R.C. Can Co.

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 described in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices by refusing to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that the Respondent , upon request, bargain collectively with the Union. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Employer is engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. All production and maintenance employees at the Respondent 's plant in Evansville , Indiana, exclusive of office clericals , plant clericals, foremen , guards, professional employees, and supervisors as defined in the Act, constitute a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since July 24, 1961, the Union has been the exclusive representative for the purposes of collective bargaining within the meaning of Section 9(a) of the Act of all the employees in the aforesaid appropriate unit. 4. By refusing to bargain in good faith with the Union, by refusing to meet and bargain with the Union from January 17, 1962, until after March 16 , 1962, by illegally conditioning bargaining with the Union on its renunciation of unauthorized conduct of its members, and by refusing to bargain in good faith with the designated representatives of the Union since July 24, 1961 , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5 By said acts the Respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication I R.C. Can Company and United Steelworkers of America, AFL- CIO. Case No. 16-C_A-1610. Janiwary 11. 1967 DECISION AND ORDER On August 15, 1962, Trial Examiner James T. Barker issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 140 NLRB No. 56. R.C. CAN COMPANY 589 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 and the entire record in the case, including the excep- tions, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER The Board adopts as its Order the Recommendations of the Trial Examiner.2 MEMBER RODGERS, concurring : I concur in the result. i Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716 2 Insert the following paragraph in the notice immediately below the signature, NOTE -We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on February 1, 1962, by the United Steelworkers of America, AFL-CIO, herein called the Union, and an amended charge filed on February 12, 1962, by said Union, the Regional Director of the National Labor Relations Board for the Sixteenth Region , on March 13, 1962, issued a complaint against R.C. Can Company, herein referred to as Respondent , alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. In its duly filed answer Respondent admitted certain allegations of the complaint but denied commission of any unfair labor practice. Pursuant to notice, a hearing was held before Trial Examiner James T. Barker at Fort Worth, Texas, on April 23 and 24, 1962. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evi- dence, to present oral argument , and to file briefs with me. The parties waived oral argument and thereafter the General Counsel filed a brief. Upon consideration of the entire record and briefs of the parties , and upon my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is and has been at all times material herein a Missouri corporation maintaining its principal office and place of business in the city of Arlington, Texas, where it is and has been at times pertinent continually engaged in the production and sale of fiber cans. During the calendar year immediately preceding the hearing herein, Respondent in the course and conduct of its business operations manufac- tured, sold, and shipped goods and materials valued in excess of $500,000 , of which goods and materials valued in excess of $50,000 were shipped by Respondent di- rectly to States other than the State of Texas; and, during the same period, goods and raw materials valued in excess of $50 ,000 were sold and shipped to Respondent directly from States other than the State of Texas. Upon these admitted facts I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, is admitted by Respondent to be a labor organization within the meaning of Section 2(5) of the Act and I so find. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES The complaint alleges, in substance, that on January 31, 1962, at 10 a.m. seven named employees ceased work concertedly and remained on strike until 3:45 p.m. the same afternoon; 1 that on the same day at approximately 3 p.m. afternoon shift em- ployee Gerald Williams observed the picket line and joined the strike and remained on strike until February 1, 1962, that seven of the named strikers applied uncondi- tionally for reinstatement at 3:45 p.m. on January 31 and Gerald Williams similarly applied unconditionally for reinstatement at 3 p m. on February 1; and that Re- spondent refused until February 19 to reinstate the eight employees named in the complaint because they had engaged in union or concerted activities. The Respondent's contention appears to be that the employees removed them- selves from the protection of the Act by engaging in an unprotected "wildcat" strike in derogation of the exclusive authority they had conferred upon the Union to bar- gain in their behalf. I comprehend Respondent's further contention to be, in sub- stance, that, in any event, production and manning adjustments made solely to meet the exigencies of the strike were such, in view of a sufficiency of inventory, to ren- der unnecessary, until February 19, the service of the eight alleged discriminatees.2 Background Facts In Respondent's Arlington, Texas, plant on January 31, 1962, were employed 47 production and maintenance employees working in the (1) refrigerated, (2) spiral tube and can, (3) convolute, or (4) general janitor and maintenance departments. At times pertinent, Lloyd Smith was production manager; 3 Verne Hargraves was plant superintendent; and George Tekell and Richard Cargill were foremen. The parties stipulated to the supervisory capacity of each. Pursuant to a stipulation for certification upon consent election, the Union on May 29, 1961, was certified as collective-bargaining representative of Respondent's production and maintenance employees 4 Respondent and union representatives met initially for purposes of collective bargaining in June 1961 and again in July. There- after, until January 8, 1962, there appear to have been other collective-bargaining meetings, but the record does not reflect when. At all contract negotiations the Union had been represented by an agent of the International, there not having been at times pertinent a local to which the employees belonged and through which they were represented. There has been, however, at all times pertinent an employee bar- gaining committee of three, consisting fo Milford Scott, Martin Brewer, and Paul Huffman who have attended bargaining sessions. At an undisclosed juncture in 1961 the parties agreed to invoke the services of the Federal Mediation and Con- ciliation Service and a commissioner of the service arranged and presided at the bargaining meetings. One such meeting was held on January 8 when representatives of the parties met. An additional meeting was scheduled for the next day, but weather conditions prevented it from taking place. Between January 8 and 30 no further negotiations took place, and as of January 30 no date for a meeting had been set. In the meantime, on January 25, a leaflet had been prepared in the office of the International which Staff Representative Lee on January 28 delivered to the home of employee Scott 5 The leaflet, addressed to "All Employees-R.C. Can Co." and designated as being from the United Steelworkers of America, urged employees to attend "a meeting at the UAW Hall in Arlington, at 7 p m. Tuesday, January 30." In pertinent part it stated further: We have been in negotiations with the Company since June 13, 1961, trying to reach an agreement on a contract covering hours of work, working condi- tions, wages, and etc. The Company will not meet with us unless they have their well-paid attorney with them and the result is meetings have been held only at the convenience of the attorney. 