Superior Tool & Die Co.

SUPERIOR TOOL,& DIE CO. ^ 1373 and now is the duly designated and exclusive representative of all employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the , Act, as amended. 5. By failing and refusing at all times since February 8, 1960, to bargain in good faith with International Union, United Automobile Aircraft and Agricultural Im plement Workers of America, AFL-CIO, and its Local 157, as the exclusive bargain- ing representative of production employees in the aforesaid appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act, as amended. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act, as amended. [Recommendations omitted from publication.], Superior Tool & Die Co. and United Steelworkers of America, AFL-CIO. Case No. 8-CA-2073. August 29, 1961 DECISION AND ORDER On December 23, 1960, Trial Examiner Sydney S. Asher, Jr., 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 Intermediate- Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to' such allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and- briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. 1 We agree with the Trial Examiner that Respondent engaged in independent violations of Section 8(a) (1) but do not rely on his finding that Rector's explanation to the assembled employees on August 28, 1959, that they were subject to replacement during an economic strike was coercive and illegal. This was a correct statement of the law which Rector was privileged to make in the circumstances. Without adopting the Trial Examiner' s view as to the effect given by the Board to strike settlement agreements , as distinguished from settlements of unfair labor practice charges, we agree with him that it is appropriate in this case to consider the events antedating the strike settlement agreement between Respondent and Union of October 26, 1959 2 Member Leedom would not adopt the Trial Examiner 's recommendation of a narrow cease-and-desist order. In view of the nature of the unfair labor practices found, he be- lieves that a broad cease-and-desist order should be entered 132 NLRB No. 110. C, 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Superior Tool & Die Co., Akron, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging its employees from joining or engaging in ac- tivities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization, by denying employment to or refusing to reinstate any of them, or in any other manner discriminating in re- gard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with economic reprisals if they en- gage in a lawful strike or any other protected concerted activities. (c) Attempting to undermine the authority or prestige of the above- named labor organization, or attempting to deal with its employees ,directly regarding negotiable matters, thereby bypassing the above- named labor organization, so long as the above-named labor organiza- tion is the statutory bargaining agent for its employees. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in 'Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Lucy Lemasters and Juanita Beryle McKibben imme- diate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole in the manner set forth in the Intermediate Report. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to determine the amounts of backpay due under these recommendations. (c) Post at its plant in Akron, Ohio, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being 3In 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." SUPERIOR TOOL & DIE CO. 1375 signed by a duly authorized representative of the Respondent, 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. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other materials. (d) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. 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, you are notified that : WE WILL NOT discourage our employees from joining or engag- ing in activities on behalf of United Steelworkers of America, AFL-CIO, or any other union, by denying employment to, or re- fusing to reinstate any of them, or in any other manner discrimi- nating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with economic reprisal if they engage in a lawful strike or any other protected concerted activities. WE WILL NOT attempt to undermine the authority or prestige of the above-named Union, or attempt to deal with our employees directly regarding negotiable matters, thereby bypassing the above-named Union, so long as it is the statutory bargaining agent for our employees. WE WILL NOT in any like or related manner interfere with,,re- strain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any union, to bargain collectively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a union as a condition of employment as authorized in Section 8•(a) (3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Lucy Lemasters and Juanita Beryle McKibben immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their 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. All our employees are free to become, remain, or refrain from be- coming or remaining members of any union, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. SUPERIOR TOOL & DIE Co., 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 This case involves allegations that Superior Tool & Die Co., Akron, Ohio, herein called the Respondent, has since about August 28, 1959, interfered with, restrained, and coerced its employees in certain specified respects , that it failed to rehire or reinstate employee Flora D. Young on or about January 8 , 1960, that it discharged employee John D. Collins on or about December 31, 1959, that it discharged em- ployee Lucy Lemasters on or about January 11, 1960, and that it discharged em- ployee Juanita Beryle McKibben on or about January 12, 1960, and thereafter failed or refused to reinstate these employees, because they formed, joined, or assisted United Steelworkers of America , AFL-CIO, the Charging Party, herein called the Union , and/or sought to bargain collectively through representatives of their own choosing, and/or engaged in other concerted activity, and/or because of the demands or threats of an antiunion group of the Respondent 's employees. It is alleged that this conduct violated Section 8(a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. After the issu- ance of a complaint by the General Counsel' and the filing of an answer by the Respondent, a hearing was held before Sydney S. Asher, Jr., the duly designated Trial Examiner, at Akron, Ohio, between May 17 and June 14, 1960, both dates in- clusive. All parties were represented and participated in the hearing. The Respond- ent made numerous motions to dismiss the complaint . Rulings on these motions were reserved. They are disposed of now in accordance with the findings, conclu- sions, and recommendations contained herein . After the close of the hearing, the Union and the Respondent filed briefs which have been duly considered. Upon the entire record in this case ,2 and from my observation of the witnesses, I make the following: I The designation General Counsel refers to the General Counsel of the National Labor Relations Board and his representatives at the hearing 2 On October 25, 1960 , the transcript was corrected in certain respects . Additional cor- rections to the transcript are now made as follows : Page 192, line 12: Strike the word "taling" and substitute therefor the word "talking." Page 251, line 21: Strike the word "give" and substitute therefor the word "given " Page 810, line 21: Strike the name "Rice " and substitute therefor the name "Martin." Page 1118, line 4: Strike the word "identifies" and substitute therefor the word "identifies." SUPERIOR TOOL & DIE CO. 1377 FINDINGS OF FACT There is no dispute, and it is found, that the Respondent is, and, at all material times has been, an employer engaged in commerce within the meaning of the Act and its operations meet the Board's jurisdictional standards,3 and that the Union is, and at all material times has been, a labor organization within the meaning of the Act. A. The Respondent's operations About 6 or 7 years before the events hereafter related, the Respondent began operating on two shifts. This continued, with some periods when only one shift operated, until April 1960-after the events described herein but before the hearing- at which time the second shift was discontinued.' Approximately a year prior to the events discussed herein, the Respondent adopted a policy of refraining from em- ploying females on the second shift. This policy remained in effect at all material times.5 At all material times, the Respondent employed about 30 production workers. Every production employee performed, from time to time, both hourly rated work and piecework. The piecework rates for each job were determined unilaterally by the Respondent. B. Events through the fall of 1959 1. Events prior to the strike On June 22, 1959, the Union filed with the Board a petition in Case No. 8-RC-3540 seeking to represent the Respondent's production and maintenance em- ployees, with certain exclusions not here material. A consent election was held on July 17 6 The Union won and was certified on July 24. About 2 weeks later the Union chartered a new local, number 5860, composed of the Respondent's employees. This local elected officers and appointed a negotiating committee. The parties then began negotiating a collective-bargaining agreement. The Respondent was repre- sented by Jess H. Rice, its president; Donald Rice, its vice president; 'r Wilbur W. Fisher, its factory superintendent; and Harvey B. Rector, its labor relations consult- ant. The Union was represented by William Taggart, one of its staff representatives acting as business agent of the local; John D. Collins, an employee of the Respond- ent and president of the local; Betty Keiffer, recording secretary of the Local; 8 and employees Juanita Beryle McKibben and Ann B. Brooks. A number of negotiating meetings took place, one of which was on August 27.9 Among the issues discussed as that session were wages, working rules and piecework.lo On the next morning, August 28; there was confusion among the employees as to the status of the negotiations, particularly with reference to piecework. Fisher noticed the unrest and reported it to Rice. Rice then conferred with Keiffer, McKibben, and Brooks in Fisher's of6ce.11 ' Fisher was present during at least part of the discussion which ensued. Rice stated that he had heard that the employees were complaining about piecework and he wanted it settled. He added that as 8 The Respondent is an Ohio corporation with its principal office and place of business in Akron, Ohio. It is engaged in the manufacture , sale, and distribution of automotive products . The Respondent annually ships products valued in excess of $50,000 to points outside the State of Ohio and receives materials valued at more than $50,000 from sources outside the State. 4 It is not clear whether the April 1960 discontinuance of the second shift was temporary or permanent. B The record indicates that this policy was discussed at the bargaining sessions held in 1959 between the Respondent and the Union , described below. 8 Unless otherwise noted, all dates in this section refer to the year 1959. 7 To avoid confusion, Jess H. Rice will be referred to herein simply as Rice and Donald Rice as Don Rice. 8 Keiffer's employment status will be discussed hereafter. 9 McKibben testified that the Respondent refused'to negotiate on piecework or company rules. I deem it unnecessary to consider this matter as the complaint herein does not allege that the Respondent refused to bargain in violation of Section 8(a) (5) of the Act. io There is a conflict in the record as to which issues had been agreed upon at the close of this bargaining session. I deem it unnecessary to resolve this conflict. U Collins was at work that day but was not present when Rice talked to Keiffer, McKibben, and Brooks. There is conflicting testimony as to whether or not Collins was invited to attend. I deem it unnecessary to resolve this conflict. - 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD long as the Union was in the plant there would not be any piecework. He further stated that the employees "weren't bound by the Union" and that the "cards didn't mean anything." In addition, he stated that he had heard that there was talk of a strike, but if the employees struck they "would all be fired." 12 McKibben suggested that Rice should explain his position on piecework to all the employees.. Rice re- plied that he would consider it, then told Fisher, "I think I'll get in touch with Rector." 