Titan Metal Manufacturing Co.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and all supervisors defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. NMU has been at all times since February 8, 1960, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a). 3. By refusing to bargain with NMU since November 16, 1960 , Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) . 4. By interfering with the administration of the Association and by contributing financial or other support to it, Respondent has, since November 16, 1960, engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(2) and (1). 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Titan Metal Manufacturing Co. and United Steelworkers of America, AFL-CIO; United Steelworkers of America, AFL- CIO, Local 5649. Case No. 20-CA-1969. January 1 2, 1962 DECISION AND ORDER On September 21,1961, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also rec- ommended that all other allegations of the complaint be dismissed. Thereafter, the Charging Party filed exceptions i to the Intermediate Report and a supporting brief. The Respondent filed a reply brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. . The Board has reviewed the Trial Examiner's rulings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER The Board adopts the Recommended Order of the Trial Examiner with the modification of provision 2 (d) to read : "Notify said Regional i Subsequent to the filing of its exceptions , the Charging Party requested permission to withdraw its exceptions insofar as they relate to the Trial Examiner's dismissal of the Section 8 ( a) (5) allegation of the complaint . The request is granted. ' Member Rodgers finds it unnecessary to a consideration of this case to decide whether an economic striker once permanently replaced has a right to reinstatement if at the time of application for reinstatement his replacement is no longer employed by the Employer. Accordingly. he would not adopt the Trial Examiner's comments in this regard 135 NLRB No. 22. TITAN METAL MANUFACTURING CO. 197 Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 3 9 The notice attached to the Intermediate Report marked "Appendix" is modified and appended to our Decision and Order . In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL make whole James Douglas for any loss he may have suffered by reason of the delay in offering him reinstatement to the position he occupied before the strike in the manner recom- mended by the said Trial Examiner. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, and United Steel- workers of America, AFL-CIO, Local 5649, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with Section 8(a) (3) of the Act. All our employees are free to become or to remain members of the above-named Unions or any other labor organization. We will not discriminate in regard to hire or tenure of employment. or any term or condition of employment against any employee because of mem- bership in or activity on behalf of any labor organization. TITAN METAL MANUFACTURING 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and two amended charges filed by the United Steelworkers of America, AFL-CIO, and Local 5649 thereof, herein indiscriminately called the 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, a complaint was duly issued against Titan Metal Manufacturing Co., herein called the Respondent, on March 21, 1961, and an amendment thereto was issued on April 6, 1961, alleging that the Respondent had committed unfair labor practices within the meaning of Section 8(a) (1), (3), and (5) of the Act. The gist of the complaint is that: While the Respondent's employees were out on an economic strike, commencing on October 1, 1960, the Respondent on November 14, December 5 and 20, 1960, discharged certain strikers; the economic strike was, converted into an unfair labor practice strike on November 14, 1960, because of the discharge of striking employees John Prado and Earl Cook, or alternatively on dates of subsequent discharges of strikers; the Respondent on various dates solicited striking employees to return to work; the said strike was abandoned on February 9, 1961; on February 10, 1961, the Respondent failed and refused to reinstate employees who had been on strike until certain dates between February 20 and March 3, 1961, failed and refused to return three named employees at any date, gave some returning strikers more arduous and less agreeable tasks, less desirable work shifts, and de- creased rates of pay, and denied seniority based on prestrike service to those who had engaged in the strike. The complaint further alleged that the Respondent on March 1, 1961, had failed and refused to bargain with the Union although requested by the Union (alleged to be the majority representative) on that and subsequent dates to do so. The Respondent's answer, duly filed, admitted that the strike was economic in its inception and admitted the several discharges in November and December, but denied the cause alleged and denied all other unfair labor practices, admitted that the Union had been the majority representative on December 5, 1957, admitted the refusal to bargain on March 1, 1961, but denied that the Union was then the majority representative. Pursuant to notice, a hearing was held in San Francisco, California, from May 9' to 22, 1961, before the duly designated Trial Examiner. Time was set for the filing of briefs, which time was later extended to July 31, 1961. In due time the General Counsel, the Respondent, and the Union filed briefs with the Trial Examiner. From my observation of the witnesses and their demeanor on the witness stand and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Pennsylvania corporation, with places of business at Bellefonte, Pennsylvania; Indianapolis, Indiana; and Newark, California, is engaged in the business of the manufacture and distribution of brass and bronze rod wire and forg- ings. The Newark plant is the only one here involved. During the year 1960, the Respondent manufactured, sold, and shipped from its Newark, California, plant products valued in excess of $50,000 to points outside the State of California. During the same period, the Respondent purchased materials valued in excess of $50,000 directly from points outside the State of California.' No issue of juris- diction is raised. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Respondent. The Respondent's answer denies that the Union is a labor organization, but there is ample evidence to establish that it is, including the fact that the Respond- ent had engaged in negotiations with the Union for a collective-bargaining agree- ment, and, were it not evidenced in this case, the Trial Examiner could take official notice from other Board decisions of the nature of the Union as a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Background All the allegations of unfair labor practices committed by the Respondent are based on acts occurring in connection with a strike which began at the Respondent's Newark plant on October 1, 1960. Before that date, the Union had been, since 1957, the recognized collective-bargaining representative for the Respondent's em- 'These findings as to the Respondent's business are based principally on the allega- tions of the complaint, admitted In the answer. TITAN METAL MANUFACTURING CO. 1991, ployees in an appropriate unit. Having a collective-bargaining agreement which expired on October 1, 1960, the Union and the Respondent, before that expiration date, had been negotiating for a new contract upon different terms. When no agree- ment was reached by October 1, a strike was called. The strike was, therefore, an economic strike at its inception. It is contended by the General Counsel that each of the alleged unfair labor practices occurring during the strike converted the strike from an economic strike to an unfair labor practice strike. 2. Solicitation of strikers to abandon the strike The first allegation of unfair labor practices alleged to have converted the strike into an unfair labor practice strike on November 14, 1960, was solicitation of "vari- ous" employees on October 4, 6, 20, 26, and 31. The first four dates are those on which the Respondent wrote letters to its employees. The evidence indicates, how- ever, that these letters were written, not to various, but to all striking employees. October 31 was the date of a telegram sent by the Respondent to all striking employees. a. The written communications Under date of October 4, 1960, William W. Sieg, president of the Respondent, wrote a letter from Bellefonte, Pennsylvania, addressed to Western Division em- ployees, in which he deplored the second strike in the short business life of the, Respondent on the west coast as compared to only 1 in 45 years at Bellefonte. Naming the issue as "money," he gave the economic reasons for building the plant in California, denied a rumor that the Respondent would move its operations back East, and stated that the Respondent was paying rates equal to or better than others in the area and considerably better than Respondent's rates in the East. He said that competition was difficult to meet and that the Respondent was "at a crossroads." He concluded by saying that J. M. Golden (the Respondent's vice president in charge of the Newark, California, plant) and John Cantwell (the Respondent's labor rela- tions consultant) had the Respondent's backing and that there was no plan to send additional help from the East for future bargaining. He closed by saying, "Our- position is sincere, our future on the West Coast is in your hands." On October 6, 1960, Golden sent a letter to Respondent's employees (addressed, "Dear Titan Employee") to set forth an explanation of its proposal (in bargaining- with the Union) of a reclassification of jobs which would result in higher rates for many of the jobs in the old classification but lower rates for others. He assured' the employees that this would not mean a loss of pay for a present employee whose job would carry a new lower rate, that the rate of old employees would be red circled and would remain the same even if they were transferred and were later returned to their present job and even if they were laid off and returned to the job- later. A list of the proposed classifications and rates was attached. Golden's letter then mentioned the low level of business nationally and the necessity of not increas- ing costs. On October 20, 1960, Golden wrote another letter to the employees to inform them of its bargaining proposals made to the Union, first, to extend the old contract for another year and then to make a contract similar in most respects but with important differences in others. A copy of this proposed contract with such dif- ferences was attached, and the letter pointed out the paragraphs in which there were changes. It then enumerated other terms agreed on with the Union or offered by the Respondent. Golden concluded his letter with the statement: "No doubt this still does not answer some of your questions; but, again, we will be glad to discuss them with your Union representatives." The last letter written by Golden, that of October 26, unlike the other letters, was addressed personally, i.e., with a personal salutation, to each striking employee. These letters were all the same except for the job classification and rate mentioned in the letter which was stated for the employee addressed. Since this letter and the telegram of October 31, 1960, constitute the principal basis for the General Counsel's contention of unlawful solicitation, they are quoted here in full: Mr. T. E. HAYHURST, 3356 Clifton Court, Irvington, California. DEAR Tommy: Again I write to you and your family about a very