payday. Hengen by his election to pay them off in full, and contending that they voluntarily quit or terminated their employment, deliberately engaged in subtle conduct to give the appearance that the employees quit or terminated their employ- ment. I do not resolve the question whether Respondent by its conduct discharged these employees when engaged in an unfair labor practice strike, as such a violation was not alleged by General Counsel in his complaint or litigated by him in the unfair labor practice proceeding. I therefore conclude that the 31 employees who walked off the job or refused to work on July 3, 1959, engaged in an unfair labor practice strike because of the discriminatory discharges of Lingafelt, Colley, Hippeard, and Taylor. Because of the legend on the picket sign carried, by the employees until December 3, 1959, I find and conclude that the strike was also in protest against the Respondent's un- lawful refusal to bargain, which I find infra. 3. The refusal to bargain I have found that Respondent was on notice on July 2, 1959, that the Union claimed majority representation of employees in an appropriate unit and requested recognition and collective-bargaining negotiations. I have previously found that when the Union mailed its demand letter on July 1, 1959, and Respondent refused the letter on July 2, 1959, the Union represented a majority of Respondent's pro- duction, maintenance, and warehousing employees, and that these employees made up an appropriate unit for collective-bargaining purposes. I find at this time that the failure of Hengen to call at the post office to obtain the certified letter from the Union was an act of bad faith, and the first breach of Respondent's duty to bargain. Since the day-shift employees who walked out on July 3, 1959, were unfair labor practice strikers, and employees Lingafelt, Colley, Taylor, and Hippeard were dis- as See Tak Trak, Inc, 128 NLRB 876; West Coast Casket Company, Inc, 97 NLRB 820, enfd. 205 F 2d 902 (CA. 9) Despite the testimony of Respondent's witnesses to the contraiy, the record discloses knowledge by Respondent of the union activity of day-shift employees prior to the discharges Walls Manufacturing Company, Inc , 128 NLRB 487, is inapposite 20 See Talc Trak, Inc., supra. NORTHERN VIRGINIA STEEL CORPORATION 735 criminatorily discharged, they were still in the appropriate unit, when Fath, attorney for the Union talked to Hengen by telephone on July 3, 1959, and made a valid re- quest for recognition and collective bargaining. I find that also at this time and from then on, the Union continued to represent a majority of the employees in the appropriate unit. While Hengen's reply on July 3 that he could not meet with Fath on that Friday afternoon because it was payday, standing alone could be considered reasonable, the recourse by Lewis and him in all the discussions with Fath and Gruse to requesting the Union to produce proof of majority was not made in good faith because they were relying on the artifice that the unfair labor practice strikers from both the day and night shifts had quit their jobs, and were, therefore, not in the appropriate unit, with the consequence of a dissipated majority. As previously found, the employees did not quit or intend to do so, but merely struck in protest against the discriminatory discharge of Lingafelt, Colley, Taylor, and Hippeard, and Hengen paid them off in full, representing that they asked for all their pay and de- sired to quit, to make it appear that they terminated their employment. The evi- dence supports the General Counsel's position that they requested only the wages due them on July 3, 1959, which were those for the payroll period ending June 30, 1959. There is no evidence of any statements made or conduct engaged in by the striking employees to support Respondent's position. By this position, Respondent has hoped to be able to avoid its duty to bargain collectively with the Union, and in reliance upon it contends that it has not refused to bargain in good faith with the Union. The duty to bargain arose when Hengen refused to call at the post office for the certified letter on July 2, 1959, was present when Fath made the second request for bargaining on July 3, and has continued to be present since that time. The evidence against Respondent discloses that from the outset, it has engaged in conduct designed to make it appear that it had no duty to bargain with the Union. In view of the bad-faith conduct of Respondent, I conclude and find that the re- quests Respondent made to the Union that it show evidence of its majority repre- sentation, and its offer to submit the matter to the Board for resolution were not made in good faith, and, therefore, are not defenses of its refusal to discuss bargain- ing proposals with the Union. In the circumstances of this case, the Union properly brought the matter before the Board when it filed the unfair labor practice charge against Respondent that gave rise to this proceeding. The Board would not have considered the unfair conduct of Respondent to defeat the 'rights of its employees and their designated representative to collective-bargaining negotiations, in a repre- sentation proceeding.27 In any event, there was nothing to prevent the Respondent from filing unilaterally with the Board a petition for an election. If it had not en- gaged in unfair conduct as it has contended, the Union's unfair labor practice charge would have been dismissed, and the petition would have been processed. In this context, its failure to do so could well be considered as evidence of knowledge by Respondent that the petition, unless consented to by the Union, would not be processed until the charge of unfair conduct had been resolved in an unfair labor practice proceeding stemming from the filing of the charge by the Union, and, therefore, its unfair labor practices would be before the Board when the petition was considered even though such a proceeding does not provide the proper forum for airing them de novo. The Union's refusal to agree to Respondent's proposal that it consent to the representation proceeding, and thereby make possible the bypassing of the unfair labor practice proceeding, does not provide Respondent with a defense. I conclude and find that Respondent has refused to bargain in good faith in viola- tion of Section 8(a) (5) and (1) of the Act 28 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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 of commerce. V. THE REMEDY Having found that the Respondent has interfered with, restrained, and coerced rank-and-file employees by the discharge of E. B. Combs, and has discriminated in regard to the hire and tenure of employment of Denver Colley, Preston N. Hippeard, Charles D. Lingafelt, and Arnold R. Taylor, I shall recommend that Respondent 2711i-States Company, 117 NLRB 86. 