13 Keiffer, McKibben, and Brooks then left. Rice contacted Rector and asked him to come to the plant. Rector arrived in the early afternoon and con- ferred with Rice, Fisher, and Don Rice, and also with some or all of the four mem- bers of the local's negotiating committee.14 ' Fisher then shut off the machinery and had all the employees assembled in the lunch area. In addition to Rector, man- agement representatives who were at this gathering included Don Rice, Fisher, and two foremen.15 Either Fisher or Don Rice introduced Rector to the assembled em- ployees. Rector explained the Respondent's position with respect to piecework. A discussion of this subject ensued, in which various questions were asked by' the employees and answered by Rector and perhaps Don Rice. Rector also read and explained each of the proposed working rules, which were then discussed. On some occasions when objections were raised to a particular rule, Rector agreed to delete or amend it. McKibben stated that there were rumors going around that if the employees struck they would be fired, and asked if it were true. Rector replied that there were three types of strikes: wildcat strikes, in which the strikers could be dis- charged; economic strikes, in which the participants could be replaced; and unfair labor practice strikes, in which the strikers could neither be replaced nor discharged. McKibben then asked which of the three kinds it would be if the Respondent's em- ployees went on strike. After ascertaining the then-existing status of negotiations, Rector responded that it would be an economic strike and the participants could be replaced.16 In addition, Rector stated that the employees "really didn't have a union yet in a way" because they did not have a contract, and that this was their "final chance to withdraw from the Union." 17 The meeting lasted approximately 2 hours during working time, and the employees were paid for their attendance. Another bargaining session was held on August 31, but no final agreement was held at that time.18 That night Fisher telephoned employee Lucy Lemasters and stated that he had heard that there was going to be a strike. He added that she should "remember what was said at the meeting [of August 28] what would 12 The findings of fact regarding this discussion are based upon the credited testimony of Brooks, who impressed me as a forthright and candid witness, partially corroborated and amplified by the testimony of McKibben . Nothing in the versions of either Fisher or Keiffer substantially conflicts with Brooks' account. Rice denied stating that piecework would be abandoned or threatening employees with discharge if they went on strike. Rice's testimony regarding other matters contains some inconsistencies . In view of this and his demeanor on the witness stand , I consider him a less credible witness than Brooks and do not credit his denials in this regard. is There is a conflict in the testimony as to whether or not Rice might have suggested to Keiffer, McKibben, and Brooks that they contact Taggart. I deem it unnecessary to make a finding on this point. 14 There is some testimony indicating that Rector might have told some or all of the committee's members that they could get in touch with Taggart, and sought and obtained their permission to address the employees. However, I consider it unnecessary to make any findings regarding these matters. 16 Collins testified that Rice was also present . Rice denied this . In my opinion, it is immaterial whether Rice attended . I therefore need not, and do not, resolve this conflict. 16 The finding of fact regarding this statement by Rector is based upon the testimony of Don Rice, who impressed me as a candid and reliable witness, substantially corroborated by that of Fisher, Keiffer, employee Ada June Alkey, and Foremen Wallace Boers and Clarence Elwood Paugh, all witnesses for the Respondent . Brooks testified that Rector stated, "If we did go out on a strike we would be fired ." Her testimony was substantially corroborated by that of employees McKibben and Lucy Lemasters , both witnesses for the General Counsel. Rector himself, although present, did not testify. Don Rice and Brooks impressed me as equally credible witnesses . But as the burden of proof rests on the General Counsel, I credit Don Rice's version as the more accurate. 17 This finding of fact is based upon the credited testimony of Collins , not specifically denied. is There is a conflict in the testimony as to the precise issues still remaining in dispute at the close of this session . I consider this matter immaterial and therefore decline to resolve this conflict. SUPERIOR TOOL & DIE CO. 1379 happen to [the employees] if [they] pulled a strike." He further told Lemasters that "the doors would be open if [the employees] wanted to come in and go to work." 2. The strike On September 1 the Union struck the Employer's plant and many of the strik- ing employees participated in the picketing which accompanied the strike.19 The Respondent continued to operate its plant. The second shift was discontinued and the employees on that shift were transferred to the first shift. On September 8 the Union filed with the Board charges in Case No. 8-CA-1991 (not published in NLRB volumes), alleging that the Respondent had violated Section 8(a)(1),`/ (3), and (5) of the Act. On about September 10 the parties held a bargaining session attended by Mr. O'Brien, a representative of the Federal Mediation and Conciliation Service.20 On September 11 the Respondent filed with the Board charges in Case No. 8-CB-404 (not published in NLRB volumes), alleging that the Union had violated Section 8 (b) (1) of the Act. On September 15 and 16, despite the picket line, five employees returned to work: Keiffer, Ada June Aikey, Martha Harvey, Thomas Whitacre, and Marietta Tibbs. Keiffer rode to and from the plant in the automobile of Don Rice for about a week thereafter; 21 for about the same period Fisher transported the other three women in his car. Within a few days thereafter the four female employees named above sought legal advice from Tibbs' brother, Ralph J. Dalessio, Esq., regarding their desire to withdraw from the Union. They then wrote letters to the Union resigning their membership and so did some other nonstriking em- ployees. Keiffer also resigned as recording secretary of the local and was re- placed in that. capacity. Dalessio prepared a petition addressed to the Board seeking decertification of the Union. At the suggestion of the employees who had consulted him, he brought copies of this petition to the plant during lunch- time and explained it to the assembled employees in the lunch area. Aikey, Keif- fer, and Harvey aided in circulating the petitions and in obtaining the signatures of employees. Either that afternoon or the next, after working time, Dalessio returned to the plant, to pick up the signed petitions, and additional signatures were obtained, possibly outside the plant itself. In all, the petitions were signed by 15 rank-and-file employees and Clarence Elwood Paugh, a foreman. There- after, on September 21, Dalessio, as attorney for Tibbs and the other signatories, filed with the Board in Case No. 8-RD-198 (not published in NLRB volumes) a petition seeking to have the Union decertified as the bargaining agent of the Respondent's production and maintenance employees. Dalessio's fee was paid by Tibbs; other employees promised to reimburse her. On the following day, September 22, the Respondent withdrew its charges against the Union in Case No. 8-CB-404. On October 7 the decertification pe- tition of Tibbs and the other employees in Case No. 8-RD-198 was dismissed by the Regional Director as untimely filed. No appeal was taken. On October 13 the Respondent wrote to the employees still on strike as follows: We wish to inform you that a number of our employees participating in this economic strike have been permanently replaced. Due to the steel strike, we have not had jobs for anyone else. However, within the next five days we expect to have some jobs available for which we have applicants. We do not wish to discriminate against striking employees, but unless we receive applications for re-instatement, we will be forced to proceed to replace all economic strikers. We have been informed that the Union has lost its majority due to the economic strike and are, this day, petitioning the National Labor Relations Board to conduct an election to determine the matter. We sincerely regret that collective bargaining has resulted in this unfortunate situation, but hope it will be resolved without further hardship on anyone. 19 The Respondent contends that this was an economic strike . The Union characterizes it as an unfair labor practice strike but contends that the nature of the strike is im- material . The General Counsel takes no position regarding the nature of the strike. In my opinion, it is unnecessary to determine this issue. 20 There is a dispute as to whether or not O'Brien advised the union representatives to abandon the strike . I deem it unnecessary to resolve this conflict. 2i Don Rice testified that on the first morning Keiffer returned to work she ducked down below the level of the car window. Keiffer denied having done so. I deem it un- necessary to resolve this conflict. 614913-62-vol. 132-88 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the same date, the Respondent wrote to the Union as follows: We wish to advise that we have been informed that your union no longer represents a majority of our employees. We therefore, must conclude that your majority has been lost due to the economic strike and must take the position that we can no longer bargain with you until an election is held recertifying the majority unit. We have, this day, filed a petition with the N.L.R.B. requesting such an elec- tion and can assure you that we will rely upon N.L.R.B. to determine the issue. On the following day, October 114, the Respondent filed with the Board a petition in Case No. 8-RM-221 (not published in NLRB volumes), seeking an election to determine whether the Union still represented the Respondent's production and maintenance employees. On October 21, this petition was dismissed by the Regional Director as untimely filed. No appeal was taken. During the course of the strike, which lasted over 7 weeks, no employee who crossed the picket line sustained any injury or was physically assaulted-even by pushes, shoves, elbowing, or pinching. Nevertheless, the atmosphere was somewhat tense, especially after the employees named above returned to work. There were the familiar cries of "scab" directed by the pickets to the nonstrikers. Some of the women pickets were joined on the picket line, from time to time, by their husbands. Clarence Elwood Paugh, a foreman, sometimes cracked his whip-making a loud noise-in the presence of pickets. A blackjack and 'a hammer were on the seat of the car used by striker Flora D. Young and her husband, and there is evidence indicating that an unidentified picket had a knife. On the second or third day of the strike "outside" pickets attempted to impede Fisher' s ingress into the plant. Damage was done to the Respondent's truck and its trailer pushed or run over a hill. Nails were strewn on the plant's driveways.22 Fisher's car, enroute to the plant with Aikey and Tibbs inside, was run off the road by another automobile. Aikey received anonymous annoying telephone calls. Stones were thrown at the door of Keiffer's house. There is no probative evidence identifying the perpetrators of any of these destructive or violent acts. In specific instances, certain nonstrikers testified to threats of bodily harm made to them by named pickets. The pickets involved, however, denied the threats attributed to them. These matters will be discussed in more detail below. In any event, it is clear that in September Aikey and Keiffer, accompanied by Dalessio, complained to the county prosecuting authority with regard to threats allegedly made to them by Lemasters and McKibben. The prosecutor recorded the com- plaint, but took no further action. 3. Events from October 26 through December 27, 1959 On October 26 the parties executed a 1-year collective-bargaining agreement pro- viding, among other things, for an increase of 5 cents in the hourly pay rate. At the same time, the parties agreed that Collins would be recalled to work, and that the following employees would be placed on a preferential recall list, in order of seni- ority, to fill vacancies as they should occur: Flo Young, Lucy Lemasters, Juanita McKibben, Helen Richie, Ann Bagyi, Ann Brooks, Mary Jane Lau, Joyce Robertson, Walter Austin,23 Irene Royole, Ruth Selesky, and Sylvia Lyall. Thereafter the Respondent resumed operating on two shifts, recalled Collins to work, put the increased hourly rate into effect, and posted company working rules on its bulletin board.24 All picketing ceased. On October 28 the Respondent hired Ruby E. Orr, a male, to operate a punch press on the second shift. On October 29 the Union withdrew its charges against the Respondent in Case No. 8-CA-1991. During the first week after Collins' return, he was working at his machine. Rice approached him and stated that he did not think that the Union would work in the shop. There was some discussion of the fact that Collins had been recalled to a rd There is a conflict as to whether or not plant windows were broken. I deem it un- necessary to decide this issue. Austin, the only male on the list, had obtained employment elsewhere during the strike and had informed the Respondent that he did not care to return to the Respondent's employ. u There is a conflict as to whether or not the parties had reached agreement on these working rules. I do not consider it necessary to make a determination on this matter. However, I note in passing that the contract of October • 26 contains this sentence: "There were no work rules and regulations negotiated by the parties." SUPERIOR TOOL & DIE CO. 1381 different job classification than he had held bef re the strike. Rice remarked that Collins "wouldn't be there within a year, by the time they had the next election." 