real prob- lem that faces us all. As we explained to your representatives in negotiating meetings-as we ex- plained to you in our letters-the low level of business nationally and the tough domestic and foreign competition that we face means that we simply cannot 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD go beyond our last offer. It is our sincere and considered opinion that this is all the traffic will bear-to go any higher can only result in lost customers, lost sales, less production, and fewer jobs. From August 1 to October 1, the negotiating period for a new contract, we met with your representatives six times, once in August and five times in September. At our last meeting on September 30, your representatives gave us a final package demand which we estimate will cost us in excess of 130 per man hour, a cost which we cannot absorb and a cost which we cannot pass on to our customers. Your representatives have not lowered this demand nor have they requested any meetings since September 30. We have been willing, and are willing, to meet with your representatives to discuss anything that you think might help settle this strike; but business conditions will not permit us to exceed the economic cost of our last offer. Thus, it appears that things are at a standstill ; and the question facing us all is, "Where do we go from here?" One possible result of this, of course, could be a long strike. But I think you and your family will agree that the losses already suffered by every one of us make a long strike unthinkable. We think another and better solution is for us all to get back to work so that your regular income may be restored promptly before your loss becomes too big. We sincerely want each and every Titan employee back on the payroll. You are scheduled to report for work at 8 a.m. on Tuesday, November 1. When you report for work on Tuesday, your job classification will be Block Man. Your rate of pay will be $2.10 per hour, incentive base, which will be an increase of 5¢ per hour for you. Shift differential will be the same as it was, to be added to the above, when applicable. Your health and welfare plan insurance, with coverage for you and your dependents, will continue as in the past. All of the, above is in accordance with our final offer to your representatives, as explained to you in my letter of October 6. You will receive 480 per hour bonus for each hour you work until Novem- ber 20. You will receive 570 per hour bonus for each hour you work from Novem- ber 21 to December 18. If you are unable to report for work on Tuesday, please contact J. E. Moore, at our personnel office, or G. J. Miller, Plant Superintendent, to advise when you will be able to report for work. You will recall my letter of October 7 stated that your health and welfare insurance coverage would be carried at company expense until November 1. After November 1, this coverage will be continued only for those employees who have returned to work or who have made arrangements to return to work. Believe me, we have been proud of our Titan team, and we have absolutely no desire to replace any employee. But-the plant just must get back into production. So to be completely honest with you, we must report that the law gives a company the right to permanently replace an economic striker. We do not want to do that. We want you to have your regular job back again-to rejoin our team! Thank you for giving this your very serious consideration. Yours very truly, TITAN METAL MFG. COMPANY DIVISION, (S) J M Golden, J. M. GOLDEN, Vice President-Western Division. JMG:eo No explanation was offered at the hearing for the bonus for each hour worked between certain dates, as mentioned in the letter. It cannot be ascertained, there- fore, whether this bonus was promised as an inducement to strikers to abandon the strike, whether it refers to an incentive pay bonus, or whether it is an extension, modification, or increase of some other bonus previously given as an established practice. Since the new classification of blockman is shown as an incentive-pay job, the bonus mentioned may very well refer to the average incentive rate for the em- ployees. Where an innocent meaning is possible, it is incumbent on the General Counsel, if he contends that the meaning is not innocent, to offer proof of his con- tention. A's-he has failed to do so, I find no promise of special benefit to abandon the strike. Since the Respondent had already offered to the Union the new classifi- cations and rates, it was at liberty to institute such changes unilaterally after rejec- TITAN METAL MANUFACTURING CO. 201 tion by the Union? The incentive rate quoted to Hayhurst (addressee of the letter) is the same as that shown in the new schedule and the new rate was in fact 5 cents higher than his former rate. Anyone going on that job after the new rates were initiated would receive the higher rate. It was not, therefore, an offer of special inducement to Hayhurst alone, as a striker, to abandon the strike. The final communication alleged to be solicitation of individual strikers was a telegram sent on Monday, October 31, 1960, over Golden's signature, to each strik- ing employee. This telegram read: You are expected on the job tomorrow at 8 a.m. Under the Taft-Hartley Law, no man can be fired from his job except for failure to pay his normal monthly dues where a contract requires union membership. He cannot be fired for failure to pay fines, and he cannot be legally blocked from employment anywhere else. You, therefore, have the law's protection to make the decision - to come to work. If the Union or the conciliator asks for a meeting, the Company will not refuse to meet. However, the Company's economic offer that you already have gotten is as high as we can go this year; and it is pointless to call new meetings just to see if the Company will increase its economic offer. As stated in my letter of October 26, we do not want to replace any Titan employees; but the law gives as that right, and we will do so, if such is necessary to resume production. If the General Counsel has made an analysis of this correspondence which shows how it constitutes interference, restraint, and coercion, as alleged in the complaint, he has not presented it either during the hearing or in his brief. Nor does the Union argue the matter in its brief. With the one exception noted above (hourly bonus for work done between certain dates), none of the letters contains anything that could be construed as a promise of benefit which had not already been offered in negotiations with the Union, and that one exception may have followed as a conse- quence of the terms offered the Union. The only threat of detriment appears in the Respondent's statement about replacement. Since that statement was merely an explanation of the legal consequences resulting from replacement of economic strikers, that is not a threat constituting a violation of Section 8(a)( I) of the Act s The statements made in Golden's telegram likewise carry no threat or offer of benefit. The fact that Golden explained, at all, the legal rights and immunities of those who might abandon the strike finds an explanation in the next related incident. b. Oral solicitation Although the complaint alleges that on various unknown dates in October and November 1960, the Respondent by certain officers, agents, and representatives (naming two) solicited various striking employees to return to work, the evidence offered by the General Counsel was limited to one instance involving one employee. This occurred on Saturday, October 29, 1960. On that day, striking employee Virgil Edwards arrived alone early in the morning for picket duty. Superintendent George Miller, who had been doing guard duty from midnight on, came to Edwards' car, asked if he was cold, and if he would like a cup of coffee. Edwards accepted the offer and went into the guard shack which adjoins the main building. Miller made coffee and while they drank it Miller told Edwards about the products which, the Respondent made and how the dies were designed. Among other things, the Respondent made bookends and letter openers which it used to give as souvenirs. Each new employee was given one. Miller asked if Edwards had ever received one. Edwards said he had not, and Miller gave him a letter opener. Edwards com- mented that he was in arrears in his rent and would like to come back to work but was afraid to cross the picket line. According to Miller, Edwards said that he was afraid the Union would blackball him and fine him and that be feared physical harm. Miller expressed his opinion that the Union could not legally blackball Edwards and that a fine would not affect his employment status but suggested to Edwards that if he had questions, he could ask Golden after he arrived. When Golden arrived at the plant after 8 a.m., Miller told him that Edwards wanted to talk to him. Golden went to Edwards' car. Edwards told Golden that he wanted to talk to Golden about returning to work on November 1 (the date set for the plant's reopening in Golden's October 26 letter to the employees). Edwards. asked Golden whether he would suffer a union fine if he came back across the picket line and if a fine would affect his job. Golden answered that he had no 2 Mission Manufacturing Company, 128 NLRB 275 ' The Texas Company, 93 NLRB 1358; McLean-Arkansas Lumber Company, 109 NLRB 1022; Economy Stores, Incorporated, 120 NLRB 1. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge of the Union's bylaws or policy, that before the strike the Respondent had collected only dues, and that he knew of no law that required a discharge for failure to pay a fine. Edwards asked what the situation would be if the Union blackballed him. Golden said that he would not have to discharge Edwards for that, but he said that he was not versed in the law and that, if Edwards wanted to know, he should call the Board. Edwards asked where it was and Golden took him into the guard shack and looked up the address and telephone number of the Board's Regional Office. Edwards asked permission to call Richard Winter, presi- dent of the Union , to see if he wanted to ask questions and would come in to talk with Golden. Golden gave him permission to telephone and said that he would talk with any striker about anything except negotiable items. Golden stepped out of the room while Edwards talked with Winter. The latter refused to speak with Golden except over the negotiating table. Edwards returned to the guard shack and encountered James Moore, the Re- spondent's office manager. Edwards told Moore that he wanted very much to return to work, that if the strike continued much longer he was afraid that under his current financial condition he would be unable to stand it. Moore told Edwards that, if he was afraid to cross the picket line, the Respondent would see that he arrived safely, that he would drive Edwards in his car. Edwards said that he had never crossed a picket line but might have to. He then returned to his car. Because Edwards himself raised the subject of his return and because the Re- spondent offered him no special inducement to return, I find no solicitation of any strikers nor any attempt by the Respondent to undermine the Union 's bargaining position 4 B. Discouragement of union membership by discriminating in regard to hire and tenure of employment 1. Discharge of strikers for misconduct a. Events of November 11, 1960 For want of employees, the Respondent did not go back into production on November 1, 1960, as it had stated it would in its letter of October 26. Thereafter, however, it began to seek replacements for the strikers, and on Friday, November 11, 1960, it began production with two new employees, Leo Rial and