1 The evidence establishes that eight employees joined in the walkout. However, James Galley subsequently entered the military service and the complaint does not name him as an alleged discriminatee 2 The Respondent made no closing argument, filed no brief, and its answer was essentially a general denial of the allegations of the complaint 8 On March 1, 1962, Smith became plant manager and held that position at the time of the hearing herein. Case No 16-RC-2909 (not published In NLRB volumes). General Counsel's Exhibit No. 3, see Appendix A. R.C. CAN COMPANY 591 The following day, January 29, after he had clocked out for the day, Scott stood by the plant exit and handed the leaflet, and others that he had prepared, to each departing employee, and left a copy of the leaflet in the automobiles of night-shift employees parked on the plant parking lot. Production Manager Smith came on to the parking lot and entered his automobile while Scott was thus engaged, but Scott did not deliver a leaflet to him. Scott also left a leaflet in the automobile of Fore- man Tekell.6 On January 30, as scheduled, a union meeting was held at the UAW hall in Arlington, Texas. Present was J. A. Lee, staff representative of the Union, whose decision it had been to call the meeting. Lee had participated on behalf of the Union in the initial June 1961 bargaining sessions and in subsequent negotiations Also present were Milford Scott and Martin Brewer of the employee negotiating committee, and employees Robert Turner, Andrew Hendley, Alva Lynch, Steve Giva, and Marcellus Threlkeld, as well as the wives of some of them. At the meeting Lee reported that he had encountered difficulty in scheduling collective-bargaining meetings with the Respondent and further stated that the Union had made many concessions in order to reach an agreement, but that "the Company had given very little." He further stated to the employees that, in negotiating, the parties had "worked from principles entirely" and did not have an agreement on seniority and had had no discussions as to wages. Lee further stated that in his opinion the "Company was not actually interested in reaching agreement." As had been the case at previous meetings of the employees, some of the employees present expressed a desire to strike but Lee endeavored to discourage them and ad- vised them that "we wanted to do everything possible before we did have a walkout." Lee recommended against the strike. No strike vote was taken 7 and no understand- ing was reached as to a future course of action to be taken. The following morning, January 31, at 10 a.m. at the completion of the third hour of the morning shift and when the customary 10-minute work break commenced, eight employees walked out of the plant and met at a nearby bowling alley pursuant to a word-of-mouth arrangement that had that morning been made. The plan of action originated with employee Milford Scott who at approximately 9 a.m. talked with Martin Brewer, a fellow member of the employee negotiating committee. He enlisted Brewer's support and assistance in the plan. Brewer agreed to walk out at 10 a.m., to meet at the bowling alley, and to, in the meantime, ask other employees to join them. Scott contacted approximately five employees in the plant asking them to attend a "meeting" at the bowling alley at 10 a.m To some he stated the purpose of the meeting as being "to discuss plans to get the Company to negotiate with us " Brewer similarly contacted two employees asking them merely to attend a "meeting" at the bowling alley.8 At 10 a m. when the customary 10-minute morning break commenced, employees Milford Scott, Martin Brewer, Robert Turner, Marcellus Threlkeld, Alva Lynch, Steve Giva, Andrew Hendley, and James Galley left the plant and met together at a bowling alley, some 11/2 miles from the plant premises. They did not punch out on the timeclock The employees made their exit from the working areas of the plant through a corridor or passageway which led to the employee cafeteria to which many employees normally and routinely retired to spend their l0-mintue break. Employees customarily do not leave the plant premises during the rest period, and when they do, they do not punch out After some of the eight employees had passed the cafeteria entrance and were moving toward the plant exit, they passed and were observed by Plant Superintendent Hargraves There was no exchange of conversa- tion Employee Robert Turner was carrying his lunch box. Before leaving the building the employees stopped while Scott returned to speak to Foreman Tekell in the plant.9 Scott credibly testified that he told Tekell that "(w)e were holding a meeting at the bowling alley and that we were going to try to get some pressure on the Company to meet with us." He further remarked, in effect, that by this course of action he would probably get Production Manager Smith's "blood pressure up." As employee Andrew Hendley was leaving the plant he spoke to Foreman Carg.11 telling him without further explanation that he was "going to a meeting" and "would be back after while." 10 Upon leaving the plant the employees went in three or four automobiles to the nearby bowling alley. u The foregoing is predicated on the credited testimony of Scott and Lee. The credited testimony of J A Lee s The credited testimony of Milford Scott and Martin Brewer e A composite of the credited testimony of Milford Scott, Robert Turner, and Martin Brewer. Tekell was foreman of the convolute and the spiral tube and can departments 10 The uncontradicted and credited testimony of Andrew Hendley. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At .the bowling alley the eight employees sat in a booth and over coffee engaged in an informal discussion of the alleged "stalling" tactics of Respondent in negotiating with the Union. The January 8 bargaining session and the concellation of the session scheduled for January 9 was discussed. The group considered the progress or lack thereof in bargaining and: What we should do to make the Company be with us more often, try to get them to negotiate with us. what we could do to get the Company, you know, to meet with us more often, get continuous meetings and everything like that, get this contract settled." The entire conversation lasted approximately 30 minutes and at this juncture Scott telephoned Union Staff Representative Lee. He informed Lee that approximately eight employees had "walked off the job" and "were holding a meeting in the bowling alley and ... would like to have him come out." 12 Without awaiting Lee's arrival, seven of the eight employees returned to the plant premises where they fashioned makeshift picket signs on which were printed only the words "On Strike" and picketing commenced at approximately 11 a.m.13 Em- ployee Lynch soon departed for his home where he secured materials from which, upon his return to the plant 30 minutes later, were constructed additional signs of the sandwich board variety bearing the same inscription, "On Strike." These signs were worn by the patrolling pickets who also carried one of the original signs. Picketed were the shipping and receiving entrance on the southwest side of the plant, and the entrance to the parking lot