25 From the time of his recall on October 27 until his discharge on December 31, described below, Collins was the only union'member on the first shift. Robert Purk, an employee on the second shift, was also a member 2s Late in November, Rice informed Collins that Purk did not want to pay union dues and wanted to withdraw from the Union. Collins replied that he did not think that Purk could do so. Rice responded that he would "find out." In December Purk sent a letter to the Union attempting to withdraw his membership. However, he was still a union member at the time of the hearing, because the contract of October 26 bound him to remain in the Union?'i C. Interference, restraint, and coercion 1. Allegations of the complaint The complaint alleges, and the answer denies, that since August 28, 1959, the Respondent (through Rice, Rector, and other unnamed agents ) has "interfered with, restrained and coerced its employees by instigating opposition to the Union, urging and persuading its employees, and promising them benefits, to renounce the Union." 2. Statements made on August 28 and 31 a. By Rice It will be recalled that on the morning of August 28 Rice told Keiffer, McKibben, and Brooks that the employees "weren't bound by the Union" and that the "cards didn't mean anything." He thereby attempted to undermine the prestige of the employees' statutory bargaining agent and to stimulate opposition to the Union. In the same conversation, Rice warned that as long as the Union was in the plant there would not be any piecework and that if the employees struck they "would all be fired." These statements clearly constituted coercive threats of reprisal for engaging in protected concerted activities 28 The complaint does not allege, nor does the General Counsel contend, that this conference between Rice and "three rank-and-file employees" 29 constituted an un- lawful attempt by the Respondent.to bypass the Union and to bargain directly with three members of the negotiating committee in the absence of Collins and Taggart, the other two members. Accordingly, the question as to whether this constituted "negotiation" and the reasons for the nonattendance of Collins and Taggart need not be discussed, as these matters are not properly before me.30 b. By Rector It has been found that Rector, when addressing the assembled employees on the afternoon of August 28, told them that they "really didn't have a union yet in a way" and that this was their "final chance to withdraw from the Union." Like Rice's similar statement to Keiffer, McKibben, and Brooks earlier that day, these remarks of Rector were reasonably calculated to encourage defections from the Union, and to undermine its authority. 25 The findings of fact regarding this conversation are based upon Collins' credited testi- mony. Although Rice denied stating that he would penalize anyone because of participa- tion in the Union, he neither specifically denied that such a conversation took place with Collins early in November, nor gave his version of it. es Collins and Taggart testified that Park was the only union member in the plant other than Collins. However, the contract of October 26 provides that employees hired thereafter shall, as a condition of employment, join the Union "on or after the 30th day following" their hire and thereafter retain their membership . ( Compare Kaiser Aluminum d Chemical Corporation, 98 NLRB 753.) Therefore it may well be that Orr, who was hired on October 28, joined the Union before the end of November and remained a mem- ber until he quit the Respondent's employ in February 1960. I accordingly find that Park was either the only union member on the second of two. shift at this time, or was one 7 The contract contains a maintenance-of-membership provision. 3 Editorial "El Impartial," Inc., 123 NLRB 1585, 1587, 1600. 29 The quoted words are the General Counsel's. See his position regarding Keiffer's employment status, below. 11 Crookston Times Printing Company, 125 NLRB 304. 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rector's treatment of the subjects of piecework and working rules amounted to direct negotiation with the employees at a time when these same matters were being negotiated between the Respondent and the Union. Although the complaint does not specifically allege that any such conduct constituted an unfair labor practice, the General Counsel so contended, and the issue was fully litigated at the hearing.31 I find merit in the General Counsel's contention that the Respondent bypassed the Union in this respect, especially as this negotiation occurred in the context of Rector's attempt to encourage defections from the Union 32 During the meeting, in response to McKibben's questions, Rector explained that if the employees struck it would be an economic strike, subjecting them to possible replacement. It is of course well settled that an employer may replace economic strikers with impunity. Normally he may state his intention of doing so without violating the Act,33 but where such a statement is made in the context, of other remarks reasonably calculated to undermine the employees' statutory bargaining agent, the conduct is proscribed.34 And here Rector's statement concerning replace- ment was uttered at the same meeting at which he illegally bypassed the Union and attempted to encourage the employees to withdraw from it. Hence it was coercive and illegal. Rice denied that the meeting of the employees on August 28 was called by any representative of the Respondent, testified that he (Rice) "did not cause it or order it" and that it was called without his previous knowledge, but admitted that "knew that it might take place." However, this must be considered in connection with Rice's later testimony that he asked Rector to come to the plant "and see what he could do" and that he conferred with Rector before Rector addressed the employees. In any event, the meeting was held on the Respondent's premises during working time, and was attended by some of the Respondent's top manage- ment representatives. Indeed, either Fisher or Don Rice introduced Rector. Under these circumstances, the Respondent's failure to repudiate Rector's remarks consti- tutes an adoption or ratification thereof. It is accordingly found that Rector addressed the employees on August 28 as the Respondent's agent acting within the scope of his actual or apparent authority, and that therefore the Respondent is accountable for his conduct in so doing. Even assuming that it was not the Respondent which initiated the meeting, this would not require a different result, for Rector and other representatives of the Respondent clearly dominated the discussion.35 c. By Fisher McKibben testified that on the morning of August 28 Fisher was "mad" and told her, in the hearing of employee Flora D. Young, that "you know, if you go out on strike . . . you're all going to be fired," and then "stormed off." Although Young was a witness for the General Counsel, she did not testify regarding this incident. Fisher testified that he talked to McKibben that morning, but denied that he ever told anybody that the employees would be discharged if they struck. Neither McKibben nor Fisher impressed me as a sufficiently reliable or accurate witness to warrant crediting the uncorroborated testimony of one as against the other. I therefore credit neither. As the burden of proof is upon the General Counsel, I shall refrain from finding that Fisher made the statement attributed to him by McKibben. It has been found that, on the evening of August 31, Fisher told Lemasters to "remember what was said at the meeting [of August 28], what would happen to [the employees] if [they] pulled a strike." This was an iteration of Rector's state- ment to the assembled employees that economic strikers could be replaced-a re- 81 Carolina Mirror Corporation, 123 NLRB 1712, footnote 1 ; and Monroe Feed Store, 112 NLRB 1336-1337. 32 Harcourt and Company, Inc., 98 NLRB 892, 894-895; and Giustina Bros Lumber Co, 116 NLRB 700, 727. Even assuming, without deciding, that the committee members gave Rector permission to address all the employees, this of itself did not authorize him to bargain directly with the employees. Moreover, as the United States Supreme Court said in a similar situa- tion : "Petitioner was not relieved of its obligations because the employees asked that they be disregarded." Medo Photo Supply Corporation v. N.L.R B., 321 U.S. 678, 687. But compare Leader News Co, Inc, 98 NLRB 119. 81 Louis Natt, d/b/a Mrs. Nott's Bakery, 44 NLRB 1099, 1108; and McLean-Arkansas Lumber Company, Inc, 109 NLRB 1022, 1039-1040. u The Texas Company, 93 NLRB 1358, 1359-1362. 35 Giustina Bros. Lumber Co., supra, at 726 SUPERIOR TOOL & DIE CO. 1383 mark found above to be proscribed-and stands on the same footing. Therefore it was coercive. But Fisher's additional remark at that time, that "the doors would be open if [the employees ] wanted to come in and go to work " is, in my opinion, nothing more than a statement that the strikers were free to return to work and thus within the realm of permissible persuasion protected by Section 8(c) of the Act 36 3. Picket line statements . a. By Rice Two or three days after the strike began, Rice came out to the picket line and stated to Brooks and Keiffer that he "was depending on six girls to walk in the first morning of the strike" because he expected "the rest of them would follow" and that he was "quite disappointed" that this had not occurred. A few days later Rice again came out to the picket line and asked Keiffer , in the presence of Brooks and Brooks' husband, "why [the employees] turned the contract down?" Keiffer explained why. Rice then stated that "before all this union started [the employees ] were all going to get a 10-cent raise. But now that it all started . . . 5 cents was all that [they] were going to get." He added that "starting the first of the week . . . he was going to hire new help until he had all of [the strikers] replaced." The General Counsel contends that these two picket line conversations constitute "part of a continuing interference with these employees in their con- certed activities of picketing and striking." In my opinion, the first conversation described above consisted merely of the exercise of free speech. The second con- versation, however, stands on a different footing. Viewed in the light of Rice's threats of August 28 to the same two employees (Keiffer and Brooks), his picket line statement that before the Union started the employees were going to receive a 10-cent raise, but "now that it all started" 5 cents would be all they would get constituted an additional threat of reprisal clearly intended to inhibit further con- certed activities 37 b. By Fisher On September 4 Fisher went outside the plant with paychecks and paid off the employees on picket duty, as they all had some pay coming. He handed McKibben her paycheck with a slip on it reading: "Paid in full to date." McKibben asked him: "What does this mean, Dick? Am I fired?" There is a conflict as to what Fisher answered. McKibben testified that Fisher at first replied: "That's right. You're fired," and returned to the plant, but soon same out again and told her: "No. It is just what it means. Just exactly what it says there, paid in full." According to Fisher, his first and only answer to McKibben's question was: "Juanita, it means exactly what it says." As mentioned above, I do not consider either McKibben or Fisher a reliable or accurate witness. Accordingly, it is found that the General Counsel has not sustained his burden of proving that this incident occurred as related by McKibben. There remains the question of whether the words "Paid in full to date" connoted that McKibben was discharged. Although the wording may perhaps be somewhat ambiguous, I am unable to find any compelling or persuasive reason for placing such an interpretation upon the slip, particularly as McKibben's name appears on the preferential recall list agreed upon by the parties in October. 4. The status of Betty Keiffer a. Facts Betty Keiffer began working for the Respondent early in 1952. Like other em- ployees, she performed both hourly paid work and piecework. On July 20, 1955, when she was a punch press operator on the first shift, she received the following letter from Rice: Our reason for having new employee trainers is to get new employees started off to their best advantage and that they know as quickly as possible just what they are expected to do and that we find out just as quickly whether they are able or willing to do the type of work required. 86 Ford Radio & Mica Corporation, 115 NLRB 1046 , 1066, remanded 258 F. 2d 457 (C.A. 2), Supplemental Decision 122 NLRB 34; and McLean-Arkansas Lumber Company, Inc, supra, at 1040 37 This is so regardless of Keiffer's employment status, for Brooks was undoubtedly an employee. 