Norman Johnson. That day, contrary to their usual parking practices, the pickets turned their parked automobiles around on the street in front of the plant so as to face in the direction -in which anyone leaving the Respondent 's plant would have to go.5 When the shift ended that day, the new employees drove out in their respective cars. Johnson, .accompanied by a foreman, left first and was followed by Robinson , a staff repre- sentative of the Union, in his car, accompanied by several identified strikers. As Rial, accompanied by Foreman William Holt, drove out, strikers John Prado and Earl Cook, in Prado's car, pulled out behind Rial and followed him northeastward ,on Mowry Avenue. For a distance of perhaps a mile from the plant Mowry is a two-lane, two-way road; but north of the Nimitz Freeway (running from Oakland -to San Jose) Mowry becomes a divided highway of two lanes in each direction. When Rial reached this point, Prado accelerated his car and came alongside of Rial's car. Cook shouted to Rial to stop and made motions with his hands. Holt -did not hear what Cook said but surmised that Cook was trying to stop Rial. Before the hearing, Rial had gone into military service and did not testify. Holt -testified that Rial expressed fear of stopping and refused to do so, although Holt tried to assure Rial that Cook and Prado were regular fellows. Following this, and in a distance of perhaps another 1 or li miles, Prado indulged in various -maneuvers with his car to bring Rial to a halt , starting with "drifting" in Rial's -direction and later with passing Rial and cutting in front of him. On one occasion, to avoid being cut off by Prado's car, Rial swerved off the road to the right shoulder and speeded up. After that, Prado passed Rial, cut fully in front of Rial, about * See Jordan Bus Company and Denco Bus Lines, Inc, 107 NLRB 717; The Texas Company, 93 NLRB 1358 An offer of protection in crossing the picket line is not, in my opinion, such special inducement It is no more than the normal concern an employer should have for the safety of his employees. 5 The Respondent's plant faces Mowry Avenue in Newark, a street that runs from southwest to northeast. Mowry deadends in a city dump a short distance southwest of -the plant . In a northeasterly direction it leads to Centerville and to crossroads leading -to other East Bay cities TITAN METAL MANUFACTURING CO. 203 one or perhaps a length and a half ahead of Rial , and slowed down. Rial cut around Prado on the left and returned to the slow lane . Prado caught up, passed Rial on the left, cut sharply in front of Rial and stopped fast , on an angle, across the line dividing the fast and slow lanes. The witnesses varied considerably in their estimate of speeds, but I conclude that, when not impeded by slowing down tactics, Rial was attempting to maintain a speed of between 25 and 35 miles per hour. When Prado stopped sharply in front of Rial, diagonally across the road, Rial applied his brakes hard and cut his wheels sharply to the left, skidding to a diagonal position 6 opposite to that of Prado's car; then Rial started up and, to clear Prado's ,car, cut left across the dividing strip into the fast southbound lane and returned to the righthand northbound lane. While Prado and Cook were still at a stop, Super- intendent Miller drove up on their right, stopped , and asked what they were trying to do. Cook answered that they wanted to talk with "that fellow in the other car." Miller said that that was "a h- of a way to do it ." Prado and Cook took off again but did not thereafter get ahead of Rial, or engage in any maneuvers. Rial made a right turn on the next thoroughfare , went for a distance of a mile, more or less, and made another right turn , with Prado and Cook following all the way. Miller, meanwhile, followed Prado and Cook. After the last turn, Rial stopped at the curb, Prado and Cook pulled up behind and to the left of Rial's car, while Miller brought up the rear. Rial and Holt got out and went to Cook, who did not get out of Prado's car. Miller joined them and asked Cook why he was there. He answered that he wanted to talk to Rial. Holt warned Cook that if he threatened harm to Rial , he could be in serious trouble. Rial asked what Cook had to say. Miller testified that Cook asked Rial if he realized that he was taking someone else's job in the plant, and told Rial he would better not return to work the following Monday or there would be somebody else to stop him . Cook quoted himself as asking if Rial knew he had crossed a picket line and if he knew they were on strike. Rial asked if that was all Cook wanted . Cook said it was, and Rial told Cook to be on his way then. Holt and Cook chatted amiably for a short while about the subject of fishing. When the group broke up, Prado turned around and left. Miller and Holt remained with Rial until he reached his home; then they returned to the plant and reported to Golden the activities of Prado and Cook . Golden considered this report over the weekend (the incident occurring on Friday night ). On Monday, November14, 1960, Golden sent telegrams to Prado and Cook notifying them that their acts of reckless 7 use of an automobile against an employee of Respondent on November 11 were not protected by the Act and that they were discharged without right of reinstatement. b. Events of November 30, 1960 By the end of November, the Respondent had hired 14 replacements . On Novem- ber 30, a large number of pickets were in front of the plant . Three service roads for the plant extend between the plant facilities and Mowry Avenue . The first, as one approaches from the northeast on Mowry, is the entrance to the office parking lot, the second is the exit for that parking lot, while the third , sometimes called the truck entrance, leads to the plant parking lot as well as to the truck scales and the rear of the plant. On that morning , as employees arrived at work, they found their progress impeded by strikers in their path. A number were stationed in the office parking lot entrance while others were on Mowry and at the truck entrance. Union President Richard Winter was near the office parking lot entrance, among a num- ber of others, and strikers Warren Jennings and Harry Kissler were walking down Mowry toward the truck entrance when a car driven by a newly hired employee, J. D. Herrin , reporting for the first time, approached the plant on Mowry. It slowed to about 5 miles per hour and proceeded to a point between the entrances to the two parking lots. Jennings turned , faced the front of Herrin's car, and put his hands on the hood and right front fender. The car continued at the same speed with Jennings walking or jumping backward. The driver raced the motor of his car 8 and then swerved to his left and accelerated The evidence is in conflict as to whether Jennings was struck and tossed onto the fender or whether he jumped for- 8 It had been raining that day, but whether or not the roads were still 'wet is not certain 7 The telegrams had been telephoned to the Western Union office . The misspelling of "reckless" as "wreckless" in the telegrams is not chargeable to the Respondent, nor do I read them as having a meaning different from that intended 8 1 received the impression that the driver did this with his clutch disengaged as a warning signal before actually moving forward at an increased speed 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ward onto it and then rolled off into the ditch. He may have been struck as he attempted to jump aside .9 In any event, Winter, observing Jennings going into the ditch, voiced an imprecation, reached down and picked up a piece of hard clay about the size of a soft ball, and threw it at the back of the receding car. Winter testified that the lump fell short of the car and broke up in the road . This was un- refuted. The Respondent's witnesses were not in a position to see where it landed, and Herrin did not testify. Kissler, about 30 feet below Jennings toward the truck entrance, but on the oppo- site side of the road, also saw Jennings go into the ditch . Kissler had been walking toward the truck entrance on Mowry Avenue with a paper cup in his hand (having bought coffee at a canteen truck a while before ). Kissler saw the car come into contact with Jennings. He turned to face the side of the car as it was accelerating in his direction and raised his hands face high before him .iO The testimony at this point is in conflict . Witnesses for the General Counsel testified that they saw Kissler's cup fly upward and then saw Kissler roll off the rear fender . Kissler testi- fied that he was hit by the side of the car and rolled along its side, striking his elbow and suffering a small glass cut on his little finger . Office Manager Moore, who observed the incident as he was approaching the entrance to the office parking lot on Mowry in his car, testified that he saw a man whom he believed to be Kissler with his hands at the left front window of the car and then heard a loud noise of impact and the sound of glass breaking. After the incident involving the Herrin car, Superintendent Miller, who had wit- nessed Winter's act of throwing something at the car, reported the matter to Golden, but he called the thrown object a rock. Moore reported what he had seen and heard to Miller and Golden, but although he said he saw a blow struck, he told them he thought it was Kissler who did it but he was not sure. On the same morning, Plant Metallurgist John Dillon , approaching the plant, attempted to drive his small foreign car into the office parking lot but was blocked by a group of pickets, one of whom , a man in a plaid jacket, was not a striking employee . This man was at the right front of Dillon's car. He remarked to Dillon, "Let's tip your car over." Dillon tried to swing to the left around this man, but the latter kept pace and continued to block Dillon's ingress. By this time, Dillon's car had turned left until it was almost parallel with Mowry Avenue. Striker Thomas Crain was then near the left front of Dillon's car. The testimony of the witnesses from this point on was at variance as to what occurred . Dillon testified that, as Crain was standing in front of his car, Leo Rial (previously men- tioned in connection with Prado and Cook) drove onto Mowry and proceeded slowly in the direction of the truck entrance , that Crain left his position by Dillon's car and went into Mowry Avenue and kicked Rial's car, that this gave Dillon a moment in which to start to turn his car into Mowry Avenue from the parking lot entrance, that Crain came back and told Dillon that if Dillon hit him, he would whip Dillon's posterior, that Dillon eased his car past Crain and just after the window of his car passed Crain , he felt a bump, and that he then proceeded into the office parking lot by way of the exit road. Foreman Holt, who drove his car into Mowry Avenue from a side street and approached the office parking lot entrance , testified that he saw Crain at the left front window of Dillon's car with one hand on the roof at the top of the door and the other resting on the sill, that as Dillon started up , Crain's hands dropped down and came into the fender well of the rear wheel , that at this point Crain, whose knees were apparently bent in a stooping position , suddenly raised himself, holding onto the fender, that Dillon's car was raised enough so that the left rear wheel spun faster than the others ii Crain's account was that, as Dillon came past the entrance to the office parking lot, Dillon stopped in front of him, he walked to the window on the driver 's side, where he rested his left hand on the sill and his right hand on the roof, and asked Dillon to help them win the strike instead of pulling against them, that Dillon had replied that he was going in and no "s- o- b-" was going to stop him, that Dillon had then started up rather fast and that he (Crain) then pushed himself 9 Jennings suffered no serious injuries. He bruised his shoulder and skinned his knees as he fell into the ditch. Some testimony suggested that Jennings had started to the driver's side of the car to speak to the driver. On all the evidence, I conclude that his purpose was rather to cause the car to stop by standing in front of it 10 The record apparently failed to describe in full Kissler's demonstration with his hands, but I observed that Kissler had his hands closed in the form of fists. n Following this, Bolt tried to enter the office parking lot but was blocked He asked Winter if he was going to let him in Winter replied, "No, turn around and go home." TITAN METAL MANUFACTURING CO . 