Louisville Chair Company, Inc.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, are labor organizations within the meaning of the Act. 2. Leonard R. Lanham and Larry E. Lanham are , and have been at all times material herein, partners doing business under the trade name and style of Lanham Brothers, General Contractors, and constitute an employer engaged in commerce within the meaning of the Act. 3. The evidence does not establish that the Respondents have violated Section 8(b)(1)(A) and (2 ) of the Act. RECOMMENDED ORDER It is recommended that the complaint in this matter be dismissed in its entirety. Louisville Chair Company, Inc. and Local 236, United Furniture Workers of America, AFL-CIO. Cases 9-CA-3627 and 3692. October 25, 1966 DECISION AND ORDER On April 8, 1966, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, Respond- ent filed exceptions to the Trial Examiner's Decision and a support- ing brief. Pursuant to Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' I The Trial Examiner found that Hale ' s discharge constituted a violation of Section 8(a) (1) of the Act. In so concluding , he found that the remark made by Hale to bars. Napier which precipitated Hale 's discharge "was itself inextricable from his union ac- tivities " According to the credited evidence , Hale's "union activity" consisted of his wearing a union button for 1 hour before the election and the objectionable remark to a female employee, for which he was discharged . On this state of the record in this proceed- ing, we do not believe that the General Counsel has sustained his burden of proving that Hale was discharged for union activity . Accordingly, we shall dismiss the complaint in this respect. 161 NLRB No. 31. LOUISVILLE CHAIR COMPANY, INC. 359 The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Delete paragraph 1(b) and reletter the present paragraphs consecutively. [2. Add the following to the paragraph relettered 1(d) and to the last paragraph of the Appendix : ". . . , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959." [3. Substitute the following as paragraph 2(b) : ["(b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employ- ees who went on strike on August 17, 1965, or thereafter, and, upon application, offer to Joseph E. Sweet immediate employment at the same position as, or a position substantially equivalent to, that at which he would have been employed had he not been discriminated against, without prejudice to any seniority or other rights and priv- ileges he might have acquired, dismissing if necessary any persons hired on or after August 17, 1965." [4. Substitute the following for the third and fourth indented paragraphs of the Appendix attached to the Trial Examiner's Decision : [WE WILL, upon application, offer all employees who went on strike on August 17, 1965, or thereafter, immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and priv- ileges, and WE WILL offer to Joseph E. Sweet immediate employ- ment at the same position as, or a position substantially equiva- lent to, that at which he would have been employed had he not been discriminated against, without prejudice to any seniority or other rights and privileges he might have acquired, dismiss- ing if necessary any persons hired on or after August 17, 1965. [WE WILL make the above-mentioned employees whole for any loss of pay they may suffer as a result of our refusal to reinstate or employ them, upon application, and WE WILL make Joseph E. Sweet whole additionally for any loss of pay he may have suf- fered as a result of our refusal to employ him from the date of such refusal until August 25, 1965, when he rejected an oiler of employment because of the strike.] [The Board dismissed the complaint insofar as it alleges violations not found herein.] 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On the basis of charges filed June 29 , July 26, and September 13, 1965, by Local 236, United Furniture Workers of America, AFL-CIO, referred to herein as the Union, the General Counsel issued a consolidated complaint against Respond- ent, Louisville Chair Company , Inc The complaint alleges that Respondent violated Section 8 (a)(1), (3), and (5) of the Act. Respondent 's answer denies the com- mission of any unfair labor practices. This proceeding, with all parties represented, was heard before Trial Examiner David S. Davidson in Louisville, Kentucky , on November 16 through 19, and December 14 and 15, 1965 . At the close of the hearing the parties waived oral argument and were given leave to file briefs. Briefs were received from the Union and the Respondent. Upon the entire record in this case , I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Kentucky corporation with its principal office and plant located in Louisville, Kentucky, where it is engaged in the manufacture and sale of dinette sets. It also operates a fleet of over-the-road trucks for delivery of its products. During the 12 months prior to issuance of the complaint, a representative period, Respondent had a direct outflow of its products in interstate commerce valued in excess of $50,000, which it sold and shipped from its plant in Louisville, Kentucky, directly to points outside the State of Kentucky. At all times material herein, Respondent is, and has been, an employer engaged in commerce and operations affecting commerce within the meaning of the Act, and assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED Local 236, United Furniture Workers of America , AFL-CIO, is an organization in which employees participate and which exists for the purpose in whole or in part of dealing with employers