from which access is gained to the separate management and employee entrances on the southeast side of the plant. Each of the two stations was patrolled at any given time by one pair of pickets only throughout the picketing which lasted continuously for nearly 41/2 hours, or from 11 a.m. until approximately 3:30 p in., the same afternoon. Each of the eight individuals who departed the plant at 10 a m. engaged in some picketing, and except for instances otherwise described herein or for a brief interval spent at the bowling alley for refreshments and discussion, each remained across the road from and in close prox- imity to the plant while not picketing.14 In the meantime, after the picketing had commenced, Staff Representative Lee, in response to Scott's telephone call, had driven to the bowling alley. He had passed the plant en route and had observed the picketing. Not recognizing anyone at the bowling alley as an employee of Respondent, Lee drove to the plant arriving there soon after 11 a in. He conversed with Milford Scott and Robert Turner in an effort to learn what had transpired.15 In conversing with Scott, Lee expressed a "wish" that the group "hadn't walked out" but stated to Scott that their activity was "protected" and advised that the individuals offer themselves for work "unconditionally." 16 The employees refused to return to work at this time.17 Lee who had decided to return to the bowling alley further told Scott to send "the other boys . . on down" to the bowling alley so that he could "discuss the situation with them." Lee left, accom- panied by Robert Turner. and went to the bowling alley 18 Lee again talked briefly with Scott, Brewer, and Galley who directly followed him to the bowling alley, but the record does not reflect the substance of the discussion. At different times until approximately 3:30 p in , Lee talked "the situation" over with several of the eight strikers.19 At 2:30 p.m. Milford Scott again left the scene of the picketing and returned to the bowling alley where he saw Staff Representative Lee and striking employee Turner, as well as four afternoon shift employees, who were scheduled to commence work at 3.30 p m., including Paul Huffman, a member of the employee bargaining committee. During the 20-minute period that followed, Lee again advised the employees to cease picketing and return to work. It was decided that the pickets 11 A composite of the credited testimony of Milford Scott, Martin Brewer, and James Turner. 12 The credited testimony of Milford Scott. is Andrew Headley stayed at the bowling alley until 11:45 a .m., when he returned to the plant and picketed for approximately 15 minutes. 14 A composite of the undisputed and credited testimony of the employee witnesses. 15 The credited testimony of J. A. Lee. 11 The credited testimony of Andrew Hendley. 17 The credited testimony of Milford Scott. 18 Turner credibly testified that he picketed from 11 a.m. to 12 in., and upon leaving with Lee did not return to the vicinity of the plant until approximately 3 p.m. 19 The foregoing is based on a composite of the credited testimony of Lee and Scott. R.C. CAN COMPANY 593 would be withdrawn and the strikers, through a committee of three, including Scott, Brewer, and Paul Huffman, the employee bargaining committee members, would meet with Production Manager Smith and offer to return to work 20 Upon returning to the plant at approximately 3.30 p in , Scott observed waiting on the roadside across from,the plant two other afternoon shift employees who had not been present at the bowling alley. The pickets and the employees present were informed that picketing would cease at 3:30, and at the appointed time picketing did stop.21 At approximately 3:45 p .m., the committee consisting of Scott, Brewer, and Huffman entered the plant and met with Production Manager Smith. Milford Scott advised Smith that he had been selected as spokesman for the group "and that they would like to come back to work." Smith credibly related the incident as follows: 22 I told Milford that we would have to make an investigation and he asked how long would this take and I stated that it would take time to complete the investigation and that I would notify them when for them to return and Milford asked about the second shift and Paul Huffman was in the group and I asked Paul did he want to come back to work and he said, "Yes, sure," and I told him to come on in and Milford asked about some of the boys' personal things and I said I didn't see any harm in them coming and getting those. When the employees requested permission to obtain their personal belongings, Smith expressed surprise that they would cross their own picket line. Scott explained that the picketing had ceased. Upon the completion of the conference, Milford Scott reported its substance to those employees of both the day and afternoon shifts who were waiting outside the plant. Paul Huffman, who was scheduled to commence work at 3:30 p.m., returned to work as did other afternoon shift employees who had remained out of the plant After obtaining personal belongings from within the plant, the eight employees who had picketed left the plant premises.23 The following morning, February 1, commencing at approximately 6:30 a.m., seven of the employees named in the complaint began assembling at the employee entrance to the plant, and all had arrived before their scheduled worktime, which was 7 a.m. for some and 8 a.m. for others Gerald Williams was not among them.24 From a vantage point outside the plant entrance, they observed through the glass entrance door that none of their timecards were in the rack where such cards are kept. While the employees were assembled near the entrance, two employees who had not struck entered the plant and soon thereafter Foreman Cargill came out of the plant and spoke to the group. Milford Scott credibly described the incident as follows: Richard Cargill come out and told us we weren't supposed to be on the com- pany premises, and at that time I asked him why we weren't supposed to be on company premises unless we were fired. And he said no, we weren't fired, we were under investigation. And he said that we couldn't be out there block- ing the doorway or threatening them, and we told him that we weren't doing either one of the two and that we just come to see if our timecards was there so we could punch in and go to work. And he said, "No, your cards aren't there," and that we were still under investigation. Someone asked how long it would be and he said, "Your lawyer will have to contact our lawyer. The seven employees remained until 8 a.m., and when their cards were not placed in the rack they left the premises 25 Thereafter, on the same day, each of them executed separate letters prepared by Staff Representative Lee of the Union , addressed to Production Manager Smith applying unconditionally for reinstatement .26 The letters were mailed and were received by Respondent the following day.27 Later that day, Lee telephoned Smith 20 The credited testimony of Scott, Turner, and Lee. 31 The credited testimony of Scott. 23 The facts relating to this episode are not in dispute and the testimony of Scott and Brewer corroborate Smith's 13 The credited testimony of Milford Scott 24 The evidence relating to his participation in the strike and a resolution of the validity of the complaint's allegations relating to Gerald Williams is discussed below 25 A composite of the undisputed and credited testimony of employee witnesses. 20 The undisputed credited testimony of Lee and the employee witnesses 27 General Counsel's Exhibits Nos 2 ( a) through 2(h). 