205 away from the car with his hands on the roof ,12 and that otherwise he did not rock Dillon's car nor touch the fender or bumper of Dillon's car. Holt reported to Golden what he had observed Cram do to Dillon's car. Golden considered this report and the reports received from Miller and Moore and on Friday, December 2, 1960, sent to Winter and Crain telegrams notifying them that, for acts performed on the Wednesday preceding , they were discharged without right of reinstatement 13 Golden sent no discharge notice to Kissler at that time because he felt that the identity of the men who had been reported as having broken the car window of an employee had not been sufficiently established. However, Kissler later executed an affidavit for a court proceeding in which, in part, he deposed: "The side of the car grazed me and my hands made contact with a window. I heard the glass crack as the car bumped by me." He also therein denied that he had hit the car window, insisting that the car had hit him. However, upon learning through this affidavit that Kissler was the one whose hands had come into contact with the car window, Golden, on December 19, 1960, sent Kissler a similar notice of discharge. c. Conclusions respecting the discharges Because within a month after the end of the strike all five dischargees were re- employed, the problem here is to determine (1) whether or not the Respondent's act of notifying the employees during the strike that they were discharged was an un- fair labor practice which converted the economic strike into an unfair labor practice strike, and (2) if it was not, whether or not the dischargees were treated as all other economic strikers and were reinstated at the end of the strike to the extent that they had not been permanently replaced. Most frequently, the question of the effect of discharge of a striker for misconduct arises because of a refusal to reemploy him at the end of the strike, and the problem then to resolve is (1) whether or not the striker's misconduct was of such char- acter as to justify the employer in denying him employee status, and (2), if so, whether or not the Respondent had justifiable grounds for believing in good faith that the employee had in fact engaged in such misconduct. Here, however, it must be ascertained not merely whether a discrimination occurred at the end of the strike but whether it occurred at the very moment of notification of discharge. From the fact that the Respondent did reemploy all dischargees, it might be deduced that the Respondent discharged them as a tactical maneuver with no permanent intent to deprive them of such rights of economic strikers to reemployment as might exist at the end of the strike. No testimony was given regarding the Respondent's future intent at the time the discharge telegrams were sent, and as direct evidence of the Respondent's intent as to the future was consistent with either an affirmative or negative inference, I cannot from it alone conclude that the Respondent did engage in a mere tactical maneuver. Vice President Golden testified that he discharged the five strikers for misconduct because he was concerned with the safety of the Re- spondent's nonstriking employees (i.e., replacements) and he wished to check any acts of violence against them. He acted consistently with this purpose in discharg- ing only those whom he believed to be culpable of acts which threatened the safety of the Respondent's employees. There is evidence of mass picketing or ob- struction of entrances with apparent attempts to turn employees away which, by law, might, perhaps, have justified other discharges,14 but the Respondent did not dis- charge anyone for that alone. It discharged only those who, in some way, threatened the safety of employees or performed acts designed to instill in them a fear of violence. Before November 11, 1960, the Respondent is not seriously claimed to have engaged in unfair labor practices. True, the General Counsel alleges that the Re- spondent before that date solicited the return of strikers but he does not argue in his brief that this had any causal connection with the continuance of the strike. Not 12 Crain gave a demonstration of pushing with both hands at the same height 11 Golden testified that he relied only on the reports of supervisors He apparently did not, therefore, consider Crain's act of kicking Rial's car as a basis for Crain's discharge. So Crain was discharged solely for "rocking" Dillon's car. Winter was discharged for throwing a hard object at an employee's car and therefore, I infer, not for blocking Holt from entering the plant 14 See The American Toot Works Company, 116 NLRB 1681 ; Talladega Foundry & Machine Company, 122 NLRB 125 A case sometimes cited as being contrary, Puerto Rico Rayon Mills, Inc, 117 NLRB 1355, is distinguishable because the employer's refusal to reemploy was not based on the employees' misconduct in blocking entries but was based on the unwillingness of the employees to abandon the strike. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only did the Respondent's communications with strikers have no causal connection with the continuance of the strike , but they were not, I have found, even unfair labor practices. Also, there is no contention on the part of the General Counsel that the Respondent refused to bargain with the Union before March 1, 1961, some weeks after the end of the strike. The evidence all points to a temperate ,attitude on the part of the Respondent with no inclination to undermine the Union or to subvert the policies of the Act unless the discharges be found to be discriminatory. A violation of Section 8,(a)'(3) of the Act would here require a finding of antiunion motivation as evidencing an intent to discriminate and thus to discourage union membership or aetivity.15 There is no evidence that such animus existed or that such discouragement was intended by the Respondent. It is evident that the Respondent respected the employees' right to strike although it asserted a right, as permitted by law, to hire replacements for strikers . Perhaps, even absent intent, discouragement of union membership or activity could be found if the discharges were for a cause which would necessarily interfere with the right to strike or to engage in lawful conduct while on strike . Wholly aside from the question of the possible rights of the dischargees at the end of the strike , the announcement of discharge for acts. honestly believed by the Respondent, with cause, to be unprotected activities would' not, in my opinion, be an unfair labor practice , under the circumstances of this case, even if the misconduct were held to be not sufficiently serious to bar reinstatement rights at the end of the strike. If the Respondent had merely told the five strikers. that their misconduct was such as to jeopardize their reinstatement at the conclusion of the strike, no serious contention could be made that this would have been an unfair labor practice . An announced discharge during the strike purports to make the decision not to reinstate at the end of the strike but otherwise (absent a show of opposition to the purposes of the Act ) it is not materially different until the end of the strike when the employer demonstrates whether or not he will stand on his expressed decision. In determining whether or not the Respondent's act of discharging strikers for misconduct could have the effect of converting the strike from an economic into an unfair labor practice strike, I am inclined in this case to separate the problem of what the Respondent might justify at the end of the strike (in depriving any dis- chargee of the rights of an economic striker ) from the problems of what it might justify during the strike. I shall therefore consider the conduct of the five dis- chargees from the standpoint of what the Respondent had cause in good faith to, believe, from what the object to be accomplished by the Respondent in discharging- strikers was, and in the setting of a total absence of any background of unfair labor practices. I am convinced and find that the Respondent had an honest belief that Prado' and Cook acted in a way to intimidate Rial and thereby to deter him from crossing the picket line. The manner in which Prado drove his car was certainly reckless enough and threatening enough to cause Rial to believe that Prado and Cook intended to deal violently with him . The final reckless act that of skidding in front of Rial's car and partially blocking both northbound lanes-was of such nature as to cause an accident . That it failed to do so was mere chance . Had Prado's car actually rammed Rial's car, I doubt that the General Counsel would have contended that Prado and Cook could not be legitimately discharged therefor. An assault is enough to instill fear of present physical harm without a battery . The Board has found that conduct calculated to put a nonstriker in fear of bodily harm is sufficient to justify the employer in denying the status of employee to the misbehaving striker.16 The General Counsel cites the Board's decision in Schott Metal Products Company, 128 NLRB 415, in support of his contention that following a nonstriker's car and using threatening and profane language were not serious misconduct. Per- haps the following of the nonstrikers, alone, without more, could be excused, as it was in the Schott case and as it was also in Stewart Hog Ring Company, Inc., 131 NLRB 31017 In this case , however, Prado and Cook did not limit themselves merely to following Rial. Prado's driving, which Cook apparently approved of, was designed to attempt to force Rial to stop his car by threatening physical danger from a moving automobile . The facts here justified the Respondent in the belief 15 Economy Stores, Incorporated, 120 NLRB 1, 8; Bartlett-Collins Company, 110 NLRB 395 1e Homer Gregory Co., Inc., 123 NLRB 1842; H N Thayer Company, 115 NLRB 1591; Standard Oil Company of California, 91 NLRB 783; Ekco Products Company (Sta-Brite Division), 117 NLRB 137, 148-149. 