concerning grievances , labor disputes, wages, rates of pay, hours of employment, and conditions of work. I find that it is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and the issues During the winter and spring of 1965, the Union engaged in an organizational campaign among Respondent's approximately 300 production and maintenance employees.' Upon a petition filed by the Union in Case 9-RC-6223, an election was conducted on May 27, 1965, which resulted in a vote of a majority of the employees in the unit in favor of the Union. As set forth in greater detail below, Respondent filed objections to the election, and thereafter the Regional Director for Region 9 issued a Supplemental Decision overruling the objections and certifying the Union as representative of the employees on July 16, 1965. Respondent filed with the Board a request for review of the Regional Director's decision, which was denied The issues raised by the complaint are: (1) Whether between January and July 1965, Respondent violated Section 8(a)(1) of the Act by interrogation of employees concerning union activities, threats of reprisal, and solicitation of an employee to create trouble with prounion employees so as to make possible their discharges. (2) Whether on or about May 27, 1965, the day of the election, Respondent discharged Wayne G. Hale because of his activities on behalf of and sympathy for the Union. 'A prior effort by the Union to organize Respondent's production and maintenance em- ployees in 1962 and 1963 ultimately resulted In a vote against representation, after an initial election In which the employees voted for representation was set aside. A complaint against Respondent alleging certain labor practices in connection with the earlier orga- nizational campaign was dismissed , and the Union 's objections to the second election held in 1963 were overruled. Louisville Chair Company, Inc., 146 NLRB 1380. LOUISVILLE CHAIR COMPANY, INC. 361 (3) Whether on or about July 12, 1965, Respondent refused to employ Joseph E Sweet because of past union affiliation and suspected sympathy for the Union (4) Whether on or about July 16, 1965, and thereafter, Respondent refused to bargain with the Union in violation of Section 8(a)(5) of the Act (5) Whether a strike of Respondent's production and maintenance employees which commenced on August 17 is an unfair labor practice strike. B The alleged violations of Section 8(a) (1) 1 Supcuntendent Wedding a. Joseph H. Wedding is the general superintendent of Respondent's manufac- turing and trucking operations Through foremen who report directly to him, Wedding supervises Respondent's day-to-day operations. Wedding also participates in collective-bargaining negotiations with representatives of Respondent's employees and other matters concerning the representation of employees. Sometime in January 1965, Wedding received a copy of a letter from the Union to the Regional Office for Region 9 of the Board with a list of signatures of 25 employees attached. The letter stated that the named employees had joined an organizing committee for Respondent's employees and indicated that its purpose was to leave no doubt of the participation of the named employees in union activi- ties. Among the signatures on the list was that of Kenneth Y. Skaggs. Within a few days atter receiving this letter, Wedding called Skaggs into his office In the course of a conversation with Skaggs, Wedding told hun he was amazed that Skaggs was engaged in union activities in view of the length of time he had been employed by Respondent. Wedding asked Skaggs what was wrong in the welding department where Skaggs was employed. Wedding commented that he had the feeling that the department foreman was not treating the employees right and asked Skaggs if he liked the foreman. Skaggs ieplied that he liked the foreman well enough but that some of the others did not. Wedding asked the reasons, and Skaggs replied that the employees thought they, rather than the foreman, should turn in their own count on piecework. Wedding explained that the count had to be checked by the foreman Wedding then called Skaggs' attention to the letter and list of names he had received from the Union. Wedding told Skaggs that he could pass out all the union authorization cards lie wanted to and get then signed before the start of work and at break and lunch time, but that if Wedding saw him sign up any employees on company time, Wedding would fire him, adding that he would not pay Skaggs to sign up union cards on company time. Wedding told Skaggs to con- vey this message to the others whose names were on the list. Skaggs said he would comply and the conversation ended. Wedding testified, without contradiction. that before talking to Skaggs he had reports that Skaggs was trying to get cards signed on company time Although Skaggs denied that he had done so, Skaggs testified that Wedding so charged in his conversation with him 2 The complaint alleges that Wedding's remarks to Skaggs constitute unlawful interrogation about Skaggs' union activities and those of other employees. Inter- rogation violates the Act "if the questioning takes place under circumstances which impart to it a tendency to interfere with the free exercise of rights under the Act." 3 No single set of factors is determinative, but more is required than a mere showing that an employer repiesentative has questioned an employee concerning matters relating to union activity. It appears that Wedding's conversation with Skaggs was prompted by the report that Skaggs was soliciting signatures on union authorization cards during working hours, and