1384 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will be their duty to teach the new employee the proper and most effective way to operate their machine and perform their job. This includes instruction about quality control and constant inspecting of the part in operation. It is expected that you will closely watch the new operator and form early opinions as to each one's ability and assist your foreman in assigning jobs to those who are best suited to run certain types of jobs. We feel that this new procedure will make this a better place to work and will assist production output and lessen the confusion of new employees. You will naturally now be in a position where a great many of the employee problems will rest on your shoulders and we feel that you are tolerant and understanding enough to work out these problems on a fair and unbiased basis. Please always feel free to discuss any of your problems with your foreman, Mr. Saucier, or myself.38 A few days later, Keiffer's hourly rate was increased from $1.41 to $1.65. She never received any other individual increase in her hourly rate. By the time of the hearing, due to general increases, Keiffer's hourly rate had risen to $1.97, the maximum permitted by the contract of October 26 for press operators. Her piecework rate, of course, remained at all times the same as that given to other press operators. After receiving the above-quoted letter, Keiffer continued to operate a punch press, but in addition trained new employees on different jobs, that is, she instructed them in the techniques of operating machines. As Rice described it, "for the first week, or a few days, for the new employees, she set them up and showed them how to get into the swing of a new job." Rice estimated that, during a new employee's first week, Keiffer spent an average of from one-half hour to an hour daily instructing the new employee.39 Keiffer punched the timeclock like other rank-and-file employees and received the same vacation benefits as other employees with similar seniority. She had no authority to hire, discipline, transfer, promote, or discharge employees, or effectively to recommend such action. Nor did she have power to grant employees time off. Her immediate superior was Wallace Boers, the department's foreman. When Fisher desired to check on the progress of new employees he consulted Boers, rather than Keiffer. There is no evidence that Boers or any other management repre- sentative sought Keiffer's opinion respecting the work of any other employee. Keiffer participated in the organization of the Union 40 Before or on the same day of the Board election of July 17, 1959, Keiffer exhibited the letter quoted above to Taggart, McKibben, and employee Mary Jane Lau.41 After reading it, Taggart told Keiffer that there was nothing to keep her from voting. She did, in fact, vote in the election without challenge .42 Thereafter, as has been noted, she became recording secretary of the local and a member of its negotiating committee. As such, she participated in the early bargaining meetings between the Union and the Respondent. She went on strike on September 1 and engaged in picketing. Shortly after attending the negotiating session of September 10, she apparently underwent a change of heart respecting the wisdom of the strike. Over the weekend of Sep- tember 12 and 13 she talked to a number of strikers, advised them of her intent to abandon the strike, and attempted to persuade them to take the same action. As related above, she was one of the five strikers who returned to work on September 15 and 16, and thereafter resigned from the Union. She was also in the group of four women who consulted Dalessio and aided in circulating the decertification petitions among the nonstriking employees. Moreover, she was among the non- strikers for whom the Respondent provided transportation to and from the plant for a while after they abandoned the strike. 88 At the same time an identical letter was sent to Marietta Tibbs, a power press operator on the second shift 19 Presumably Tibbs performed the same function on the second shift until women were excluded from that shift. Then Tibbs was transferred to the first shift. 40 There is a conflict in the testimony, which I do not resolve, as to whether or not Keiffer signed a membership application There is also testimony indicating that she signed an authorization for the Respondent to check off her union dues, and that her name appears on the local's charter. 41 There is no dispute that some letter from the Respondent was shown to Taggart, McKibben, and Lau. Taggart , McKibben , and Lau testified that the letter exhibited to them was a different one. As the evidence is convincing that the letter of July 20, 1955, was the only written communication addressed to Keiffer by the Respondent, I am con- vinced, and find, that they were in error in this respect As The results of the election were such that Keiffer's ballot was not determinative SUPERIOR TOOL & DIE CO. 1385 About a week or two after returning to work , Keiffer during working hours shut off her punch press, removed a document from the bulletin board , left the plant with the document, and showed it to Lemasters and Brooks, who were picketing 43 Then she returned to the plant . Although admittedly this was a violation of the Respond- ent's working rules,44 Keiffer was not reprimanded for her actions. b. Contentions of the parties The General Counsel contends that Keiffer "was acting at least as a lead employee with some responsibility of direction," and therefore was a supervisor within the meaning of the Act.45 He further argues that, although Keiffer was not an agent of the Respondent while she was participating in the bargaining sessions as a member of the Union's committee, "there may have been a change . a slow change" and that thereafter (presumably after the session of September 10) she became an agent of the Respondent, as a result of which the Respondent is accountable for her actions. The Union urges that Keiffer was at all material times a supervisor within the meaning of the Act 46 and an agent of the Respondent. Finally the Union contends that, whether Keiffer was a supervisor or not , she worked "in the interest of" the Respondent, and the Respondent accepted the "fruits" of her efforts and "acquiesced in them," thereby rendering itself liable for her conduct . The Respondent, con- versely, maintains that Keiffer was at all material times a rank-and-file employee, denies the existence of any agency relationship, and contends that it is not responsible for her actions. c. Conclusions The General Counsel admitted that "the evidence is perhaps scanty as to a full supervisory status under the Act," and the Union's attorney candidly stated that he was "not particularly concerned over whether she [Keiffer] was or was not tech- nically a supervisor." The argument that Keiffer possessed supervisory status rests on the assertion that she had "some responsibility of direction," presumably over new employees for a limited period after their hire. In my opinion, this is not enough. There is nothing to show that her duties with respect to new employees were anything other than routine and sporadic . In view of the fact that Keiffer was not entrusted with authority to hire, discipline, transfer, or discharge employees, or effectively to recommend such actions, it is found that the General Counsel has failed to prove that she was a supervisor within the meaning of the Act at any material time.47 Let us turn then to the contention that Keiffer was an agent of the Respondent. The General Counsel acknowledges that she was not cloaked with the indicia of such agency prior to the bargaining session of September 10. Indeed , as she had been selected by the Union as one of its representatives , it would seem reasonable to conclude that at the negotiating meetings she was an agent of the Union rather than of the Respondent. But, argues the General Counsel, a change took place thereafter, evidenced by (1) the Respondent's providing of transportation for Keiffer to and from the plant for a while after she resumed working, and (2) the incident when she left the plant during working hours and showed a document to some pickets.48 The furnishing of transportation is entirely too trivial a matter on which to base a finding of agency. The occasion when Keiffer left the plant to exhibit a 43 I need not, and do not, make any findings as to the nature or contents of this document, or regarding the conversation at this time between Keiffer , Lemasters, and Brooks. u The posted working rules list as a "major offense" subjecting the offender to a 3-day layoff • "Leaving the plant during working hours without permission from your supervisor " 45 The General Counsel takes no position regarding the employment status of Tibbs. 48 This apparently represents a change in position . Taggart testified that until the instant hearing the Union's official attitude had been that Keiffer was eligible for union membership and within the bargaining unit defined in the election agreement 47Compare Cousins Associates, Inc., 125 NLRB 73, enfd. 283 F. 2d 242 ( C A. 2). In thus concluding I have not relied solely on the fact that Keiffer voted in the election without challenge. 4 Arguments based upon Kefffer's statements or actions must be put aside as im- material . The existence of an agency relationship cannot be proved by the conduct of the agent, unless other evidence shows that the conduct in question was within the agent's actual or apparent authority . Breckenridge Gasoline Company, 127 NLRB 1462, footnote 4 : and Local 560, International Brotherhood of Teamsters, etc. (The Pennsyl- vania Railroad Company), 127 NLRB 1327 , footnote 14. 1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD document to the pickets likewise falls short of establishing convincing evidence of any agency status. For there is no proof that any supervisor knew in advance what Keiffer intended to do, or learned of her actions afterwards. Hence, it cannot be said that her absence from the plant was permitted by the Respondent. Even if, contrary to the above, it had been shown that Keiffer's excursion was allowed, this in itself would not make the Respondent liable for each and every statement she made or action she took during her absence from the plant. It follows, and I find, that the General Counsel has failed to establish that Keiffer acted as an agent of the Respondent at any material time. And the only "change" that appears to have taken place was that of Keiffer's personal attitude toward the Union and the strike, rather than any alteration in her employment status. There remains the argument of the Union that the Respondent is chargeable with 'Keiffer's acts because she worked in its interests, and it took advantage of and accepted the fruits of her efforts. Presumably this refers to (1) her attempts to persuade others to abandon the strike, and (2) her part in the circulation of the decertification petitions. The "fruit" of the first series of acts mentioned above was that other strikers returned to work. But without violating Section 8(a)(3) of the Act, the Respondent could hardly have refused to take back economic strikers who sought unconditional reinstatement. Similarly as Keiffer's right to circulate the de- certification petitions on her own time may well have been protected by Section 7 of the Act, had the Respondent interfered, it might have subjected itself to a charge of violating Section 8(a)(1) of the Act. Accordingly, I cannot follow the logic of the contention that the Respondent "accepted" or took advantage of the "fruits" of Keiffer's efforts. And the answer to this contention goes even deeper. Under the original Wagner Act, an employer was held responsible for the conduct of any person acting in his interest. But in the amendments of 1947 this was changed by deleting the words "in the interest of," substituting therefor the words "as an agent," and adding a new subsection defining agency. In discussing this matter, the United States Court of Appeals for the Ninth Circuit recently said: The purpose in holding employers chargeable only for the acts of their "agents" rather than for the acts of any person who acted in their interests was to limit an employer's responsibility to acts done within the actual or apparent scope of the acting person's authority.. . And Senator Taft, the life-force behind the bill as enacted, repeatedly remarked on the floor of the Senate that common law rules of agency were to govern the question of who acted for whom for pur- poses of determining culpability under the Act. . . . Consequently, the respon- sibility of ... respondents for the acts of the [purported agents] . . . must be determined in light of the general law ofagency 49 This excellent and scholarly analysis is dispositive of the Union's argument bot- tomed upon Keiffer acting in the Respondent's interest. As it has been found that she was not the Respondent's agent under established agency principles and the Act's definition of agent, the Respondent cannot be held accountable for her actions. 5. The decertification petitions The General Counsel and the Union maintain that the Respondent encouraged employees to sign the decertification petitions by permitting the petitions to be circu- lated on working time, and allowing Dalessio to enter its premises to solicit signa- tures thereon. In support of this position, the General Counsel claims that the meet- ing at which the petitions were first circulated extended beyond the lunch hour into working time, because the testimony that it did not so extend is incredible. In the absence of any affirmative evidence that the meeting in question lasted beyond the lunch hour, I do not consider the testimony that it took place entirely within the lunch hour so unlikely that it "carries its own death wound." 