28Trader8 Oil Company of Houston, 119 NLRB 746, enfd. 263 F 2d 835 (C.A. 5) ; Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F . 2d 732 (C.A D C.), cert. denied 341 U.S. 914. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer to each of them immediate and full reinstatement to his former or substantially equivalent position, without prejudice to seniority and other rights and privileges previously enjoyed , and make each of them whole for any loss of earnings sustained by reason of his discharge by payment to him of a sum of money equal to the amount he would have earned from the date of July 2, 1959, in the case of Combs, and from July 3, 1959, in the cases of Colley, Hippeard, Lingafelt, and Taylor, to the date of offer of reinstatement less his net earnings during that period . Backpay shall be computed in accordance with the Board's policy set forth in F. W. Wool- worth Company, 90 NLRB 289. Having also found that 31 employees have been unfair labor practice strikers since July 3, 1959, I shall recommend that upon these unfair labor practice strikers making a timely and unconditional application for reinstatement , Respondent offer to them immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replacements in order to provide work for such strikers. If after such dismissal or other disposition of such replacements, there are insufficient posi- tions available for the strikers, the available positions shall be distributed among them on the basis of seniority or such other nondiscriminatory practice as may have been heretofore applied in a reduction in force in Respondent's business. There- after, the employees for whom no employment is immediately available shall be placed on a preferential hiring list, and recalled as soon as work becomes available on the basis of seniority or such other nondiscriminatory method as the Respondent may apply. I shall also direct the Respondent to reimburse the strikers for any loss of pay they may have suffered by reason of Respondent 's discrimination against them, by paying to each of them a sum of money equal to the amount that each normally would have earned as wages for a period beginning 5 days after the date of his timely and unconditional application for reinstatement to the date of Respondent's offer of reinstatement or of preferential hiring status, less his net earnings during said period. Barney's Supercenter, Inc., 128 NLRB 1325. The amount of backpay shall be computed according to the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289. I shall also recommend that Respondent make available to the Board, upon re- quest, payroll and other records to facilitate the determination of the amount due and other rights under the remedy recommended for each group of employees. Having found that Respondent has unlawfully refused to recognize or to bargain with Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the representative of its employees in an appropriate unit, I shall recommend that the Respondent be re- quired, upon request, to extend recognition to and bargain with this Union. 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. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and Shopmen's Local Union No. 468 of the International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 2 By discharging E. B Combs on July 2, 1959, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. By discharging Denver Colley, Preston N. Hippeard, Charles D. Lingafelt, and Arnold R. Taylor on July 3, 1959, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. The following employees have been unfair labor practice strikers since July 3, 1959, and have not made application for reinstatement: D. C. Allison H. R. Hizer J. M. Patrick David Bohlman J. E. Jones T. D. Rutherford D. C. Connor T. R. Justice B. R. Sanders R. E. Devine A. D. Keesucker H. L. Scott P. C. Dotson Eugene Kelly Charles Sirovy T. L. Dotson J. C. Lyle J. C. Sliger Leroy Frazier James Mullins M. N. Tighe H. J. Halsey K. B. Mullins C. M. Williams M. S. Halsey A. J. Moses B. C. Bates S. J. Halsey H. S. Moses C. J. Halstead C. L. Northcutt 5. All production, maintenance, and warehousing employees of Respondent, ex- LOCAL JOINT EXECUTIVE BOARD OF SAN DIEGO 737 cluding professional , office, clerical, and custodial employees , guards, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 6. On and since July 1, 1959, Shopmen's Local Union No. 486 of the Interna- tional Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, has been and is the majority representative of the employees in the above-described appropriate unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment , and other terms and conditions of employment. 7. By refusing on July 2, 1959, and thereafter , to recognize and to bargain col- lectively with the Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local Joint Executive Board of San Diego , comprising Waiters' and Bartenders Local 500 and Cooks and Waitresses Local 402, affiliated with Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO and W. D. Evans d/b/a The Evans Hotels operating the Bahia Motor Hotel. Case No. 21-CP-35. August 4, 1961 DECISION AND ORDER STATEMENT OF THE CASE Upon a charge filed on December 13, 1960, by W. D. Evans d/b/a The Evans Hotels, hereinafter called Evans, the General Counsel of the Board, by the Regional Director for the Twenty-first Region, issued a complaint dated December 28, 1960, against Local Joint Ex- ecutive Board of San Diego, comprising Waiters and Bartenders Local 500 and Cooks and Waitresses Local 402, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, hereinafter called Respondent or Union, alleging the vio- lation of Section 8(b) (7) (B) of the Act. A copy of the charge was duly served on Respondent. The complaint alleges in substance that since on or about December 14, 1960, the Respondent has picketed a motel of Evans at San Diego, California, with an object of (a) forcing Evans to recognize and bar- gain with Respondent as the representative of Evans' employees, and (b) forcing Evans' employees to accept and select Respondent as their representative, that Respondent was not at the time of such picketing, and is not now, the certified representative of such employees, and that such picketing was conducted within 12 months after a Board election. On or about January 23, 1961, the Respondent filed an answer to the complaint, denying only that it had picketed as alleged and that the picketing was for the objects alleged. On January 20, 1961, desiring to avoid the need for a hearing, the 132 NLRB No. 56.