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and asked him if he were going to reinstate "the employees who had walked out " Smith answered that they were "under investigation." 28 Subsequently, on February 5, at approximately 8 a.m., seven of the eight employees in question went to the plant premises. Gerald Williams was not present. Milford Scott and Martin Brewer entered the plant and spoke with Production Manager Smith while the other employees waited outside. Scott informed Smith that the employees had been advised by a representative of the Board's Regional Office to contact him Scott told Smith that the employees were ready to return to work. Smith, who had received and perused Scott's application for unemployment com- pensation, asked Scott, "Is this true, that he had quit?" 29 Scott said that it was not true. Smith informed Scott and Brewer that the employees were still under inves- tigation. Scott and Brewer left and reported to the other employees the substance of the conference. By separate letters dated February 12, the eight employees named in the complaint were advised that Respondent "would again have need of [their] services com- mencing Monday, February 19, 1962." Pursuant to the letters, each of them returned to work on February 19 (except Gerald Williams who returned on Feb- ruary 20) and were reinstated without loss of benefits or seniority.30 Gerald Williams Gerald Williams was on January 31, employed as a bag sealer on the 2-inch refrigerated line on the second or afternoon shift, scheduled to commence work at 3.30 p in At approximately 2:45 p.m. on January 31, Williams arrived at the plant premises. He observed the picketing and asked Milford Scott "what was going on." Scott explained that the group had "held a meeting and decided to see how many of the other men would stay out with us." Williams said that he was not going to cross the picket line.31 He remained on the premises until shortly after 3 p.m. and left The next morning he spoke with Milford Scott who informed him that the employees who had "walked out that morning" were under investigation and advised him to go to the plant and to see "what had happened" and if his card was not in the rack to contact Lee. He returned to the plant that afternoon at approxi- mately 3:30 p.m. but found that his timecard was not in the rack. He went into the plant but not seeing any supervisory personnel spoke to an employee who informed him that the second shift had been discontinued. Williams left the plant and reported the incident to Staff Representative Lee by telephone. On February 5 or 6 he executed and mailed a letter which had been prepared for him by Lee in which Williams made unconditional application for reemployment.32 Subsequently, as above found, he received a notice to return to work on February 19. He returned to work on February 20 and was thereafter employed as a bag sealer on the 2-inch biscuit line until he voluntarily terminated his employment on or about March 1.33 Conclusions as to the Status of Strikers The threshold determination essential to be made is whether, as Respondent con- tends, the strike was unprotected; for if this issue is resolved favorably to Respond- ent, the complaint fails and a consideration of the Respondent's other defenses would be rendered unnecessary. The credible evidence of record establishes that contract negotiations with the Respondent on behalf of the Union had at all times been conducted by an agent of the International. While a three-man employee negotiating committee was extant and members thereof attended bargaining sessions, the evidence does not reveal affirmatively the extent of the committee's participation in the bargaining, or if it possessed actual authority and power to advise, modify, or delimit the bargaining actions or decisions of the International representative. But as I comprehend the General Counsel's case the complaint is not premised upon the existence of authority on behalf of the bargaining committee to act separately and bind the Union, but upon a theory that the employee strike which took place was consonant with and 28 The credited testimony of Staff Representative Lee. 20 The unemployment compensation application contains on its first page a statement, "I quit due to a dispute over wages and contract negotiations " 30 James Galley did not return to work, having, on February 7, informed Production Manager Smith that he was entering the military service. a A composite of the credited testimony of Gerald Williams and Milford Scott 33 The letter stated prefatorily that Williams had reported to work on his regular shift on February 1 but was denied employment. 11 The credited testimony of Gerald Williams. R.C. CAN COMPANY 595 solely in support of the union bargaining efforts as carried on by the International and not in derogation thereof.34 Employee strike action herein occurred against a background of inability on the part of Respondent and the Union to reach agreement on terms of a collective- bargaining agreement. In the context of rumors concerning the status of bargaining, Union Representative Lee upon the advice of employee members of the negotiating committee and other plant employees held the January 30 meeting to "explain to the membership the progress or lack of progress on negotiating a contract." The leaflet prepared in Lee's office and delivered by Lee to Scott for distribution clearly depicts union dissatisfaction with the progress of bargaining, including the infrequency of the meetings. Lee's statement to the employees assembled at the January 30 meeting was an amplification of the same theme. In its inception, the walkout which occurred the following day was understood by its participants to relate to the unsatisfactory progress of negotiations, attributable, in the view of Lee and the striking employees, to the Respondent. Thus, in initiating the action, Scott, chairman of the negotiating committee, envisaged a meeting "to discuss plans to get the Company to negotiate with us" and he communicated this purpose to Martin Brewer, a fellow member of the negotiating committee and to other employees he contacted during the hour before the walkout. I am convinced that those employees who were requested merely to attend "a meeting at the bowling alley" deduced its essential purpose from their awareness of the status of bargaining or from their attendance at the union meeting the previous night. Moreover, they would not normally have departed the plant premises in midmorning nor have jeopardized their employment status for a trivial purpose. The precise course of action to be taken to carry out the walkout's objectives crystallized during the discussion which followed at the bowling alley, and the evidence relating to those discussions shows clearly that the employees were motivated solely by the uniform desire to force the Company to meet more frequently for the purposes of collective bargaining. The Board and courts have long held employees who cease work to force correction of grievances relating to a term or condition of employment, or, as here, to discuss settlement of collective-bargaining negotiations are engaged in protected concerted activity. And protection extends to employees who concertedly engage in this activity even though it is carried on by a minority of the employee contingent.35 However, Respondent's contention that the instant walkout was unprotected appears to rest upon the doctrine of the Draper case,36 wherein the court stated: It is perfectly clear not only that the "wild cat" strike is a particularly harmful and demoralizing form of industrial strife and unrest, the necessary effect of which is to burden and obstruct commerce, but