50 Any finding that the meeting lasted into working time would be "pure conjecture." 51 I decline to so find. So far as Dalessio's presence at the plant is concerned, there is no evidence that the Respondent knew of or approved it. Therefore it cannot be said that the Re- spondent authorized it. And even if, contrary to the above, it had been shown that the Respondent gave permission for Dalessio to speak to the employees on 49 N.L R B. v. International Longshoremen's and Warehousemen's Union, Local 10, et al ( Pacific Maritime Assn. ), 283 F. 2d 558 (C.A. 9). ON.L.R.B. v. Robbins Tire & Rubber Company, Inc, 161 F 2d 798, 800 (C.A. 5). 5t American Dredging Company, 123 NLRB 139 , 142, enfd as modified 276 F. 2d 286 (CA. 3). SUPERIOR TOOL & DIE CO. 1387 nonworking time, that would not in itself constitute a violation of the Act, absent evidence that similar privileges were requested by and denied to the Union's representatives. It will be recalled that the petitions were signed by one supervisor-Clarence Elwood Paugh. No party bases any argument on this fact, nor has any authority been cited regarding the effect of a supervisor's signature on such petitions. I con- clude that the presence of the signature of a single minor supervisor is not sufficient to support a finding that the Respondent violated the Act, where as here there is no showing that the Respondent instigated or encouraged the preparation or circulation of the petitions, or that the Respondent knew of or ratified Paugh's act, or made it appear that Paugh was acting for the Respondent when he signed the petitions. Another facet of the petitions should be mentioned. Keiffer, who helped circulate them, has been found to have been neither a supervisor nor an agent of the Re- spondent. But even if she had been a supervisor, as she voted in the election without challenge and was included in the bargaining unit, her actions in so doing would not necessarily have been attributable to the Respondent.52 No significance can reasonbly be attached to the fact that the Respondent tem- porarily supplied transportation to Aikey, Keiffer, and Harvey, who aided in the circulation of the petitions. There is no other probative evidence linking the Respondent with the petitions. I conclude that the General Counsel has failed to , furnish convincing proof of the Respondent's connection therewith. 6. The Respondent's letters of October 13 It is well settled that a Board certification must be honored for a reasonable period, ordinarily 1 year, unless there are unusual circumstances present.53 Therefore the Respondent's letter to the Union on October 13-only a few months after certifica- tion-breaking off negotiations "until an election is held recertifying the majority unit" may well have constituted a violation of Section 8(a)(1) of the Act, as no bargaining impasse appears to have existed. And this is so even if the Respondent thereafter bargained with the Union-thus in effect repudiating the letter-for the Respondent thereby needlessly delayed the consumation of an agreement.54 However, the General Counsel does not contend that this letter violated the Act, nor apparently does he maintain that it unduly prolonged the strike and thereby transformed it into an unfair labor practices strike. Such issues are accordingly not before me. I find, however, that the letter in question clearly demonstrated the Respondent's bad faith toward the Union.55 Now let us consider the letters sent by the Respondent to the strikers on October 13. The General Counsel argues that these letters, combining notice of the Respond- ent's intent to replace the strikers with a statement that the Union had lost its majority, constituted in effect a threat to discharge the strikers, and hence was vio- lative of Section 8(a)(1) of the Act. While a mere declaration that economic strikers will be replaced is not ordinarily proscribed, the letters of October 13 can- not be viewed in a vacuum; reference must be had to the background in which they were sent. It has been found that the Respondent had engaged in numerous acts of interference, restraint, and coercion of its employees both before and during the strike. These included attempts to cause defections from the Union. And on the very same day, October 13, the Respondent had further undermined the Union's status by severing bargaining relations during the Union's "certification year" and in the absence of any impasse. In this context, I consider the letters of October 13 to the strikers as tantamount to a coercive threat to discharge them if they persisted in striking, in violation of Section 8 (a) (1) of the Act. 7. Rice's statements to Collins It will be recalled that during the first week after the end of the strike, Rice told Collins that Collins "wouldn't be there within a year, by the time they had the next 5a Breckenridge Gasoline Company, supra ; and Cosmopolitan Studios, Inc, 127 NLRB 788. Allen-Morrison Sign Co., Inc., 79 NLRB 903, cited by the General Counsel and the Union, is distinguishable, for there the supervisors in question were not bargained for as part of the rank-and-file group Compare American Dredging Company, 71 NLRB 401 ; and The Hartford Courant Company, 64 NLRB 213 63 Ray Brooks v. NLRB., 348, U.S. 96. 54 N.L R B. v E A. Taormina, d/b/a Taormina Company, et al, 207 F. 2d 251, 254 (C.A 5). ss N.L R B. v. E A. Taormina, d/b/a Taormina Company, et al, supra, at page 255 1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election." As this occurred in a conversation concerning the Union, it amounted to a veiled threat to discharge Collins because of his adherence to the Union, and was coercive. The General Counsel and the Union further contend that Rice's remarks to Col- lins regarding Purk's desire to get out of the Union indicated Rice's "eagerness to assist this employee in his withdrawal from the Union" and "that he would further assist Purk." Such an interpretation of Rice's conduct in this regard would be strained and unwarranted. I find no merit in this contention. 8. Conclusions I conclude that, at all times since August 28, 1959, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. This finding is based only upon the following acts: (a) Rice's statements to Keiffer, McKibben, and Brooks on the morning of Au- gust 28 that so long as the Union was in the plant there would be no piecework, that the employees "weren't bound by the Union," and that if the employees struck they "would all be fired." (b) Rector's direct negotiations with the assembled employees on August 28 con- cerning piecework and working rules, his warning that if the employees struck they could be replaced, and his assertion that the employees "really didn't have a union" and this was their "final chance to withdraw from the Union." (c) Fisher's admonition to Lemasters on August 31 to "remember what was said at the meeting what would happen to [the employees] if [they] pulled a strike." 1(d) Rice's picket line statement to Keiffer and Brooks in September that "before all this union started [the employees] were all going to get a 10-cent raise. But now that it all started . . . 5 cents was all that [they] were going to get," and his assertion that he intended to hire new employees beginning the next week "until he had all of [the strikers] replaced." (e) The letters sent to the strikers on October 13 warning them that they would be replaced, and stating that the Union had lost its majority status. ,(f) Rice's threat to Collins in November that Collins "wouldn't be there within a year, by the time they had the next election." It is further found that the Respondent has, since July 1959, demonstrated its an- tipathy toward the Union and its desire to rid itself of the Union. This conclusion is bottomed upon the unfair labor practices found above and the following additional conduct: .(a) Rice's statements to employee Walter R. Austin, in July, referred to below, that "before this was all over" he was going to dismiss some employees, and that "he was going to get rid of the Union at the end of the year." 56 (b) The Respondent's October 13 letter to the Union breaking off bargaining relations.67 D. The discharge of John D. Collins 1. Facts John D. Collins was first employed by the Respondent in 1955. He was a satis- factory worker and was described by a number of witnesses as "very quiet" and "gentle." He joined the Union and became president of the local and a member of its negotiating committee. As such, he attended bargaining sessions. In July 1959 Rice told employee Walter R. Austin that "before this was all over that some people w Although no finding of unfair labor practices may be based upon conduct occurring more than 6 months before the service of the charge, such conduct may be relied upon for background purposes in evaluating conduct occurring within the limitation period. N.L R.B. v. E. L. Dell, Jr, Trading as Waycross Machine Shop, 283 F. 2d 733 (CA. 5) ; and Fetzer Television, Inc, 129 NLRB 660, footnote 36 in Intermediate Report. 54 In reaching this conclusion I have not relied upon other factors urged by the General Counsel and the Union, such as Fisher's alleged threats of reprisal in July, the filing of charges against the Union in Case No 8-CB-404, the filing of the petition in 'Case No 8-RM-221, and the hiring of Orr on October 28. The Respondent, of course, had a legal right to resent the Union. See N.L R.B. v. T. A. McGahey, Jr., et at, d/b/a Columbus Marble Works, 233 F. 2d 406, 409 (C.A. 5). Therefore the finding of union animus is made as a simple statement of existing fact, and not critically. But, as pointed out in Mcaahey, this animus may not legally give rise to conduct violative of the Act. SUPERIOR TOOL & DIE CO. 1389 employed there he was going to get rid of, dismiss. And John Collins was one of them.,, 58 Collins was at work on August 28 but was not present that morning when Rice conferred with Keiffer, McKibben, and Brooks. When the strike began, Collins was a diesetter earning $2.30 per hour. He participated in the strike and the picketing,59 attended bargaining sessions during the strike, and signed the contract of October 26 as one of the Union's representatives. Collins was recalled to work at the end of the strike, but was not assigned to his old job as diesetter. Instead, he was employed as a punch press operator on the first shift at a wage of $1.97 per hour60 Although Collins was the only member of the Union on the first shift, no incident occurred and no unpleasantness developed during the 2 months immediately following his recall. On the morning of December 28 Collins was operating a punch press. Clarence Richard Paugh, the stock boy, complained to Collins about the way some of the seat frames were piled on the skids. Collins replied that he (Collins) had not put the seat frames there, that he had just started that morning, and the seat frames had been left there by someone on the second shift.81 Collins then turned his back on Paugh to resume working. What happened thereafter is a matter of dispute : Collins testi- fied that he was suddenly hit on the head from behind, which staggered him, and that at the time Paugh was the only person behind him or close enough to hit him. Paugh denied striking Collins. Paugh's testimony was corroborated in this regard by that of Aikey, Keiffer, and Tibbs. Collins, jumping up and down, yelled to Aikey: "Did you see him hit me?" Aikey, was -8 or 10 feet from Collins, either ignored the remark or replied in the negative. Collins then left his place of work and reported the matter to Boers. 62 His face was flushed, he was holding his neck on the side, and he stated that he was going to visit a doctor. Don Rice appeared and Collins told him he "had an awful headache" and wanted to go home. Don Rice gave his permission . Collins left and later that day consulted a physician, Dr. Earl A. Simendinger, who said he could find no external evidence of injury but nevertheless gave Collins some pills and instructed him to apply heat to the back of his neck. Rice received a report from Boers that Collins claimed that Paugh had struck him, had stated that he had a headache and was going home, and had left, saying the Re- spondent would hear from him later. Rice then took the following steps to investi- gate the occurrence, all on December 28: He asked Paugh if he had hit Collins as Collins claimed, and Paugh denied it, saying "I'm not even mad at anybody." He then asked Paugh if he and Collins had any quarrel or misunderstanding, which Paugh also denied, adding that "he didn't even remember whether he spoke to John [Collins] this morning or not." He questioned Aikey as to what she knew about the incident. She replied that she had been facing Collins, about 9 feet from him, and could have observed whatever happened, unless otherwise distracted, but saw no blow struck, and the first she knew about it was when Collins hollered: "Did you see him hit me?" He contacted Tibbs, who claimed that she was in a good position to see what was going on, that Paugh was working on a skid, stooped with both hands occupied, and ss This finding is based upon Austin's credited testimony.,, Rice 'denied ,generally stating that he would penalize any employee because of participation in a union, but did not otherwise deny Austin's testimony. w Aikey testified that at the union hall before the strike Collins stated , in the presence of McKibben, Lau, and Lemasters , that he was in a good position to cause accidents be- cause he was a diesetter. Keiffer testified that while she was picketing Collins told her in the presence of McKibben , Lau, Young, and Brooks : "If you or anybody else goes back into work before this thing is settled , when I get back I'll take care of you because I'm in a good position to do it. I'm a die setter and I can take care of it." Collins denied that he ever made such statements , either at the union hall or on the picket line. His testimony in this regard was corroborated by that'of McKibben Based on my observa- tion of the witnesses , I credit Collins' denials and find that he did not make the state- ments attributed to him by Aikey and Keiffer. In this connection it is significant that, although complaints were made to the county prosecutor regarding Lemasters and McKibben. no complaint appears to have been made concerning Collins' conduct. 