17 Consistent with this view of the law was the Respondent's lack of action with respect to the strikers identified as those who, in Robinson's car, followed striker Johnson TITAN METAL MANUFACTURING CO. 207 that Prado and Cook sought to force Rial off the road , at the very least, and that it was an assault, a threat, designed to inspire fear for bodily safety.18 That the pur- pose of Prado and Cook was not limited to a desire merely to talk could easily have been inferred by Rial or by Golden . If Prado and Cook had wanted merely to speak with Rial, one may ask why they made no attempt to do so as Rial was leaving the plant parking lot and before he was on the open highway . According to Cook's. testimony, when he did speak to Rial , it was to ask a question that was inane, because the answer was obvious . The circumstances therefore justified a belief that, the real purpose of following Rial was rather to inspire fear of bodily harm or fear of possible future danger if the strikers should learn the location of Rial 's residence.'9 The fact that, when Rial did stop , Prado and Cook acted peaceably enough would not necessarily convince either Rial or Golden that the initial intent of Prado and Cook was peaceable for, by the time that Prado ceased his reckless driving, Miller had intervened and augmented the number of persons who might be expected to oppose Prado and Cook if they had in mind more than talk. Although I did not see- Rial, I did see the others. Without Miller , Holt looked like he might have afforded insufficient physical protection to Rial against Cook and Prado . Miller is a more, robust man than Holt , and his presence would suffice, along with Holt and Rial, to deter any attempt to harm Rial . Hence, either Rial or Golden could infer that the reasons for the peaceable conduct of Prado and Cook at that moment was the pres- ence of a show of adequate forces and that this did not signify either an original or a future peaceful intent. I find on all the evidence that, in discharging Prado and' Cook, the Respondent acted on a justifiable belief that they had engaged in acts. unprotected by the Act 20 Whether or not the dischargees ' conduct might, at the end of the strike, be excused as not sufficiently serious to deprive them of the status, of economic strikers is a matter that should be raised, if at all , in connection with the allegation of discrimination in the reinstating or rehiring of strikers at the end of the strike. The incidents occurring on November 30, which resulted in discharges , as Golden was justified in viewing them , resulted in but one case of actual damage . It is not, however, unreasonable to infer from Dillon's and Holt's accounts that Crain sought to damage Dillon's small car by tipping it on its side. Holt impressed me as an unbiased and honest witness, and I find that his account is a credible one. Crain's. account of the manner in which he pushed himself away from Dillon's car is not credible . With only his right arm on the car roof over the door, Crain would have- had to turn to face ,the side of the car, raise his left hand to the roof and push with both hands to do what he demonstrated at the hearing. This appears unnatural and improbable unless it was a deliberate act. Whether or not Crain was attempting to' harm Dillon or his car, I find that the Respondent had reason to believe that Crain was attempting to do so. I find that Crain was discharged for what the Respondent honestly believed was conduct which was not protected by the Act.21 Winter's act of attempting to hit an employer's car with a piece of hard clay like- wise resulted in no actual damage . Winter no doubt felt provoked by seeing Jen- nings apparently being bumped by the car, but Winter, himself had not been touched or endangered . I conclude, therefore, that his act was not legally defensible. The fact that he failed to hit the receding car cannot be attributed to Winter's lack of intent The attempt to strike the car was to be inferred. An assault is as much an act of violence as -a battery although it results in no actual physical damage.22 The Respondent was further justified in believing that Winter might possibly engage in other acts of violence thereafter, since his disposition to violence was established. I' find, accordingly, that the Respondent entertained a good-faith belief that Winter's conduct was unprotected by the Act. In Kissler's case, no witnesses viewed the broken window immediately after Kissler's hand came into contact with it. The car, driven by Herrin , did not go into the plant but continued down Mowry Avenue to the dump , turned around and re- turned at high seed past the plant and headed toward Newark. Before it reached Newark, it was stopped by a police patrol car officer, within half an hour of the time it first passed Kissler . This officer testified that the safety-glass window of the 18 The Cambria Clay Products Company, 106 NLRB 267, 271; H N Thayer Company, 115 NLRB 1591. And see Checker Taxi Company, Inc, 131 NLRB 611 10 See H. N. Thayer Company, supra "Rubin Bros. Footwear, Inc, 99 NLRB 610. 21 Rubin Bros. Footwear, Inc., supra; Clay M. Bishop, et al., d/b/a New Hyden Coal Company, 108 NLRB 1145. 22 See Homer Gregory Co., Inc, 123 NLRB 1842 (specifically the throwing of a pop bottle) ; Ekco Products Company (Sta-Brute Division), 117 NLRB 137 (throwing tomatoes) 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD car on the driver's side had been cracked in one place in an area about the size of a fist. Other witnesses saw the same break a short while later. It was described as being a spot near the top of the glass of the window, about the size of a baseball, where the glass was virtually pulverized, so that it could be moved in and out. Longer cracks radiated down and across the window from the point of impact. Golden testified that, from having seen safety glass broken, he knew the difficulty of breaking it, and believed it inherently improbable that the window of Herrin's car could have been broken in the manner in which it was by a glancing bump such as Kissler described. The General Counsel sought to raise a doubt that the window had not already been cracked, and the Union suggested the possibility that a minor crack had been aggravated by a deliberate act of Herrin to escape a "hit-and-run shadow." Both attacked the credibility of Office Manager Moore whose own car was moving and who caught but a fleeting view of the scene, because he was, they claimed, unable to name other strikers present or give anything but a confused account of the location of other strikers (aside from Kissler and Jennings) in the vicinity. Counsel for the General Counsel and the Union suggest that because Moore was uncertain of the identity of Kissler, the window of the car might have been broken by some striker other than Kissler. I do not question the credibility of Moore. It appeared to me that he was consciously attempting to avoid testifying to anything except what he actually saw. Had Moore given more details in a more positive manner, I should have suspected that he was not relying on his memory alone. Moore appeared to me to be a man of emotional sensibility to whom the incident was distasteful. When Moore related the incident to Golden, he reported that he had seen a man he thought to be Kissler strike a blow but that Kissler was not the type of person to break a window. From this, I find that Moore was unin- fluenced by bias or animosity. Contrary to the contentions of the General Counsel and the Union, I have no doubt that Kissler, probably incensed, like Winter, at seeing what he took to be a deliberate act of running into Jennings, in a moment of anger, did in fact strike the blow witnessed by Moore. The fact that the point of impact was so near the top of the window glass suggests that the window was partially opened at the time and that the driver may have been in the process of raising it to avoid being struck by Kissler, whose posture with his fists up would have appeared menacing to him. Kissler's explanation of putting his hands in front of his face to protect himself from the car is not convincing. Mowry Avenue is shown by an exhibit in evidence as approximately 23 feet wide. Kissler described his position as 3 or 4 feet from the opposite edge of the road from that on which the car was proceeding when it came in contact with Jennings, and Kissler placed Herrin's car, as it approached him, as about at the center or a little over the center of the road toward him. It is apparent, therefore, that the car was still a matter of several feet away from Kissler when it passed the spot where he was and that Kissler had several feet in which he could have withdrawn. A grown man in full possession of his faculties who sees a car approaching dangerously close to him would not, in my opinion, turn to face the car with his fists in front of his face-he would turn to face the nearer side of the road, start in that direction, and perhaps put his nearer arm out to break the impact of the car and to assist him in jumping out of its way in case contact was made. In an attempt to prove that Kissler was innocent of wrongdoing, the General Counsel called as a witness Wayne Yorks, the man who had been Kissler's foreman, to testify that, after receiving the discharge telegram, Kissler had come to him and expressed ignorance of the cause of his discharge and said that the only thing he did was testify at "the hearing," referring to the affidavit which Kissler executed on December 14, 1960, for use in a State court proceeding on December 16. Yorks told Kissler that he would try to find out the cause for him. No questions were asked of Yorks as to whether or not he had later informed Kissler of what he had learned or as to what Kissler might have said at that time. The delay in Kissler's discharge from November 30, the date of his misconduct, to December 19, the date of his discharge, could, in itself, unexplained, raise a legitimate doubt in Kissler's mind as to the cause for discharge and could have prompted his inquiry. Since the delay has, however, been satisfactorily explained by the Respondent, I find the evi- dence concerning Kissler's statements to Yorks as entitled to no weight. I further find that the Respondent had good cause to believe that Kissler engaged in conduct unprotected by the Act. In view of the fact that, after the end of the strike, the Respondent rehired all strikers who desired to return, including the five dischargees, the act of notifying the five of their discharge during the strike could be viewed to be a tactical maneuver to discourage violence of strikers. But whether or not it was so intended by the Respondent at that time, I still find that, because of the Respondent's lack of intent TITAN METAL MANUFACTURING CO . 