also that it is necessarily destruc- tive of that collective bargaining which it is the purpose of the act to promote. Even though the majority of the employees in an industry may have selected their bargaining agent and the agent may have been recognized by the employer, there can be no effective bargaining if small groups of employees are at liberty to ignore the bargaining agency thus set up, take particular matters into their own hands and deal independently with the employer. The whole purpose of the act is to give to the employees as a whole, through action of a majority, the right to bargain with the employer with respect to such matters as wages, hours and conditions of work. Minority groups must acquiesce in the action of the majority and the bargain- ing agent they have chosen; and, just as a minority has no right to enter into separate bargaining arrangements with the employer, so it has no right to take independent action to interfere with the course of bargaining which is being carried on by the duly authorized bargaining agent chosen by the majority. The proviso to section 9 above quoted, preserving to individuals or groups of employees the right to present grievances to the employer, negatives by nec- is Rejected for this reason was Respondent's offer into evidence of the Union's constitu- tion for the purpose of showing the highly centralized nature of the Union and that em- ployee committees have no authority thereunder to bargain on behalf of or bind the International Union. 35 See Vogue Lingerie, Inc, 123 NLRB 1009, 1011, enfd as modified in other respects 280 F 2d 224 (C.A. 3) (30 out of 200 employees). sa N L R B v. Draper Corporation, 145 F. 2d 199 (C A 4), denying enforcement of 52 NLRB 1477 681-492-63-vol 140 39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD essary inference the right on their part to call strikes for the purpose of in- fluencing the bargaining being carried on by the chosen representatives of all the employees. In the Draper case, as in other leading court cases applying its principle, the employee strike action found unprotected was dissident action to achieve a stated purpose contrary to and at odds with a bargaining decision of the chosen and exclusive employee bargaining representative.37 Except that the instant strike was carried out in disregard of the "advice" and "wish" of Union Representative Lee, there is a total lack of evidence herein supporting a conclusion that the strike's purpose or effect was to derogate from the Union's bargaining status or, to cause the Respondent to bargain separately with the strikers. Pertinent in the instant matter is the statement of the Board in the recently decided Sunbeam case.38 This is not a case where the designated bargaining agent has taken some final action which is within its sole authority and the strike action of the em- ployees is the result of dissatisfaction with their chosen bargaining representative and is taken for the purpose, or has the effect, of bringing pressure upon their representative to take some different action. [Footnote citation deleted ] The group of employees who struck and picketed was not a dissident group but, rather, gauging from the bargaining committee membership of Scott and Brewer and the group's support of the union-called meeting on the night previous, was one comprised of the core supporters of the Union. The avowed and expressed purpose of the walkout and subsequent picketing was to cause Respondent through concerted economic pressure directed against it, to modify its approach to bargaining, which the Union had, in effect, labeled in its leaflet and in Lee's oral report on January 30 as dilatory and lacking in good faith. Entirely absent is evidence of employee dissatisfaction with the Union's conduct of bargaining negotiations or of an intention to usurp its bargaining functions or status by forcing the Company to bargain directly with the employee group. Although the employees' action was contrary to Lee's advice, they immediately apprised Staff Representative Lee of their action and sought his counsel. Although they refused Lee's advice to return to work, it appears that the group was hopeful of achieving success in their original objective by having other employees particularly from among the night shift join the strike. This does not suggest a rejection of the collective-bargaining authority of the Union, but rather a desire to augment it. Lee's reservation concerning the walkout appears to relate to its tactical wisdom and not to its legality, for he expressed the opinion that the walkout was "protected." In the circumstances, it would stretch matters to say that the strikers were endeavoring "to take particular matters into their own hands and deal independently with the employer." 39 Rather than having the effect of undermining the Union in its representative bargaining capacity, the action was designed to support and strengthen the Union's bargaining position. That the action may have been ill-advised and ineffectual does not render it unprotected. The walkout came speedily to the attention of Foreman Cargill, Superintendent Hargraves, and Production Manager Smith and its objectives ("to discuss plans to get the Company to bargain with us") was made known in its inception to Foreman Tekell. Accordingly, any contention that Respondent was unaware that the walkout related to the status of the collective-bargaining negotiations is tenuous indeed. Moreover, if Respondent harbored any doubt as to the Union's support of the strikers it was dispelled on February 1 when Lee contacted Manager Smith seeking their reinstatement. Further the failure to notify an employer in advance that a strike may occur does not render the strike unprotected if it is otherwise protected acivity?° sr See Harnischfeger Corporation v N L R B , 207 F 2d 575 (C A. 7), denying enforce- ment of 103 NLRB 47; and Plasti-Line, Inc, et al, d/b/a Sign Fabricators v N L R B, 278 F. 2d 482 (C A. 6), denying enforcement of 123 NLRB 1471 NLRB v American Manufacturing Company of Texas, 203 F 2d 212 (C A. 5), denying enforcement of 98 NLRB 226, m Sunbeam Lighting Company, Inc., 136 NLRB 1248, Members Rodgers and Leedom dissenting. 30 Cf. N.L R B v. Draper Corporation. supra, at 203 40J. A Bentley Lumber Company, 83 NLRB 803, 811, footnote 13, enfd. 180 F 2d 641 (C A. 5) ; N L.R. B. v. Cowles Publishing Company, 214 F 2d 708 (C A. 9) ; cf N L R B v Ford Radio & Mica Corporation, 258 F . 2d 457 (CA. 2), setting aside and remanding 115 NLRB 1046. R.C. CAN COMPANY 597 As the strike was not for an improper objective, but for the sole purpose of lending support to the Union and strengthening its bargaining position, I conclude and find that the conduct of the employees constituted "concerted activities for the purpose of collective bargaining" expressly protected by Section 7 of the Act,41 and, as the strike was economic in nature, the employees who engaged in it were entitled to reinstatement rights accorded economic strikers. The Refusal To Reinstate On Friday, January 26, the 21/4-inch can line in the refrigerated department was closed down because of a sufficiency of inventory in that size of container. The employees thus made available for assignment were transferred on January 29 to the 2-inch refrigerated can line on the newly resumed second or afternoon shift 42 On the day shift on January 31, when the walkout occurred, the Respondent was operating a machine in the spiral tube and can department; one in the convolute department; and the 2-inch can line in the refrigerated department In addition, the 2-inch refrigerated can line operated as scheduled on the afternoon