80 The General Counsel does not contend that the Respondent discriminated against Collins by recalling him as a press operator , rather than as a diesetter. 61 The findings of fact regarding this conversation are based upon Collins ' uncontra- dicted testimony. °° According to Boers, Collins demanded that Paugh be discharged. Collins denied making such a demand 1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that as she was watching Paugh she heard Collins ask "Did you see him hit me?" but she saw no blow struck. He asked Kieffer if she had observed anything. She answered that she had not seen Paugh hit Collins, and that if such an event had taken place "she certainly would have seen it." He telephoned to Dr. Simendinger and apparently inquired about Collins' con- dition.63 He asked Dr. Simendinger to send him a letter confirming the telephone conversation.64 On December 29, Rice had a telephone conversation with Collins. Collins stated that Paugh had hit him from behind. Rice replied that he wanted Collins to come to the plant so that he (Rice) could ascertain the facts. He asked Collins when he was going to come back. Collins responded that he was still having headaches and that he was not sure exactly how soon he would feel sufficiently recovered to resume working, but indicated that it would be "in the near future." 65 On December 30 Collins telephoned to Boers and reported that he would re- turn to work the next day. Accordingly, on December 31, Collins reported for work before starting time, and Boers assigned him to a press. The other em- ployees had, as was their custom, gathered around the lunch tables for coffee before commencing work. There were about 20 employees present, of whom 5 were women. When they saw Collins come in, they decided among themselves that they would not work with him. The starting bell rang, but the employees remained seated at the lunch tables instead of going to their machines. Boers came over to them and asked what was wrong. Aikey replied that she was afraid to work with Collins because he might try to "frame" her; Kieffer, said she had been standing there where she could see it and she did not believe Collins had been hit; employee Arthur Hohl declared he did not want to take a chance that Collins "would try to pull some sort of a deal" on him "like he pulled on Clar- ence"; and Tibbs and others replied that they too refused to work with Collins for the same reason. Boers reported the matter to Rice. Rice came out of his office and asked the employees collectively why they felt that way about Collins, especially as they had been getting along with him. Hohl replied that all the employees felt that Collins had tried to "frame" Paugh and might try the same thing on someone else.66 Aikey, Tibbs, Keiffer, and others expressed similar sentiments. Rice pointed out that they were making things difficult for him and urged them, for his sake, to go to work. He warned them that they were jeopard- izing their jobs.87 but they refused to work until Collins left. Rice then sum- moned Collins to the office and said: "John, people won't work with you." When Collins asked: "What am I going to do?" Rice replied: "So you go on home." Collins did so. The other employees thereupon began to work.68 A short while later Collins was called in again and Rice handed him a separation notice which read: "Discharged for just cause. Because of extenuating circumstances the em- ployees refused to work with him." At the time Rice delivered this to Collins, Rice stated that "that was all he could do because the people wouldn't work" with Collins. A few -days later Rice furnished to Collins a letter of recommendation which read in part, Mr. Collins is a hard, conscientious worker and his reasons for leaving our employ have nothing to do with his ability to perform his job. Collins has not-worked for the Respondent since. ss The substance of the doctor's response was excluded as privileged under the physician- ,patient rule. 84 Collins claimed his privilege as to the contents of this letter, and it was accordingly excluded In any event, it was not received by Rice until January 4, 1960, after Collins' discharge, and therefore could not have influenced the discharge. es Rice testified that in this conversation Collins demanded that Paugh be discharged Collins denied making such a demand. 66 Rice at first testified that Hohl acted as a spokesman for the group , but later testified that "they all answered in unison" and there was no particular leadership and no spokesman. 61 The posted working rules list as a "major offense" subjecting the offender to a 3-day layoff : "Deliberately restricting production " 68 The employees began working from 8 to 12 minutes after starting time, but were not "docked" for this idleness. Rice explained that the Respondent's policy is not to "dock" employees for periods of less than 15 minutes. SUPERIOR TOOL & DIE CO . 1391 2. Contentions of the parties The General Counsel contends, the complaint alleges, and the answer denies, that the Respondent discharged Collins because of his union activities and be- cause of the demands or threats of the antiunion group of employees. In this connection the General Counsel and the Union maintain that the employees' concerted refusal to work with Collins on December 31 was not spontaneous, but on the contrary was instigated and encouraged by the Respondent; that even if this was not so, Rice failed to make an adequate investigation of Collins' accu- sation against Paugh, before deciding to discharge Collins, and finally that regard- less of the extent of the Respondent's efforts to persuade the employees to re- turn to work, the Respondent violated the Act by ultimately giving in to their demands that Collins had to go. The answer denies that Collins was discharged on December 31, but at the hearing the Respondent appears to have admitted the discharge. Indeed, Rice testified that he alone made the decision to discharge Collins, and that this was based upon (1) Rice's belief that Collins had falsely accused Paugh, and (2) the adamant refusal of the other employees to work with Collins. 3. Conclusions The record does not support the contention of the General Counsel and the Union that the Respondent "engineered and instigated" the concerted refusal of its employees to work with Collins 69 On the contrary, the evidence is clear, and I find, that the employees had no advance knowledge that Collins would be back on December 31. Moreover, no representative of management has been shown to have urged the employees to take the action they took. The General Counsel argues that Rice's investigation was incomplete because he did not "even talk to the man who knows the most about it, the man who was struck." Likewise, the Union maintains that Rice "did not even try to get Collins' side of the story." However, this is contradicted not only by Rice's testi- mony, but also by that of Collins.70 In view of all the circumstances I find, in agreement with the Respondent, that Rice made a prompt, adequate, and thorough investigation of the incident. This investigation produced data from which a reasonable man might have concluded that Collins made a false accusation against Paugh. Despite Rice's union animus and his threats to get rid of Collins, I can- not disregard Rice's testimony that, as the result of his investigation, he became convinced that Collins had lied to him. Although under the same circumstances I may well have decided differently, it is not my function to second-guess Rice. It is merely my responsibility to determine whether Rice did, in fact, so decide, as he claims, or whether as the General Counsel urges this was simply a con- venient pretext utilized by Rice to rid the Respondent of the Union's president. I conclude that the General Counsel has failed to adduce convincing evidence that the incident was used as an excuse to discharge Collins. On the contrary, I find that Rice was in fact convinced that Collins was guilty of conduct justifying his discharge, and that Rice's union animus and Collins' union activities did not play a material part in this decision. It is true, as the General Counsel and the Union urge, that an employer is under .a legal duty to insure that his right to discharge is not delegated to any antiunion or prounion group of employees. Normally if employees insist that their employer discriminate and the employer acquiesces, the Act has been vio- 90 The fact that Rice may have called Collins to find out when Collins would come back to work is not, in my opinion, suspicious. I consider it normal for management to desire such information. 70 Collins testified as follows : Q. Did you have any other conversations with Mr. Rice concerning this incident before the December 31st incident when he fired you? A. Conversations? Q. Yes Concerning about Clarence hitting you? A. I told him ; that Clarence hit me, I told him even , you know, about going to Doctor Simendinger about it. Q Did you tell Mr. Rice anything else about the incident? A. About that incident? Q. Yes. A. I told him exactly what happened. 1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated. But where the employee-group's pressure on the employer stems from matters entirely aside from union adherence or other protected concerted activi- ties, the Act has not been violated 71 This is but a corollary of the well-estab- lished principle that an employer may with impunity discharge an employee for a good reason, a bad reason , or no reason at all, so long as the discharge does not interfere with - the employees' rights under Section 7 of the Act. Here, the evidence indicates that the employees were under the impression- whether er- roneous or not-that Collins had falsely accused Paugh . Unlike the employees' reaction to the return of Lemasters and McKibben , described below, the refusal to work with Collins was not shown to have been related to his union activities. Thus although there were complaints to the prosecutor during the strike about the picket line conduct of Lemasters and McKibben , there were no such com- plaints filed regarding Collins' conduct , and the nonunion employees worked with Collins in harmony for 2 months after the end of the strike . I conclude that the employees' concerted demand that Collins be discharged did not arise from his participation in union matters , and therefore the Respondent did not violate the Act by capitulating to this demand. E. The revocation of Flora D. Young's recall 1. Facts Flora D . Young was first employed by the Respondent in 1953 . She was a painter. She joined the Union and participated in the strike and the picketing which began September 1, 1959 . Her husband, Tex Young, was present on the picket line at times, although he was not an employee of the Respondent. Tex Young was apparently a loud , brash, aggressive individual . He engaged in ar- guments with nonstrikers, including one incident in which he challenged Fore- man Clarence Elwood Paugh to a fight . On another occasion outside the plant, Tex Young hollered at Rice : "Scab, we will get you yet." Flo Young's name headed the preferential recall list agreed to by the parties when the strike ended on October 26, 1959 . On January 8, 1960, she received a telegram from the Respondent directing her to report for work on January 11, 1960. On the next day, January 9, Tex Young telephoned Rice. Upon learning who was on - the wire, Rice directed Fisher to listen in on the extension telephone. Tex Young asked if Rice had sent, his wife a notice to report for work on Janu- ary 11 , and Rice replied that he had . Tex Young then said : "Mr. Rice, let me tell you one thing. If anybody as much as looks cross-eyed at my wife when she comes in there, I'm going to make you personally responsible ." Rice replied: "Mr. Young, I've had just about all the threats that I want to hear out of you" and hung up the telephone. That day, on Rice's instruction, Don Rice tele- phoned to Flo Young and told her to disregard the telegram recalling her to work, and that the Respondent could not accept her back because her husband "had called and made threats." Flo Young has not worked for the Respondent since. 