209 to discriminate against the strikers for any lawful exercise of the rights guaranteed them in the Act, the notification to the five by the Respondent of discharge was not, under the circumstances here found, an unfair labor practice. d. Economic or unfair labor practice strike Since I have found that the Respondent committed no unfair labor practice before or during the strike, the strike could not have been converted into an unfair labor practice strike. However, being cognizant of the fact that the Board might not agree with my conclusions, and might find the discharge notifications to be unfair labor practices, I believe it necessary to deal with the problem of causal connection,23 concerning which resolutions of credibility are necessary. To prove the necessary causal connection between the discharges and the pro- longing of the strike, the General Counsel adduced evidence that, at the first union meeting following each of the three discharge dates, the members voted not to abandon the strike until all returned, including the dischargees. Conflicts in both the testimony and the purported minutes of the meetings cast doubt on the accuracy of the evidence. The absence of accurate minutes of the critical meetings in itself arouses suspicion. The testimony was that the recording secretary became remiss in his duties and failed to record these minutes. The only entries in the minute book for these meetings were merely memorandums, entered by President Winter weeks after the meetings, based partly on notes he procured from the recording secre- tary and partly on his own memory. It does not appear that these entries were ever read or approved by the membership. They did not, as did the minutes of other meetings entered by the recording secretary before and after the three critical meet- ings, give the name of the member making the alleged motion, and one memorandum entry was in conflict with the testimony of Prado, who was mentioned in the so- called minute as having appeared at the meeting and reported his discharge. Actually, Prado had not received the notification of his discharge before the meeting. Not one of the witnesses who testified for the General Counsel could remember the name of the member who made the alleged motion not to return until the discharged strikers were reinstated. Furthermore, some of the witnesses who testified to their memory of the motion not to return to work at times related it as a motion that they would not return to work unless all did, no mention being made of the dischargees specifically.24 This suggests that if a motion was made, it was designed to maintain solidarity and to deter those who were disposed to abandon the strike and to return to work as early as late October from taking such action. If this were the case, the purpose of the motion was not to assure reinstatement of the dischargees. It is also of some significance that at no time did the Union protest the discharges or insist upon (or even suggest) reinstatement of the dischargees as a condition of settling the strike in any bargaining meeting or other direct communication with the Respondent. The first indication of protest was the filing of the charge more than a month after the discharge of Prado and Cook. Yet on November 25, 11 days after the discharge of Prado and Cook, of which the Union was aware, a bargain- ing meeting was held, but the only topic discussed that had any relation to the return of the strikers to work was that concerning the effect of the hiring of replace- ments on the job rights of returning strikers. No mention was made of the status of Cook or Prado. Also of significance concerning the question of whether or not the strikers might have abandoned the strike but for the discharges was the evidence that, before the start of the November 25 meeting the negotiating committee met with the international representatives of the Union and revealed the conditions on which they would give up the strike. According to Robinson, who, himself, was biased, they said that their minds were made up not to return to work until the dischargees were returned to work and that they would not return without a wage increase, but, if "they" wanted to get the dischargees back, they would probably go back under the same agreement that they had before the strike with the same seniority and every- 23 See Anchor, Rome Mills, Inc., 86 NLRB 1120; Jordan Bus Company, et at., 107 NLRB 717 24 Although the vote was uniformly testified to have been a standing vote, one witness testified that, during the meeting, some members, for want of seats, I infer, were stand- ing. A standing vote would entrap such members into an affirmative vote. All the wit- nesses called by the General Counsel to testify concerning the events at these meetings had a personal Interest in the outcome of this proceeding and I take their natural bias Into account. Also, their testimony struck me as tailor made and practiced, lacking the spontaneity of unrehearsed testimony. So I do not accord full credence to their testimony .concerning the wording of the motion made at those meetings. 634449-62-vol 135-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing else back to the date they went on strike with no loss of time on seniority. I hive some doubt as to the literal accuracy of this testimony. The strikers were ap- parently concerned over the retention of seniority of all the strikers and not merely that of the two who, before that date, had been discharged. If, in fact, there was mention of the dischargees in this premeeting conference, I consider it odd that no mention was made of the dischargees when the Union actually met with the Respond- ent, especially since without the consent of the Respondent, reinstatement of all strikers without loss of seniority would have required the Union to establish that the strike had been converted into an unfair labor practice strike, and the Union's best ground for claiming such a conversion was an unfair labor practice in the dis- charge of Cook and Prado. Yet, although the Union asked the Respondent about the effect of replacements on the rights of returning strikers, it did not mention the discharges, let alone claim that the strike had been converted into an unfair labor practice strike. Most of the bargaining meeting was devoted to negotiating over the provisions of a contract. It is apparent, therefore, that economic issues were still being pressed.25 There was no indication of a desire to terminate the strike merely on revocation of the discharge notices. I conclude and find that the General Counsel has not, by a preponderance of the credible evidence, established a causal connection between the several discharges and the prolonging of the strike, even assuming that those discharges could have been unfair labor practices. 2. Discrimination in the reinstatement of strikers a. The end of the strike On February 9, 1961, the Union wrote to Cantwell, the Respondent's representa- tive, making an unconditional offer on behalf of the strikers to return to work immediately. The date of the Respondent's receipt of this letter was apparently the next day, February 10. On February 10, 1961, the Respondent reemployed one striker; on February 14, six more; on February 20, nine; and at various dates there- after between February 27 and April 27, 1961, it employed or offered jobs to all other strikers who had not resigned. These dates were apparently based on vacan- cies existing or occurring, because the Respondent did not discharge replacements specifically in order to rehire strikers. b. The contentions and the evidence of jobs available From the several kinds of discrimination charged, from the evidence actually presented by the General Counsel, and from his brief, I infer that he expected the allegations of the complaint to be proved on the theory that the strike was an unfair labor practice strike, for he offered no argument concerning his theory of discrimina- tion in the event that the strike should be found to be an economic strike. Never- theless, the complaint is drawn in such a way as to be applicable to the case of an economic strike as well as to the case of an unfair labor practice strike. Since it has been found that the strike was an economic strike throughout, the Respondent was obliged to reinstate only those strikers who were not permanently replaced, but the burden was on the Respondent to show that the economic strikers were replaced before their unconditional application to return 28 and that it had no openings for other strikers who applied to return to work and who were entitled not to be dis- criminated against merely because they had been strikers 27 At the end of the strike, there were 30 strikers who had not previously resigned. This number included the five dischargees. The Respondent, over a period of 3 months from February 10, reemployed all the former strikers who desired employ- ment, including the five dischargees. The question here involved is mainly one of whether or not certain strikers were entitled to reinstatement because they were unreplaced, but there is also a question of whether or not other former strikers were entitled to jobs earlier than they were actually given them. Some of those who were rehired in their former positions had, at one time or another during the strike, been replaced by one or, at different times, by more than one replacement. The evidence presented in the Respondent's exhibit showing replacements is inconclusive, however, as to whether or not the replacement 25 This tends to negate the argument that the discharges were responsible for prolong- ing the strike. The Texas Company, 93 NLRB 1358; Anchor Rome Hills, Inc, 80 NLRB 1120 ' New Orleans Roosevelt Corp.. 132 NLRB 248 n Bartlett-Collins Company, 110 NLRB 395, affd sub nom. American Flint Glass Workers' Union of North America, et al. v. NLRB , 230 F. 2d 212 (CAD C ) TITAN METAL MANUFACTURING CO. 211 last on the job of a given striker was still filling the position of the striker on Feb- ruary 10, 1961. I notice from one exhibit introduced by the Respondent that striker T. H. Bailey was replaced on November 11, 1960, by N. P. Johnson. However, another exhibit introduced by the Respondent shows that Johnson quit his employ- anent on January 3, 1961, and no new employee is shown to have been on Bailey's job thereafter. Since Bailey was reemployed on February 14, 1961, within a reason- able time after his application for reinstatement, and in his former position,28 he was apparently reinstated and was not discriminated against, unless the Respondent has treated him as a new employee not entitled to his former seniority or other rights and privileges, concerning which there is no evidence. From the manner in which the evidence was presented and particularly because the Respondent proved only the date on which the alleged replacements started on a striker's job and did not prove the last date that such replacement occupied that position,29 I conclude that the Respondent may be laboring under a mistaken belief as to the legal rights of economic strikers. Ever since the Mackay decision, 30 it has been taken as settled law that, upon unconditional application to return to work, economic strikers are entitled to their former jobs only if not permanently re- placed.31 Very little, however, has been said about the meaning of the expression, "permanently replaced." I suspect that the Respondent takes that expression to mean that, when a new employee is hired during an economic strike, if the employer assures him of "permanent" employment, the striker whose position the new em- ployee takes is permanently replaced and that, regardless of how long the new em- ployee is on the striker's former job, the striker has immediately lost his status as an employee. Although it may be a necessary element of "permanent replacement" that an employer assures employees newly hired during an economic strike that they will not be terminated at the end of the strike to make room for a returning striker, proof of that fact alone is not sufficient to cause an economic striker to lose his status. If it were, the striker would lose his status even though the replacement worked only 1 day and then was fired for poor workmanship. In order to assure nondiscrimination in the case of returning economic strikers, the Board requires the Respondent, in proving replacement, to show that the replacement actually is employed in the position formerly occupied by the economic striker at the very time when the economic striker unconditionally offers to return; for otherwise, the Board holds the economic striker has not lost his right to reinstatement.32 The General Counsel and the Respondent presented the minimum of evidence to assist in determining the number of returning economic strikers who were en- titled to reinstatement. On February 10, 1961, the Respondent had in its employ 38 new (i.e., replacement) employees, 2 of whom quit on that very day, leaving 36, while 1 striker was rehired that same day, making a work force then of 37. From a stipulation of the parties, it was established that on November 14, 1960, there were 39 strikers who had not resigned. Two had resigned before that date. From this, it might be inferred that before the strike the Respondent's normal complement of production workers had been about 41 men.33 On the basis of maintaining a full complement of the production force, the Respondent had vacancies for at least three returning strikers on February 10, 1961, if not more, and it certainly had room for two more after the resignation of two replacements on that date, a total of five vacancies. This method of determining the number of job vacancies is not without possible difficulties, however, because the Respondent's evidence shows that no re- placements were hired at all for 10 strikers and that the replacement for another striker, Bailey, was terminated before February 10. On this basis, there could have been as many as 11 vacancies, only 6 of which ,were shown to have been refilled by returning strikers. Whether or not there was work for the remaining five types of 28 He had been paid $2 20 an hour nonincentive rate before the strike but was shown as on $2 10 base incentive rate upon reemployment, the going rate at that time for his job 29 I notice that, even though in certain cases the strikers' named "replacements" were still in the employ of the Respondent after February 10, 1961, the strikers were never- theless given their former positions upon reemployment. It is unclear in such cases whether the so-called replacements were transferred off those jobs upon the return of the strikers or whether they had been removed from such jobs before February 10, 1961. 