shift on January 31 Three strikers, Andrew Hendley, James Galley, and Alva Lynch, were assigned to the 2-inch refrigerated can line on the day shift. Robert Turner worked in the spiral tube and can department; Milford Scott and Marcellus Threlkeld worked in the convolute department; while Martin Brewer and Steve Giva were employed in the general and maintenance department. Gerald Williams was assigned to the 2-inch refrigerated can line on the afternoon shift After having been apprised by Superintendent Hargraves shortly after 10 a.m. of the identity of the strikers, and after observing the picket line that had been set up, Production Manager Smith conferred with Superintendent Hargraves and Foreman Cargill in order to schedule operations for the following day. The plan, which had been completed before noon on January 31 called for cessation of the afternoon shift scheduled for the next day and the assignment of those employees to the day shift commencing at 7 a.m., February 1. As the result of some reshuffling of assignments, production was carried on during the period February 1 to 19 by the employee contingent as it was constituted when the strike commenced, reduced by the services of the eight strikers and by James Galley who had entered the military service. No new hires were made. During the pertinent period, Leadman James White assumed additional duties in the convolute department that he had not previously performed; and a personnel department employee with previous shipping and receiving experience assisted the employee inexperienced in these duties, who had replaced Martin Brewer. During the same period employees assigned to the 2-inch refrigerated can line worked a total of 6 hours overtime per employee 43 Shutdowns of the 21/4-inch can line are not uncommon. The 2-inch refrigerated can line is seldom shut down. It has been Respondent's practice during previous shutdowns to assign the affected employees to other plant tasks 44 Conclusions It is beyond dispute that the Respondent is under no obligation to rehire economic strikers who have been replaced or whose jobs have been abolished during the strike.45 Likewise, Respondent is entitled to have its business conditions immediately after the strike taken into consideration in connection with its obligatons to reinstate strikers.4e The facts reveal, however, that when at 3.45 p.m the employees abandoned the strike and offered unconditionally to return to work, no replacements had been hired and the arrangements that had been made for the following day's operations were emergency and temporary in nature designed solely, as Smith concedes, to meet the uncertainties of a strike of unknown duration. The revised work schedule was not intended and did not have the effect of abolishing the strikers' jobs in the normal 41 See Sunbeam Lighting Company, Inc, supra 42 The second shift had not operated on January 26 or for some days prior thereto. 43 The foregoing is predicated on the credited testimony of Production Manager Smith, as amplified, in part, by Respondent 's Exhibits Nos 4 and 5. 44 A composite of the credited testimony of Andrew Headley, Alva Lynch, and Produc- tion Manager Smith. 45 N L R.B. v . Mackey Radio & Telegraph Co , 304 U S 333 ; United Grinding Service, Inc, 118 NLRB 67, 76. 4° See, e.g, N L.B B v Bell Oil & Gas Co , 98 F. 2d 405, 409 (C A 5), rehearing denied 99 F. 2d 56 (C.A. 5). 59S DECISIONS OF NATIONAL LABOR RELATIONS BOARD sense.47 The strike was short-lived; and the strikers' unconditional offer to return to work was so soon made as to convincingly negative any assumption that business conditions had been affected by the strike. Respondent through Smith advances two explanations for not immediately reinstating the strikers Initially, Smith contends that he desired to investigate "why [the strikers] had walked out" and to consult with counsel who was out of the city. Arguendo from the facts determined from the investigation Respondent could then conclude whether the strike was unlawful or unprotected, and if there had been strike violence or misconduct (although the record suggests the strike was carried on without strife or overt hostility). Of course the right of an employee, who has engaged in a lawful economic strike and who has not been replaced, to reclaim his job-unless he forfeited the right by strike misconduct-is well established. For an employer to deny reinstatement to an employee who on all the aforesaid grounds qualifies for reinstatement, is to engage in conduct violative of the Act.48 The Board and courts have held that when em- ployees are in fact engaged in protected activities an employer's mistaken observation or beliefs, as well as his motives in discharging or refusing to reinstate him, are immaterial as a defense.49 Thus the reason advanced by Smith would appear to lack validity as a defense to his refusal to reinstate the strikers in the circumstance. But in any event, this consideration aside, I am convinced from the evidence that Smith was aware of the strike's purpose virtually from its inception. Further, it is noteworthy that if doubt lingered in Smith's mind concerning the objective of the strike, he made no effort to inform himself by seeking information from the strikers themselves, from the three-man committee who met with him at the termination of the strike, or from representatives of the International. Rather, after the passage of 5 days he found explanation, readily accepted, in the unemployment compensation claim statements of the very individuals whose verbal explanation he refrained from soliciting. Augmented by statements of some nonstriking employees Smith rested his investigation. His conduct, in the circumstances, appears inconsistent with a sincere effort to apprise himself of the strike's causal factors and its purpose; and suggests a search for a pretext in which to cloak a discriminatory act. Smith's assertion that he desired to consult with counsel is equally unconvincing. It is doubtful that Smith remained long uninformed concerning his legal rights or recourse for within 2 hours of the strike's commencement he had twice conferred with counsel, the senior partner of the attorney Smith asserts he desired later to consult.50 Thus, when the strike ceased and the strikers offered their services, I am convinced Smith had been apprised of his essential legal rights 51 and his delay in reinstating the strikers for the purpose of additional consultation with counsel, who, in any event, returned to the city on February 2, while perhaps personally desirable to him did not remove his continuing obligation to recall the strikers. Accordingly, I find that these reasons advanced by Respondent in defense of the complaint's allegations lack merit, and as it has been found and concluded that the strike was a protected concerted activity and further, as the record is devoid of evidence even suggesting strike misconduct, it follows that the strikers were entitled to be reinstated upon their unconditional request unless Respondent was excused from doing so on some legally valid ground. This ground, contends Respondent, derives from a sufficiency of inventory render- ing the services of the strikers unnecessary until February 19 when they were rein- stated. Obviously, this contention is without merit as a defense to Respondent's re- fusal to give employment to the strikers on February 1 after the brief walkout of some 41/2 hours had ended, for, as has been found, Smith revised the work schedule after 47 Smith testified that upon observing the picket line he met with assistants to "work out a schedule for the next day," and thereafter on the morning of the walkout informed counsel that under the revised work schedule supervisors "would have to plug in on their breaks and what-have-you and help out " 49 Smith admits he understood the employee reinstatement request to be an uncondi- tional one and no contention is made that it was not a valid one 40 See Cusano d/b/a American Shuffleboard Co v N L R B , 190 F 2d 898, 902-903 (C.A 3), enfg 92 NLRB 1272 ; Salt River Valley Water Users' Association v N L R B , 206 F 2d 325, 329 (C A 9), enfg. 99 NLRB 849 ; N L R B v Industrial Cotton Mills (Division of J P Stevens Co ), 208 F 2d 87, 91-93 (C.A. 4) Cf. N L R B v Ford Radio & Mica Corporation, 258 F 2d 457 (CA 2). 