2. Contentions of the parties The complaint, as amended at the hearing, alleges that on or, about January 8, 1960, the Respondent instructed Flo Young to report for work on January 11, 1960 ; that on or, about January 8, 1960, the Respondent instructed Flo Young not to report for, work, and informed her that she would not be reinstated . The an- swer, as amended at the hearing, admits this. The complaint further alleges that since January 8,, 1960, the Respondent has failed and refused to reinstate Flo Young. This is denied. in the answer . However, at the hearing the Respondent did not seem to press this denial . Finally, the complaint alleges, and the answer denies, that the Respondent's actions toward Flo Young were because she sup- ported and aided the Union , and/or because of the demands or threats of an antiunion group of the Respondent's employees. Basically, the dispute is as to Rice's motive in canceling Flo Young's recall. The General Counsel and the Union, denying that Tex Young uttered any "threat," con- tend that Tex Young's call was a mere pretext and that Rice's true reason for his treatment of Flo Young was his desire to rid the plant of the Union . Conversely, the Respondent contends that Tex Young "threatened" Rice and this was the only reason for the cancellation of Flo Young's recall. 71 Studebaker Corporation, 110 NLRB 1307 SUPERIOR TOOL & DIE CO. 1393 3. Conclusions It is well settled that in a situation of this kind, where F16 Young would have been the only member of the Union on her shift, the Respondent was legally obliged to furnish her with reasonable protection against her fellow employees.72 And had Flo Young reminded Rice of this legal obligation in a proper way, she could not have been disciplined by Rice for doing so. But what Tex Young did was something quite different. In the first place, he injected himself into the picture and put the matter on an entirely personal plane. And in the second place, whether his words can properly be described as a "threat," they were sufficiently belligerent to irritate a reasonable man, particularly in the context of his earlier picket line threat to "get" Rice. I therefore am convinced that the real reason for Rice's decision to revoke Flo Young's recall was his resentment of Tex Young's actions, and that Flo Young's union activities played no substantial part in the decision. It is so found. I find no evidence to support the alternative allegation of the complaint that Flo Young's recall was canceled because of the demands of an antiunion group of employees. F. The discharges of Lucy Lemasters and Juanita Beryle McKibben 1. Facts Lucy Lemasters was first employed by the Respondent in 1953. Juanita Beryle McKibben commenced working for the Respondent in 1956. Both were press operators, and both joined the Union. Lemasters became treasurer of the local, and McKibben a member of its negotiating committee. As previously mentioned, McKibben was one of the three employees with whom Rice conferred on the morning of August 28. She also attended bargaining sessions. Both Lemasters and McKibben went on strike on September 1 and participated in the picketing. There was considerable testimony that during the strike each of them had threatened to "get" the nonstrikers; each denied making any threats. In any event, complaints were made to the county prosecutor concerning the conduct of both Lemasters and McKibben. McKibben attended bargaining sessions during the strike and signed the contract of October 26 as one of the Union's representa- tives. Lemasters' name is the second (after Flo Young) and McKibben's the third on the preferential recall list agreed upon by the parties. . Lemasters was recalled to work on January 11, 1960. She reported to Boers that morning before working time and was assigned to a machine. The other employees were congregated around the lunch tables having coffee. When they saw Lemasters come in, they decided among themselves that they would not work with her. When the starting bell rang, Lemasters went to her work station, but the other employees remained seated at the lunch tables. Boers asked Lemasters what was going on; Lemasters answered that she did not know. Boers then asked the assembled em- ployees the same question. Tibbs replied that the employees would not work. When Boers asked why, Hohl responded that it' was "because of Lucy" and that he would "rather lose his job than work with her because of the things they hollered and screamed at him on the picket line." Boers reported to Rice, who came out and urged the employees to go to work.73 He stated that he was required to call back people on the preferential list; that they were good operators and he wanted to call them back; and that the employees were jeopardizing their jobs by refusing to work. Several employees replied "almost in complete unison" that Lemasters had made so many threats and had been so abusive on the picket line that they did not trust her and would not work with her. Rice conferred with Fisher,74 then told Lemasters that he was sorry; the employees refused to work with her. He called her into the office, where he stated he was going to have to terminate her in order to get the other employees back to work, and gave her a separation notice reading: "Reported for work. Employees refused to work with her. Discharge with reason." 75 Lemas- 72 Brown Garment Manufacturing Company, 62 NLRB 857, 874,; and Eureka Vacuum Cleaner Company, 69 NLRB 878. 73 The finding that Rice addressed the employees is based upon a synthesis of the testi- mony of Lemasters, Rice, Aikey, Harvey, and Tibbs. 7' Fisher testified that the decision to discharge Lemasters was made by Rice and Fisher jointly Rice testified that he consulted Fisher, but that Fisher expressed no opinion and left it up to him. 75 There is a conflict between Fisher's testimony and that of Rice as to whether Fisher was present. There is also a conflict between Lemasters' testimony and that of Rice as to whether Rice stated that Lemasters had "done him dirty by being on the picket line." 1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tens then left, and the other employees returned to work.76 She has not worked for the Respondent since then. McKibben was recalled to work on the next day, January 12, 1960. Arriving early, she waited outside the plant in an automobile. Someone saw her there and reported that fact to the employees, who as usual were gathered around the lunch tables having coffee. They decided among themselves that they would not work with McKibben. McKibben came in, made out her timecard,77 and asked Rice if she "was going to get the same reception as Lucy 'got the day before." Rice replied that she should "go out and see." When the starting bell rang, she went to her machine but the other employees remained seated at the lunch tables. Boers came over and asked the employees: "What . . . were [they] pulling again?" Keiffer replied that she was not going to work with McKibben because she was afraid of her. Harvey said she would not work with McKibben "because of the things that she heard on the picket line." Hohl answered that he was not going to work with McKibben. Aikey remarked that she would not work with McKibben because she was afraid; McKibben had threatened her. Boers reported to Rice. Rice came out and asked what the trouble was 78 Receiving no reply, Rice repeated the question. Harvey, Tibbs, and others answered that they would not work with McKibben; because of the threats she had made they were fearful of having her around. Rice remarked that they were subject to dismissal; they -responded that he could discharge them if he wanted. Rice asked: "Let's try to work something out . . . if we get rid of her [McKibben] then will you work?" The employees agreed to this. Rice conferred with Fisher and they jointly decided to discharge McKibben. McKibben was summoned to the office and Rice informed her that the other employees would not work with her, and she was terminated. 79 McKibben then left. On her way out, she turned to the other employees and stated: "Okay, you yellow scabs, you can go back to work now." The other employees then went to work 80 Rice had prepared and put in the Respondent's files a separation notice showing that McKibben "returned to work today but the employees working here refused to work with her because of threats she had made against them." Later McKibben received from the Respondent through the mail a check for 4 hours' pay 81 and a slip reading: "1-12-60 NOT REINSTATED." She has not worked for the Respondent since. On February 29, 1960, after the filing of the charges herein, the Respondent wrote to the Union as follows: We have done everything in our power to induce our employees to work with Lucy Lemasters and Juanita McKibben. However, we feel that since your union is the sole and extensive [sic] bargaining agent for these people, you can settle the differences between them. If you are unable to contact these people personally or in a meeting, we invite you to talk to them at the plant. We are holding their jobs open and will continue to do so for a reasonable time. If you will settle the differences between these employees, we will be pleased to reinstate them. The Union did not reply. 2. Contentions of the parties The complaint alleges, and the General Counsel contends, that the Respondent discharged Lemasters on January 11 and McKibben on January 12, and thereafter failed and refused to reinstate them, because they engaged in concerted activities, or "because of the demands or threats of an antiunion group of Respondent's em- ployees." The alternative theories of the General Counsel and the Union are that the Respondent instigated and encouraged its employees' refusals to work with 7e The employees began working from 10 to 15 minutes after the regular starting time, but were not "docked" for this period. 77 Usually timecards are prepared in advance and employees do not need to make them out. However, McKibben had been unable to find her timecard in the rack. 78 This finding of fact is based upon the testimony of Rice, Aikey, and Tibbs 79 There is a conflict between Fisher's testimony and that of Rice as to whether Fisher was present There is also a conflict between McKibben's testimony and that of Rice as to whether Rice mentioned McKibben's participation in the picketing. 80 Although the other employees refused to work for almost a half-hour after the start- ing bell rang, they were not "docked " 81 The contract provided for 4 hours' callin pay. SUPERIOR TOOL & DIE CO. 1395 Lemasters and McKibben as part of its campaign to rid itself of the Union; that even if this were not,so, the Respondent failed to take vigorous action against its employees to insure the rights of Lemasters and McKibben to be recalled; and finally that even if neither of these were proved, the Respondent nevertheless violated the Act by capitulating to the demands of its antiunion employees. The answer denies the discharges. However, the Respondent did not press this denial at the hearing. In fact Rice admitted that he had terminated Lemasters and McKibben at the insistence of the other employees, but justified his action on the ground that this was the only way he could assure continued operation of the business. 3. Conclusions I find no evidence that the Respondent notified the other employees in advance that Lemasters and McKibben had been recalled. Nor does the record support the contention of the General Counsel and the Union that the Respondent influenced its employees concertedly to refuse to work with Lemasters and McKibben. It may be, as the General Counsel and the Union urge, that Rice was remiss in not taking stronger measures to insist that the other employees work with Lemasters and McKibben. Or it may well be, as the Respondent apparently maintains, that the nonunion employees were engaging in concerted activities protected by Section 7 of the Act, and the Respondent was therefore legally powerless to discipline them for such conduct. But this matter need not be decided. For even if the nonunion employees were to be looked upon as legitimate strikers, they could have been ordered to leave the plant, and then been replaced. In any event, it was the Re- spondent's obligation to protect the legal rights of Lemasters and McKibben to be recalled, and it would serve no useful purpose to speculate on how this could or should have been accomplished. ' The authorities condemn as a violation of the Act any surrender by an employer to his employees of his right to discharge, except where (as in Collins' case) the employees' are motivated by considerations other than union activities 82 And here the nonunion employees were clearly motivated by consideration of the concerted activities of Lemasters and McKibben during the strike This is shown by the fact that a complaint was made to the county prosecutor regarding their conduct. It is further demonstrated by the overwhelming evidence that the basic reason for the refusal of the nonunion employees to work with Lemasters and McKibben was certain statements allegedly uttered by Lemasters and McKibben on the picket line, variously described as "threats" 83 and "names." 