30 N L R B. v. Mackay Radio & Telegraph Co , 304 U S. 333, 345 31 See, e g, Atlas Linen and Industrial Supply, 130 NLRB 7,61 ; Economy Stores, Incorporated, 120 NLRB 1; Bartlett-Collins Company, 110 NLRB 395, affil sub nom. American Flint Glass Workers' Union, etc. v N L R.B., 230 F 2d 212 (C.A.D C.). 33 Union Bus Terminal of Dallas, Inc, 98 NLRB 458 33 It is uncertain whether or not employee D. Howard had been counted as among the strikers He was off work on workmen's compensation at the time the strike started. He never reported as able to resume work. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs was not shown. However, in view of the number of new employees retained and old ones reinstated, the Respondent was apparently hiring men approximately as fast as it needed them to fill out its complement of production workers. Since the positions of several strikers who had resigned during the strike were never filled during the strike or afterward so far as appears, there is no sound reason to infer that those jobs actually were needed to be filled. They cannot, therefore, be counted as available openings for returning strikers. The remaining jobs of unreplaced strikers who resigned during the strike for whom no new employees were hired during the strike were all sooner or later filled by, or offered to, returning strikers with one possible exception-Jennings' former position.34 The complaint alleges that all the strikers were discriminated against by four types of conduct. Each will be considered to the extent possible on the evidence presented: .(1) Failing and refusing to return to employment 14 named strikers until certain belated dates I observe that, although some strikers other than the 14 named in this clause of the complaint were returned to the Respondent's employ as late as, or later than, those named, they are not included as specific discriminatees. The reason for the selection of only 14 is not stated. Whatever the reason for exclusion or inclusion, I need consider only the alleged delay as to the 14 named.35 Of the 14 named in the complaint as belatedly returned to employment, James Douglas alone had never been replaced 36 He was not offered reinstatement until sometime between February 16 and 2037 The exact date of offer is not proved. Douglas is shown on an exhibit as resigning on February 21, 1961. If it had any excuse for the delay in recalling Douglas, the Respondent made no attempt to reveal it at the hearing. Absent any explanation by the Respondent for the delay, there- for, I conclude that Douglas' reinstatement was unreasonably delayed from Febru- ary 10 to the date of the Respondent's offer of reinstatement. Except for Douglas, the others were not affirmatively shown to have been reemployed tardily. For them, the Respondent's exhibit shows replacements at various dates, but, as previously stated, the replacement dates shown do not include the terminal date that the new employee was on the job of a striker. Since this exhibit shows several replacements 34 The job of R. H. Gularte as Vaughn block operator was never filled by a replacement employee during the strike, but Gularte resigned on January 11, 1961. Striker Jennings was never replaced as bull block operator Upon Jennings' application to return to work, he was reemployed as an operator of the Vaughn block (Gularte's former position) at $2 25 nonincentive rate. The $2 25 rate paid Jennings when reinstated was the going rate for the job of blockman. Before the strike, Jennings had been on a $2.05 incentive base rate of pay. It does not appear that after the strike anyone was hired to operate the bull block. The Respondent's job classification does not subdivide its job category of blockman to show what kind of block an employee operates. If Jennings' job after the strike was not identical to his former job, I find it was substantially equivalent. The position of J. E Douglas was never filled during the strike, but he was not recalled until sometime around February 20, 1961. He resigned on February 21. The job of striker J. S. Sampsell was never filled during the strike He returned to his former job on February 14, 1961. The same is true of striker E. J. Greene. The jobs of dischargees Kissler and Cook were never filled during the strike. Kissler was rehired on February 14, 1961, and Cook on February 20, 1961. as The 14 are, with dates of return, which was stipulated to be within 5 days from the date of the Respondent's notice of recall: H T Booker_______________ 2/20/61 R E. Winter_______________ 2/27/61 James Douglas______________ 2/20/61 Richard Winter_____________ 2/28/61 Sam Garcia_________________ 2/20/61 J E. Jones_________________ 3/1/61 Christopher Guerra__________ 2/20/61 J A. Robertson_____________ 3/1/61 T D. Rose_________________ 2/20/61 W J Robertson____________ 3/1/61 George Westrope____________ 2/20/61 R. W. Schwartz_____________ 3/1/61 John Clift__________________ 2/27/61 A. L. Holt_________________ 3/1/61 sa I infer that J. E. Douglas (the name used in Respondent's exhibit) is the same as James Douglas (the name used in the complaint), since there was only one Douglas listed among the employees. 37The parties stipulated that in each case where the Respondent's exhibit shows the date of reemployment, this was within 5 days of the date of the Respondent's offer of employment. I Infer that the same is true for resignations shown for strikers after February 10, 1961. TITAN METAL MANUFACTURING CO. 213 for certain strikers, it is obvious that the ones shown on that job eariler than the last replacement listed must have been removed from the job to make room for the next one. Because some strikers were returned to their former positions despite the fact that they were shown to have been replaced (at some date), it is a possible inference, for want of proof to the contrary, that no replacement occupied the former position of such returning striker on the date of the latter's offer to return. Hence, it might be inferred that the last-named replacement for each "replaced" striker ceased to be employed on the former job of the so-called replaced striker before February 10, 1961. Since the burden is on the Respondent to show that the former positions of economic strikers are filled at the time those strikers unconditionally offer to return if it wishes to justify a failure to reinstate, the Respondent should have shown the terminal date at least of the last replacement for any given striker. However, in view of the number of new employees retained after the end of the strike, and in view of figures available showing the approximate complement of the Respondent's production force, it is mathematically impossible for the former positions of all returning strikers, in fact, to be vacant on February 10. Ten strikers were shown by the Respondent as not replaced during the strike. Four of these were reemployed on February 14 and one-Cook, one of the discharged strikers-was reemployed on February 20 38 Four others of the ten unreplaced strikers had resigned before the end of the strike.39 Had the evidence shown the specific jobs which were vacant on February 10, 1961, my work would have been simplified. How- ever, as nearly as I can determine, there were about five positions unfilled on Febru- ary 10 before the return of any strikers. Two more positions became vacant on February 10 when two replacement employees quit. This means that there were about seven possible job openings at that time. It is not certain, of course, that the Respondent needed men for each of the foregoing seven jobs under its production schedule. I note, however, that between February 10 and 14, 1961, seven former strikers were given their former or substantially equivalent positions. With subse- quent vacancies created by terminations of replacement employees, the Respondent hired more former strikers. Despite the lack of specific details, a consideration of the total number of replacements in the Respondent's employ on February 10, 1961, and the number of strikers actually rehired, between February 10 and 14, 1961, leads me to the conclusion that the Respondent was maintaining approximately its normal complement of production workers. In some cases, strikers were returned to their former positions although specific replacements for them continued in the Respond- ent's employ. If, therefore, such replacements had been on the jobs of those returning strikers on February 10, 1961, they must have been shifted to other jobs to make room for returning strikers, and those replacements may then, in turn, have been put on jobs of unreplaced strikers who had resigned during the strike. In any event, on the basis of the total number of employees in the Respondent's employ on February 10 and 14, 1961, 1 find that on and after those dates the Respondent had its full comple- ment of production force, with the one exception of Douglas. Hirings after Febru- ary 14 may be inferred to be the result almost entirely of newly created openings or changes in production needs. In fact, the evidence shows that the Respondent was rehiring strikers at a faster rate than the rate of separations of replacements, for, of the strikers who had been replaced during the strike, the Respondent had rehired eight between February 10 and 20, while in the same time there were only five terminations of new employees. On all the evidence, I find that replacements for all but seven of the strikers who applied for their jobs back were still in the employ of the Re- spondent 40 Those seven were returned to their jobs. All other strikers were en- titled to return only as new employees when jobs were available. Hence, I find no sa No complaint is made that Cook was tardily reemployed as is the case with dischargee Richard Winter, who had been replaced during the strike. 31I find no evidence that the positions of two unreplaced strikers (other than Jennings) were filled in the first 2 weeks after the end of the strike-the jobs of Grass, operator of small rod straightener on the first shift, and Kleve, pickle rod operator on the first shift No evidence was offered to show either a need or lack of need for such operators on that shift. As previously stated, Jennings , who had not been replaced, returned not on his exact job but on the job of another striker who had not been replaced but who had resigned during the strike. 