that at least one of its purposes was to inform Skaggs, and through him the other employees whose names weie on the list sent to Wedding, that they were not permitted to solicit signatures on company time. It is tine that Wedding in this interview expressed surpiise at Skaggs' participation 2 There is only one material conflict between the testimony of Wedding and Skaggs with respect to this incident. According to Skaggs, Wedding threatened that employees would be discharged for having caids signed on company time or property. Wedding testified that his warning applied only to company time and that lie specifically affirmed the right of employees to solicit signatures on their own time In the light of Skaggs' failure to mention in statements previously given to the General Counsel that he was warned not to obtain signatures of company property, his unconvincing explanation therefor, and Skaggs' admission that following this conversation he openly continued to solicit signatures on his own time on company property, I do not credit Skaggs where his testimony is in conflict with that of Wedding 3 Murray Ohio Manufacturing Company, 155 NLRB 239. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the organizing campaign and briefly explored possible sources of dissatisfaction in Skaggs' department. However, Skaggs' identity as a union adherent had been brought to Wedding's attention by the Union, and Wedding made no effort in this conversation to dissuade Skaggs from supporting the Union. Wedding did not threaten Skaggs with any adverse consequences for continued activity, other than his permissible warning against solicitation on company time which was accom- panied by a statement that Skaggs was free to continue solicitation on his own time. Except for the incident involving Foreman Pry discussed below, which does not appear to have been part of any systematic plan of interrogation, there is no other evidence of interrogation involving any of Respondent's 300 employees during the 5 months which followed between Wedding's conversation with Skaggs and the representation election . I am not persuaded that the circumstances surrounding Wedding's questions to Skaggs concerning possible sources of dissatisfaction in the welding department impacted to this conversation a tendency to interfere With protected rights.4 I conclude therefore that the allegation of the complaint based on this conversation should be dismissed. b. On May 24, 3 days before the representation election, James Keeling, a fore- man, reported to Superintendent Wedding that he had observed Saul Spencer, an employee in his department, showing some union buttons to other employees during working hours. Keeling asked what he should do about it. Wedding replied that he would take care of the matter. The following day Wedding went to Spencer's department and stood for about 10 minutes on a landing 10 feet behind Spencer's work station where he could observe Spencer, apparently without being seen. While there, he observed Spencer showing a union button, which Spencer was wearing, to Green, a deaf-mute employee who worked beside, him.5 Wedding heard Spencer say something to Green which sounded like, "You should be wearing one of these." Wedding estimated that the incident did not take more than 15 or 20 seconds. The incident occurred during working time. Green continued to work. Spencer, whose job was to turn sewn chair back covers inside out and to sort them, paused in his work while showing the button to Green and talking to him.6 Wedding approached Spencer. Wedding told Spencer if he would spend more time on his work and less on union activity, they would get along a lot better and warned Spencer that if he were caught passing out union buttons or literature on company time, Wedding would discharge him.7 Wedding then went to Keeling and in Spencer's presence told Keeling to let him know if Spencer engaged in any union activity whatsoever-on company times In connection with this incident. Wedding testified on cross-examination as follows: Q. Was it unusual for an employee regardless of what he does now to take a five second interval between turning backs occasionally? A. It would be very unusual for an employee to take five seconds out to engage in Union activity. Q. That's not my question, Mr. Wedding. A. If an employee took five seconds out just to stop for five seconds I wouldn't say anything to him, but if he's engaged in Union activity he's going to get it. Q. What if he took ten seconds out just to stop? A. I wouldn't say anything about that. Q. How about twenty, how about a minute? A. No. If he's engaged in Union activity he would. Q. But if he was engaging in Union activity you would toss him right out of the joint? A. I might, it all depends. I have warned them, I warn them usually my procedure would be to warn them as in the case with Saul Spencer. 4 See Bernel Foam Products Co., Inc., 146 NLRB 1277, 1278, 1294. 6 According to Wedding, Green reads lips fairly well. 6 The above findings are based on the testimony of Wedding. Spencer testified that the pin on the button became unfastened and that he paused only to refasten it without say- ing anything to Green. For reasons set forth below, I have credited Wedding with respect to this incident. 