84 82 Wilson & Company v. NLRB., 123 F 2d 411, 417 (C A 8) ; N L.R B v Hudson Motor Car Company, 128 F 2d 528 (C A 6) ; N.L R.B. v. Goodyear Tire & Rubber Com- pany, 129 F. 2d 661, 664 (C.A 5) ; N L.R B. v. Fred P. Weissman Co , 170 F 2d 952 (;A. 6), cert. denied 336 U.S 972; NLRB v. D W. Newton, d/b/a Newton Brothers Lumber Company, 214 F. 2d 472, 475-476' (C.A. 5) ; Detroit Gasket and Manufacturing Company, 78 NLRB 670; Majestic Metal Specialties, Inc, 92 NLRB 1854; Paramount Textile Machinery Co., 97 NLRB 691, 693-694; Fry Products Inc, 110 NLRB 1000, Lincoln Brassiere Co, Inc, 117 NLRB 1237, 1240-1242; J. P Florio & Co, Inc, 118 NLRB 753; Local 138, International Union of Operating Engineers, AFL-CIO and Thomas A. Eichacker ( Nassau and Suffolk Contractors' Association, Inc ), 123 NLRB 1393; and Larkin Coils, Incorporated, 127 NLRB 1606. The Respondent cites N L.R.B. v. Edinburg Citrus Association, 147 F. 2d 353 (C A. 5) ; N.L R B. v. Wytheville Knitting Mills, 175 F 2d 238 (C A 3) ; and N L R B. v I Spiewak & Sons, 179 F. 2d 695 (C.A. 3). With all respect for the courts which decided these cases, as a Trial Examiner I must follow the Board's enunciated rules until the Board or the United States Supreme Court decides otherwise. Novak Logging Company, 119 NLRB 1573, 1575-1576; Scherrer and Davisson Logging Company, 119 NLRB 1587, 1589; and Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772-773. 83 Although there is a conflict, it will be assumed without deciding that Lemasters and McKibben uttered threats against the nonstrikers. 84 Harvey testified that some of the men refused to work with McKibben "because of the names she called them on the [picket] line" As to Lemasters, Harvey testified that the men resented "the names that they called them when they came through the line . . the names and stun that they called them . . the dirty names Yellow scabs and stuff like that. I think that is what they [the men] held against her [Lemasters] " Keiffer testified that she would not work with Lemasters "because I called her and asked her to come back to work She definitely said no That she would take care of anybody that 614913-62-vol. 132-89 1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And it is equally clear that Rice knew of the employees' motivation. In failing to protect the rights of Lemasters and McKibben under these circumstances, Rice thus violated the Act. And his attempt to shift the blame onto the shoulders of the Union cannot relieve the Respondent of responsibility for its own conduct. For the foregoing reasons, it is found that by discharging Lemasters on January 11, 1960, and McKibben on January 12, 1960, and thereafter failing or refusing to recall them to work, the Respondent violated Section 8(a)(1) and (3) of the Act. G. Events after January 12, 1960 1. Facts The contract of October 26, 1959, established a grievance procedure for the adjust- ment of disputes, ultimately leading to arbitration. In January 1960 Collins, Flo Young, and Lemasters filed grievances, based on their discharges, and the parties began to make preliminary arrangements for disposing of the disputes through the contractual machinery. The Respondent terminated these arrangements when it learned that the Union had filed the instant charges on February 1, 1960. Between February 16 and April 22, 1960, the Respondent hired six additional male employees on the second shift, of whom two were still employed by the Re- spondent at the time of the hearing. As previously noted, the second shift was discontinued in April 1960. The record does not clearly show whether these two male employees were then laid off, or whether they were then transferred to the first shift. Sometime early in 1960 the Respondent recalled to work employee Helen Richie, whose name was fourth on the preferential rehire list, next after McKibben's. Richie is still working for the Respondent. The Respondent also attempted to recall em- ployee Ann Bagyi, the fifth named employee, but Bagyi "wouldn't accept service on the call." The Respondent has made no further effort to recall other employees named on the preferential rehire list. Rice explained that he "was getting com- pletely fed up with the deal," and therefore when business picked up, he scheduled more hours for the existing employees rather than calling upon other former em- ployees from the preferential recall fist. One other matter should be briefly mentioned. During the hearing, Rice drove Tibbs to the home of striker Irene Royole, where Tibbs apparently unsuccessfully attempted to persuade Royole to testify at the hearing on the Respondent's behalf. There is a conflict, which I need not resolve, as to whether Rice or Tibbs took the initiative in suggesting this excursion. 2. Contentions of the parties and conclusions The Respondent contends that the filing of the charges herein interfered with the amicable adjustment of the disputed matters and therefore constituted bad faith and a breach of the arbitration provisions of the contract of October 26, 1959. The Union, on the contrary, not only denies that it obstructed arbitration but asserts that the Respondent's action of withdrawing from arbitration on the pretext that the Union had filed charges put the onus of "contract violator" squarely upon the Respondent. The General Counsel expresses no opinion on this phase of the case. As I view the issue, it is no concern of the Board whether the contract was broken, or by which party. Such questions are extrinsic here and need not be decided. Nor need I consider whether the incident reveals bad faith or union animus on the part of the Respondent. The complaint does not allege and the General Counsel does not contend that the hiring of the seven new male employees and the failure to recall the six remaining strikers on the preferential recall list constituted a violation of the Act. The General Counsel's position is merely that the Respondent's conduct in this regard, particularly in view of Rice's testimony that he was "fed up," furnishes additional proof of the Respondent's union animus. The Union, however, contends not only that the Respondent's conduct in this respect violated the contract of October 26, 1959, but also that it constituted illegal discrimination violative of the Act. The Respondent points out that it had a full complement on the first shift, that its personnel needs arose only on the second shift, that it had a policy against female employees on the second shift, that all strikers on the preferential recall list are women, and all new went back to work" and that she would not work with McKibben because she "followed me all over . . . she called me a redheaded s.b. . . . she followed me around . threatened me in my home." SUPERIOR TOOL & DIE CO. 1397 employees hired since the strike were men, all of whom were assigned to the second shift. The Union rejoins that the Respondent should have staffed the second shift by transferring men from the first shift, thereby creating vacancies on the first shift which the women could fill, while at the same time adhering to its rule against females on the second shift. In my opinion , the General Counsel has control over which conduct shall be alleged as proscribed . Where particular conduct is not mentioned in the complaint and is "litigated at the hearing only incidentally " in connection with other alleged violations and not as a possible basis for an independent finding, a Trial Examiner is precluded from finding additional violations .85 Therefore I cannot properly consider the Union 's contention that the Respondent violated the Act by tailing and refusing to recall the remaining strikers on the preferential rehire list. There remains the General Counsel 's argument that Rice 's handling of this problem furnishes additional proof of the Respondent 's umon animus. The quick answer to this is that events which occurred after January 12 , 1960, cannot legitimately be related back to establish the existence of umon animus prior to that time.86 The General Counsel argues that the remaining incident, involving the visit of Tibbs to Royole's home, further illustrates the Respondent 's union animus . In this connection it must be borne in mind that the Respondent was then engaged in preparing its defense against the instant complaint 87 Under all the circumstances, I look upon the incident as too trivial to be of any real probative value. H. Effect of the strike settlement agreement The Respondent vigorously urges that, because of the strike settlement agreement entered into by the Respondent and the Union on October 26, 1959, followed by the Union's withdrawal of the charges in Case No. 8-CA-1991, the Board should not base any unfair labor practice findings on conduct prior to that-date. It is true that, in the interest of promoting voluntary settlements of disputes, the Board in its dis- cretion normally Will not_go behind such settlements.88 n But where subsequent con- duct duct of the Respondent demonstrates that the efforts at adjustment have failed to accomplish their purpose, it is appropriate for the Board to consider events ante- dating the settlement.89 Here, one of the primary objectives of the settlement was to secure recall of the listed strikers as openings occurred. As has been shown above, the Respondent discriminatorily dischargecttwo of these women on the preferential recall list-Lemasters and McKibben. This defeated one of the main objects of the settlement and weakened its salutary impact. Accordingly, I conclude that it would effectuate the purposes of the Act for the Board to consider events prior to October 26, 1959. THE REMEDY It has been found that the Respondent committed certain violations of Section 8(a)(1) of the Act. I do not consider that this conduct indicates a basic opposition to the policies of the Act, especially as the Respondent ultimately bargained and executed a contract with the Union. Likewise the motivation behind the discharges of Lemasters and McKibben was primarily to attempt to keep the Respondent's shop in production, rather than a desire to punish these two strikers for their participation in concerted activities. I therefore conclude that there is no danger of the future commission by the Respondent of different and unrelated unfair labor practices. Accordingly, it will be recommended only that the Respondent cease and desist from the unfair labor practices found, and from in any like or related manner infringing upon the rights of its employees. Affirmatively, it will be recommended that the Respondent offer to Lemasters and McKibben immediate and full reinstatement to their former or substantially equiv- alent jobs, without prejudice to their seniority or other rights and privileges, discharg- ing, if necessary, any employee hired after January 12, 1960. It will further be recommended that the Respondent make each of them whole for any loss of pay 85 Crookston Times Printing Company, Supra. 80 Sam Letter, et at, d/ b/a Leiter Manufacturing Company, 112 NLRB 843, 851, foot- note 21. 87 Compare The Great Atlantic & Pacific Tea Company, 123 NLRB 747, footnote 1, enfd. in part 277 F 2d 759 (C.A. 5). 88 The Ohio Calcium Company, 34 NLRB 917 ; Rice-Sties of Arkansas, Inc., 79 NLRB 1333; and Jackson Manufacturing Company, 129 NLRB 460 88 The Wallace Corporation v. N L R B., 323 U S. 248, Rathbun Molding Corporation, 76 NLRB 1019; Taylor Manufacturing Company, Incorporated , 83 NLRB 142, footnote 1, Caroline Mills, Inc, 92 NLRB 1141 , footnote 3; and Victor Chemical Works, 93 NLRB 1012, 1014. 1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she may have suffered by paying to her a sum of money equal to that which she would normally have earned from the date of the discrimination against her to the date of the offer of reinstatement, less her net earnings during such period. The backpay provided for herein shall be computed in a quarterly manner, as established by the Board.90 It will further be recommended that the Respondent preserve and make available to the Board or its agents all records needed to determine the amount of backpay due hereunder, and post the usual notices. Finally it will be recommended that the complaint be dismissed, insofar as it alleges that the Respondent discriminated against John D. Collins and Flora D. Young. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section Z(5) of the Act. 2. By discharging Lucy Lemasters and Juanita Beryle McKibben, thereby dis- criminating in regard to the hire and tenure of employment of its employees and discouraging their membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By the above-described conduct, and by other acts, the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The above-described unfair labor practices, occurring in connection with the Respondent's operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to prove that the Respondent discriminated against either John D. Collins or Flora D. Young. [Recommendations omitted from publication.] 90 F. W. Woolworth Company, 90 NLRB 289. Minnesota Manufacturing Company, Inc. and Dorothy Price and Jowon Lee Brand Minnesota Manufacturing Company, Inc. and Central States Region, International Ladies' Garment Workers' Union, AFL- CIO Minnesota , Woolen Company and Central States Region, Inter- national Ladies' Garment Workers' Union, AFL-CIO. Cases Nos. 18-CA-1111-1-2,18-CA-1118, and 18-CA-1136. August 29, 1961 DECISION AND ORDER On December 16, 1960, Trial Examiner Owsley Vose issued his Intermediate Report in the above-entitled proceeding, f nding that the Respondent, Minnesota Manufacturing Company, Inc., had en- gaged in and was engaging in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the Intermediate Report attached hereto. 132 NLRB No. 116.