40 The seven for whom there were no replacements on February 10, 1961, are Bailey, Cook, Douglas, Greene, Jennings, Kessler, and Sampsele. All but Cook were reinstated on February 14 Cook (one of the dlschargees) was returned to his job on February 20. The complaint does not list him as one who was tardily returned to his job. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discrimination by tardy reinstatement as to any of the 14 named in the complaint except James Douglas, whose job was vacant and yet whose recall was delayed. Despite the evidence generally prevailing of the Respondent's good faith, it must nevertheless be held that the Respondent discriminated against James Douglas by .failing to offer him reinstatement within a reasonable time after his application to return, since the Respondent offered no evidence that explained the delay. Proof .of such discrimination does not depend upon a showing of ill will toward Douglas. Even if an unreplaced economic striker is denied reinstatement through a mistaken belief as to the law, the denial of reinstatement rights to him has a natural tendency to interfere with the rights guaranteed to employees by the Act and to discourage union membership or activity 41 I find, therefore, that by delaying in offering Douglas reinstatement the Respondent engaged in an unfair labor practice in violation of Section 8(a) (3) and (1) of the Act. (2) Failure to reemploy three employees at all The complaint alleges that the Respondent failed and refused to return to em- ployment three employees-R. Silva, Ray Teague, and Dale Williams. However, the Respondent showed that it had given employment to Silva on March 14, 1961, at the same incentive base pay rate he had had before the strike, although he did not return to his former job until April 17, 1961; 42 that it had employed Teague on April 27, 1961, although on a different shift and at a lower base pay incentive rate, whereas he had been on a nonincentive rate; that Williams had resigned on April 28, 1961, presumably on being offered a job. The Respondent's evidence clearly shows that Teague was replaced by N. H. Miller from January 16, 1961, to April 18, 1961. Therefore, he had no right to reinstatement in any event. Since the Respondent offered reinstatement to all who were not replaced, the three employees listed in this section had no reinstatement rights. They were entitled only to be treated without discrimination as applicants for new employment. Obviously, they were not discriminated against because they were in fact hired. I find no violation of the Act under this allegation of the complaint. (3) Reemploying returning strikers at more arduous, less agreeable tasks, on less desirable work shifts, and at decreased rates of pay The General Counsel did not name any returning striker who was injured in any of the ways alleged in this portion of the complaint, and he did not offer any proof of comparative desirability of jobs or work shifts. Those entitled to reinstatement were offered their jobs back. Other strikers had no claim to specific jobs or specific rates of pay.43 I conclude, therefore, that the General Counsel has not sufficiently proved this allegation of the complaint. (4) Denying seniority based on prestrike service to strikers The Respondent's answer has denied each of the alleged unfair labor practices. That denial includes this allegation. The General Counsel offered no proof that seniority was denied to those for whom no replacements had been hired during the strike and who were rehired, and he identified none who had been allegedly denied seniority unless those coming under allegation (1) above were denied seniority, a fact not shown. The others, for whom replacements had been hired, were entitled only to be treated without discrimination in the consideration of their applications as new employees, without their former seniority.44 I conclude, therefore, that the Respondent has not unlawfully deprived employees who were entitled thereto of their seniority. A' See Rubin Bros Footwear, Inc, 99 NLRB 610, 612-613; Shook h Fletcher Insulation Company, 130 NLRB 519. 42 Silva's former job of draw bench helper was, at various times, filled by several new employees, the last one being B. C. Stone, who went on the job on February 6, 1961. Stone continued in the Respondent's employ until April 19, 1961. Silva was put back on that job on April 17, 1961 43 Those who got jobs received the prevailing rate for the job. In most cases the pre- vailing rate after the strike was the same or higher than the prevailing rate before the strike In some cases the new rate was a lower incentive base rate for a previous flat nonincentive rate. 44 Bartlett-Collins Company, 110 NLRB 395; Economy Stores, Incorporated, 120 NLRB 1. TITAN METAL MANUFACTURING CO. 215 C. The refusal to bargain The Appropriate Unit and the Union's Majority Therein It is undisputed that the appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act is composed of all maintenance and production employees of the Respondent, excluding the office clerical employees, guards, and supervisors as defined in the Act. It is also undisputed that the Union had, before the strike, been the collective-bargaining representative of the Respondent's em- ployees in said unit since December 1957. Even during the strike the Respondent met with the Union as the collective-bargaining representative. The sole question is whether or not the Union represented a majority of the Respondent's employees in the foregoing unit on March 1, 1961, the admitted date of refusal to bargain. As of March 1, 1961, there were in the employ of the Re- spondent 19 former strikers and 27 replacements. There is no evidence that any of the replacements had authorized the Union to represent them. It appears, there- fore, that the Respondent had good cause to doubt the Union's majority. It follows that the Respondent was justified in refusing to bargain with the Union on March 1, 1961; 45 so I conclude and find that the Respondent has not refused to bargain within the meaning of Section 8(a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since I have found that the Respondent engaged in an unfair labor practice by delaying, without justification, in accepting the application of returning striker James Douglas from February 10, 1961, to the date of the Respondent's offer of reinstate- ment, which is shown only to be sometime between February 21, when Douglas resigned, and 5 days before that date, I shall recommend that the Respondent make Douglas whole for any loss he may have suffered by reason of the discriminatory delay in offering him reinstatement, by paying him an amount equal to that which Douglas would have earned in the Respondent's employ between February 10, 1961, and a date 5 days after the date of the Respondent's offer of reinstatement or the date of Douglas' resignation, whichever was first, less his net earnings elsewhere during said period. I shall also recommend that the complaint be dismissed in all other respects. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of James Douglas thereby discouraging membership in a labor organization, the Respondent has committed an unfair labor practice affecting commerce within the meaning of Section 8(a) (3) and (1) of the Act. 4. The Respondent has in no other way discriminated in regard to the hire and tenure of its employees nor interfered with, restrained, or coerced them in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a),(3) or { 1) of the Act. 5. All maintenance and production employees of the Respondent, excluding the ,office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. On March 1, 1961, the Union did not represent a majority of the Respondent's employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 15 Jackson Manufacturing Company, 129 NLRB 460 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The Respondent has not refused to bargain with the Union within the meaning of Section 8 (a),(5) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Titan Metal Manufacturing Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Delaying in the reinstatement of returning economic strikers whose positions are not occupied by replacements on the date of the economic strikers' unconditional application to return, thereby discouraging membership in a labor organization. i(b) By any like or related conduct interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Steelworkers of America, AFL-CIO, and United Steel- workers of America, AFL-CIO, Local 5649, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, in conformity with Section 8(a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make whole James Douglas in the manner stated in the section hereof entitled "The Remedy," above. (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records in its possession necessary and appropriate for carrying out the terms of the Recommended Order. (c) Post at its plant in Newark, California, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Direc- tor for the Twentieth Region, shall, after having been duly signed by Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, where notices to employees are customarily posted. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any Other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply therewith. It is recommended that, unless the Respondent, within 20 days from the date of service of this Intermediate Report and Recommended Order, notifies the said Regional Director that it will comply with the foregoing recommendations, the Board issue an order requiring the Respondent to take the action aforesaid. I further recommend that the complaint be dismissed insofar as it alleges any unfair labor practices other than that herein found. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL make whole James Douglas for any loss he may have suffered by reason of the delay in offering him reinstatement to the position he occupied before the strike in the manner recommended by the said Trial Examiner. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, and United Steel- workers of America, AFL-CIO, Local 5649, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, in conformity with Section 8 (a) (3) of the Act. All our employees are free to become or to remain members of the above-named Unions or any other labor organization. We will not discriminate in regard to hire MILLER ROAD DAIRY, A CO-PARTNERSHIP 217 or tenure of employment or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any labor organization. TITAN METAL MANUFACTURING 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. Frederick O. Glass, Joseph E . Glass, Maurice Glass, and Roswell C. Glass, d/b/a Miller Road Dairy, a Co-partnership and Local 332, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Ind. Case No. 7-CA- 3180. January 10, 1962 DECISION AND ORDER On October 5, 1961, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action as set forth in the Intermedi- ate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respondents filed exceptions to the Inter- mediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner with the modification of section 2(g) to read: "Notify said Regional I As no exceptions were filed to the Trial Examiner's ultimate conclusion that the Respondents did not engage in unfair labor practices within the meaning of Section 8(a) (5) of the Act by refusing to bargain collectively with the Union , we adopt that conclusion pro forma and deem it unnecessary to pass upon his subsidiary finding that the requested unit limited to wholesale drivers alone was inappropriate for collective bargaining. Nor do we pass upon the Trial Examiner 's other subsidiary finding that James Hanna, a bulk-tank driver, was not an independent contractor but an employee in the unit in which the Union sought representation. 135 NLRB No. 36.