60 In this respect of Wheatland Electric Cooperative, Inc v N L R B , 208 F 2d 878, 882-883 (C A. 10) 51 Smith's testimony on cross-examination concerning the substance of his telephone conversations with counsel on the day of the strike was evasive and unconvincing. R.C. CAN COMPANY 59 ^Y the strike commenced solely to maintain production in face of the strike and not because of inventory considerations. Moreover, as late as February 5, Respondent still advanced the "investigation" as the reason for not recalling the strikers No mention was then made of inventory or production justifications. Nor does it avail Respondent to contend that production levels were rendered suffi- cient under the revised manning schedule adopted on January 31 to meet inventory demands, thus rendering unnecessary the service of the strikers. This defense is deficient because the legal obligation to reinstate the strikers (save Gerald Williams, discussed separately hereinafter) had accrued before Respondent acquired experience under its revised production scheduled; and this plea cannot relate back to excuse an earlier dereliction. Moreover, while it is always open to Respondent to show in the compliance stage of a proceeding, circumstances in mitigation of backpay, it is pertinent here to observe there is nothing in this record to suggest that, had Respondent in fulfillment of its legal obligation reinstated the strikers effective February 1, their subsequent layoff for inventory reasons would have been imminent. Past practice in giving employment to the employee contingent affected by the shutdown of the 21/4-inch roll line suggests otherwise. Further in having just 3 days earlier commenced a two-shift operation of the 2-inch can line it is most unlikely that Respondent would suddenly, in the absence of the strike, have curtailed operations. Moreover even if some reduction in force had later taken place it is purely conjectural to assume that the fortuities of the situation would have been such as to include each or any of the strikers. I am persuaded and find that the emergency revision in work assign- ments and scheduling was retained in effect after 3.45 p.m on January 31 as a retribution against the striking employees and that the economic defense advanced by Respondent is a mere pretext. I conclude and find moreover that Respondent visited this retribution upon the employees because they had engaged in protected concerted activities. I further find that Respondent's failure to reinstate the employees herein had the natural consequence of discouraging union membership and activity and violated Section 8(a) (3) and (1) of the Act.52 I shall accordingly recommend Respondent remedy its unfair labor practices in the manner prescribed below, including the payment of backpay for the entire period from February 1 to and including February 18 to each employee named in the complaint, except Gerald Williams. As to Gerald Williams Respondent's obligation to reinstate him did not arise until February 7. I conclude and find that in refusing to cross the picket line pursuant to his conversation with Scott, and by thereafter voluntarily withholding his services for a brief period after the commencement of the afternoon shift at 3.30 pm. on January 31, to which he was assigned, he joined the strike, and, consequently, assumed the status of an economic striker.53 Williams made no effective unconditional request for reinstatement until on or about February 7 when Respondent in due course of the mails received his letter. I am unable to conclude that the committee which met with Manager Smith at the termination of the strike possessed the authority to seek Williams' reinstatement for he was not present when the decision to end the strike was made and he did not specifically or tacitly authorize the committee to act for him. Neither did he later in any way ratify the committee's blanket application 54 Nor does the futility doctrine excuse Williams from making earlier application. True, the afternoon shift had been abolished as the result of Respondent's discrimina- tion, but Smith had permitted afternoon shift employees who had remained out of the plant after their shift had commenced on the day of the strike to enter the plant and 62 The Radio Officers' Union of the Commercial Telearapheis Union, AFL (Bull Steam- ship Company) v V L R B , 347 US 17, 45 Whether the discharges be regarded as a violation of Section 8(a) (1) or 8(a) (3), or both, it is found necessary to effectuate the policies of the Act to order backpay for the employees named in the complaint as provided in the section entitled "The Remedy " G4 Clearly, Williams' status as a striker ended, if not contemporaneously with the abandon- ment of the strike by the other strikers, at least when he indieated his intention no longer to withhold his services by reporting to work at the plant ready to assume his duties on the afternoon of February 1 64 See David G Leach and Doyle H Wallace d/b/a Brookville Clove Company, 114 NLRB 213, 214, footnote 9 Williams was not mentioned by name during the reinstatement dis- cussions with Smith Staff Representative Lee's inquiry of Manager Smith on February 1 if he were going to reinstate the "employees who walked out" did not constitute an un- conditional request to reinstate the strikers Cf. California Cotton Cooperative Associa- tion, Ltd , also known as Calcot Cotton Compress , 110 NLRB 1494 , 1501 , and cases cited at footnote 11 therein. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assume their duties. Further, Respondent had held a place on the revised day shift of February 1 for Williams. I conclude on the facts of this case that Williams was not warranted in assuming that his individual application for reinstatement would have been futile. In failing to act earlier he did so at his own risk When on February 7 Respondent received Williams' letter, I am convinced that by the "reinstatement" terminology it incorporated and its similarity to the earlier written reinstatement requests of the strikers , Respondent, in the circumstances that then prevailed , was placed on notice that Williams was seeking reinstatement as a former striker . Thus alerted , Respondent did not contact Williams nor otherwise, so far as the record reveals, seek to inform itself of his status. Respondent was re- quired to do more than ignore the application , and its failure thereafter until February 19 to reinstate Williams constituted a rejection of it 55 Respondent was legally obliged after receipt of Williams ' letter to reinstate him and its failure to do so cannot be excused on economic grounds. While the job intended for him on the day shift on February 1 had been filled, the revised produc- tion schedule eliminating the afternoon shift was continued in effect after the day of the strike solely in support of Respondent's discriminatory design. Respondent cannot excuse its failure to reinstate Williams by invoking as a defense , a manning scheme perpetuated in effect for discriminatory reasons . Accordingly, I find that Respondent refused to reinstate Gerald Williams after February 7 because he joined the January 31 strike , which I have found to have been a protected concerted ac- tivity. Accordingly I find that Respondent thereby violated Section 8 ( a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with its operations described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent unlawfully refused to reinstate the em- ployees listed in Appendix B on February 1, 1962, and continued to refuse to do so until February 19, 1962. It has further been found that during the period February 8 to 18, 1962 , inclusive , Respondent refused to reinstate employee Gerald Williams It will therefore be recommended that the Respondent make whole Gerald Williams and each employee listed in Appendix B for any loss of earnings they may have suffered during the periods, as found, that they were denied reinstatement by payment to each of them of a sum of money he would have earned as wages absent the discrimination , less his net earnings during such period , in conformity with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company , 8 NLRB 440. It will also be recommended that the Respondent, upon request , make available to the Board and its agents, all payroll and other records pertinent to the analysis of the amounts of backpay due. Since the violations of the Act which the Respondent has committed are related to other unfair labor practices proscribed by the Act , and the danger of their com- mission in the future is reasonably to be anticipated from its past conduct, the pre- ventive purposes of the Act may be thwarted unless the recommendations are co- extensive with the threat. To effectuate the policies of the Act, therefore , it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. By discriminating in regard to the tenure of employment of Gerald Williams and the other employees listed in Appendix B thereby discouraging membership in and activities on behalf of a labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. es See California Cotton Cooperative Association . Ltd, also known as Cabot Cotton Compress , supra, at 1501 R.C. CAN COMPANY 601 2. By interfering with, restraining , and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 ( 6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the Trial Examiner recommends that the Respondent R.C. Can Company, its officers, agents, successors, and assigns, shall: I Cease and desist from: (a) Discouraging membership in the activities on behalf of United Steelworkers of America, AFL-CIO, or any labor organization, by refusing to reinstate or in any other manner discriminating in regard to hire, tenure , or any term or condition of tmp'oyment of its employees. (b) In any other manner interfering with, restraining , or coercing employees in the exercise of the right to self-organization, to form labor organizations, to loin or assist any labor organization, to bargain through representatives of their own choos- ing, and to engage in any other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities 2 Take the following affirmative action which the Trial Examiner finds will effec- tuate the policies of the Act: (a) Make whole Gerald Williams and the employees listed in the attached Ap- pendix B, for any loss of earnings they may have suffered by reason of the discrim- ination against them, in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents , for ex- amination and copying , all payroll records, social security payment records. time- cards, personnel records and reports, and all other records necessary for the de- termination of the amounts of backpay due and the right of reinstatement under these Recommendations. (c) Post at its plant in Arlington, Texas, copies of the attached notice marked "Appendix C." 56 Copies of said notice , to be furnished by the Regional Director for the Sixteenth Region , shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps it has taken to comply herewith 57 It is also recommended that unless within the prescribed period the Respondent notifies the said Regional Director that it will comply with the foregoing Recom- mendations , the National Labor Relations Board issue an order requiring compliance. "If these Recommendations are adopted by the Board , the words "A Decision and Order" shall be substituted for the words "A Recommendation of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 67 If these Recommendations are adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for the Sixteenth Region , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX A TO- All employees-R C. Can Co. FROM: United Steelworkers of America You are urged to attend a meeting at the U .A.W. Hall in Arlington , at 7.00 P.M., Tuesday, January 30th. We have been in negotiations with the company since June 13, 1961, trying to reach an agreement on a contract covering hours of work , working conditions , wages, and etc The company will not meet with us unless they have their well-paid attorney with them and the result is meetings have been held only at the convenience of the attorney. A worker's life is valuable Everytime the clock ticks , there goes a second off his life to make a profit for someone He is entitled to all he can get for those precious hours . As the Bible says . "The laborer is worthy of his hire " 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To protect himself, the worker tries to get as much as possible for his life. By himself this is difficult with employers organized. He can be broken like a stick. But breaking a bundle of sticks is not so easy. Men are forced by circumstances to organize. Unionism has brought about better working conditions, more leisure for the worker to enjoy his life, reasonable pay, more job security, vacations, pen- sions and many other benefits. It is an ignorant man who values his life cheaply, sells it cheaply and works long weeks to make his employer rich to the extent that he keeps himself poor. Well-paid organized labor is good for business in any town or city. The more the worker earns, the more he has to spend on his needs. The more he has to spend, the better for the merchant, the farmer and everyone else. Come to the meeting Tuesday and let us reason together. 1/25/62 UNITED STEELWORKERS OF AMERICA APPENDIX B Martin J. Brower Andrew Hendley Marcellus H. Threlkeld Steve J. Giva Alva T. Lynch Robert B. Turner Milford Scott APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to a recommendation of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in or activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization, by refusing to reinstate or in any other manner discriminating against employees in regard to their hire or tenure of employment or zany term or condition of employment. WE WILL NOT in any other manner .interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual air or protection, 'or to refrain from any or all such activities. WE WILL make whole the following named individuals for any loss of pay they may have suffered by reason of the discrimination against them: Martin J. Brewer Alva J. Lynch Robert B. Turner Steve J. Giva Milford Scott Gerald Williams Andrew Hendley Marcellus H. Threlkeld R.C. CAN COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone No. Edison 5-5341, if they have any question concerning this notice or compliance with its provisions. International Woodworkers of America, AFL-CIO (Region 5) and Pioneer Lumber Corporation. Case No. 6-CB-922. Janu- ary 1/f, 1963 DECISION AND ORDER On August 9, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that 140 NLRB No. 61.