7 Spencer conceded that Wedding warned him not to pass out buttons on company time. 8 Spencer testified that Wedding told Keeling that he wanted Spencer's "ass out of here for the least little thing" and that before talking to Keeling, Wedding made a similar remark directly to Spencer. Keeling testified that Wedding told Keeling to notify Wedding if Keeling caught Spencer showing union buttons any time during working hours. LOUISVILLE CHAIR COMPANY, INC. 363 Wedding testified further that Spencer could talk all day on his job and do it efficiently and that Wedding would have no objection to an employee talking all day if he did his woik, but that he would not permit talking about the Union during working hours and so instructed his foremen Although Wedding in his initial responses to questions about the distinction he drew between union activity on the job and other work interruptions displayed a tendency to spar with counsel, his answers quoted above were basically candid. Spencer s demeanor on the other hand did not inspire confidence in his testimony, and his limited ability to express himself, like that of other of the employee wit- nesses, though not a matter for which Spencer is to be censured, nonetheless raises a question as to the accuracy of statements attributed by Spencer to Wedding. I have concluded that Wedding is to be credited as to this incident. Based on this incident, the complaint alleges that Wedding threatened Spencer with discharge for union activity in violation of Section 8(a)(1) of the Act. In Walton Manufactuniig Company, 126 NLRB 697, 698, enfd. 289 F.2d 177 (C.A. 5), the Board attached a presumption of validity to the enforcement of a rule barring union activity during working time "m the absence of evidence that the rule was unfairly applied." As the Board's subsequent decision in Wm. H. Block Company makes clear,9 the test of unfairness is whether the rule is enforced to prohibit union related activities during working time comparable to other work disrupting activities which are permitted during working time. In Block, the Board found that a no-solicitation rule was unfairly enforced when employees, with knowledge and participation of supervisory personnel, were permitted during working time to solicit for gambling pools, to sell tickets to various events, and to collect money for gifts. Here, the only evidence with respect to the rule communicated to employ- ees is in Wedding's statement to Skaggs in connection with the incident set forth in paragraph a above. The complaint does not allege that Respondent 's no-solicita- tion rule was itself invalid. However, as Wedding's testimony quoted above makes clear, Respondent tolerated short pauses by employees in the course of their work,'° unless for the purpose of engaging in union activity. Likewise, Wedding considered employees free generally to talk while they worked, as long as they worked effi- ciently, but would not permit talking about the Union during working hours and so informed his foiemen . Thus the vice in Spencer's conduct which prompted Wedding to warn him was not that he briefly interrupted his work or talked while on the job, but that the interruption and his talking were utilized for union activity. Wedding's warning to Spencer in the context of the conduct of Spencer which prompted it, and particularly in the context of his instruction to Keeling to report to Wedding if Spencer engaged in any union activity whatsoever on company time, threatened Spencer with discharge for repetition of the incident Wedding had just observed or any union activity on company time. As Wedding's threat unfairly enforced Respondent's no-solicitation rule, it constituted unlawful interference with employee rights and violated Section 8(a)(1) of the Act. c. According to employee Spencer, on July 21, the morning after a well- advertised union meeting attended by a large number of employees, Wedding came through the department "hollering that these people got their union suits" last night and that he had news that they would be made out of the best satin." Spencer testified that Wedding then went to Foreman Keeling, asked Keeling with reference to Spencer, "that boy there is a Union man, isn't he ?", Keeling replied that he believed so, and Wedding then approached Spencer and asked "did you get your union suit last night?" According to Spencer, he replied that he did not and Wedding asked why not. Spencer testified that when Spencer replied that he didn't know, Wedding said, "[Wlell I am giving you one of the best sets made and I said yes sir. He said does the Union know how to make dinette sets and I replied I do not know. He said well they sure and hell and damn better know how to make them." Wedding denied that he talked to Spencer at all about union suits or union activity on or about July 21, but testified that around that time he stopped to talk to a group of sewing machine operators and asked them if they had gotten their 0 150 NLRB 341. 10 There is no evidence that Spencer had paused excessively in performance of his work in relation to standards generally applicable to other employees. 11 The transcript at p. 108, 1. 6, in connection with this remark should be corrected to replace the word "Saturday" with "of satin." Spencer testified on cross-examination that this remark was directed at one of the girls in the department , that some of them laughed when he said it, and that Wedding sometimes joked with others in the department. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union suits yet, adding that he understood they were making them with two buttons on the flap instead of one like they used to. According to Wedding everyone laughed, and he left the department without talking to Keeling or Spencer. Wedding also testified that on a different occasion prior to the election he had asked Stone, an elevator operator, in the presence of several other employees, but not Spencer, if Stone thought the union organizers knew anything about making dinette sets. When Stone said he did not know, Wedding added that they had better start learning something about it.12 With respect to this incident, I was again favorably impressed by the candor of Wedding and credit his testimony. For reasons similar to those set forth above in connection with the May 25 incident, I do not credit Spencer. Accordingly, I con- clude that the allegation of the complaint based on this incident, that Wedding unlawfully interrogated Spencer on or about July 21, 1965, should be dismissed. 2. Floorlady Whitham a. Floorlady Nora Catheiine Whitham supervises 75 to 80 employees in the second floor upholstering department of Respondent's plant. On May 25, 1965, 2 days before the election, employee Roy Lee Gray went to Superintendent Wedding's office to complain that Joseph Paul Wright, a fellow employee had used vulgar language in front of Gray's wife, who was also an employee and at the time worked beside Gray. Wedding told Whitham, who was present in Wedding's office, that he wanted Wright's use of vulgar language stopped. Later in the day, as Gray was returning from lunch, he passed Whitham's desk. She stopped Gray and told him she knew that Joseph Paul Wright and his brother, Thomas Wright, used bad language in front of his wife and that she had warned them about it. She also told Gray that it was bad for man and wife to work together and that something would have to be done about that. According to Gray, Whitham continued to talk to him, bringing up the matter of a handbill that the Union had put out which reproduced the check stubs of some employees of another employer. Gray testified that after stating that the checks were those of the highest paid employees at the plant mentioned, Whitham told him that if the Union were voted in at Respondent's plant and took the employees out on strike, they could be replaced "and also if the Union is voted in our profit-sharing plan will probably be cut out." On cross-examination Gray testified that Whitham said "If the Union is voted in it will probably cut our profit-sharing plan out." Gray testified that he did not take her statement to mean that the Union would probably cut it out and further restated what she had said as "If the Union was voted in our profit-sharing plan could be cut out." Gray restated the remark a final time in much the same words as his initial testimony. Whitham testified that she recalled speaking to Gray about Wright's use of vulgar language in front of Gray's wife, but denied discussing the union handbill with Gray. Although Whitham's testimony was not persuasive,13 it is impossible to conclude from Gray's testimony which of his differing versions of the statement concerning the profit-sharing plan is correct, or indeed whether any one of these versions should be found to have occurred rather than a mere statement of the effects a strike would have on profits and the profit-sharing plan in view of the context in which Gray testified that the remark was made. In these circumstances, the evidence is insufficient to establish that Whitham threatened elimination of the profit-sharing plan if the employees voted for the Union, and I conclude that the allegations of the complaint based on this incident should be dismissed. b. Employee Paul Tobergta testified that about 2 weeks before the election, while at work, Whitham called him over to her desk and asked him "just how Harold and David Marion and two other employees had ever gone to a union meeting and I told her I don't know." Tobergta further testified that the question which Whitham asked was "if Harold and David Marion and two other employees had ever gone Keeling testified that he did not hear Wedding make any remarks about union suits in his department and denied the occurrence of the portion of the incident which Spencer described as involving Keeling. is Whitham's testimony was at times guarded and defensive, her memory in many re- spects appeared uncertain, and at times it appeared that Whitham was distracted in her efforts to recall events of the critical period, perhaps understandably because of the re- cent loss of her husband. LOUISVILLE CHAIR COMPANY, INC. 365 to the union meeting." He testified that Whitham did not name the two other employees, although Tobergta indicated that he knew who they were. Tobergta has a hearing defect and had difficulty hearing the questions asked him at the hearing. It is difficult to make sense of his testimony that he was asked about the Marions and two unnamed employees but knew who the unnamed employees were without their names having been mentioned. Tobeigta's affidavit given to the General Counsel during the investigation of the case states, "She asked me if Harold and David Marion, two other employees, had ever gone to any union meeting." 14 However, Tobergta in his testimony at the hearing did not state at any time that the question concerned only the Marions, who were two other employees, as the state- ment suggests. Efforts to obtain clarification of Tobergta's testimony were unpro- ductive. In view of the nature of his testimony, the conflict between his testimony and his written statement, and bearing in mind that his hearing impairment may have effected his understanding of what Whitham said to him as well as his difficulty in grasping questions put to him at the hearing, I cannot accept his testi- mony as establishing that Whitham questioned him about the attendance at union meetings of other employees.15 Accordingly, I conclude that the allegation of the complaint based on this incident should be dismissed. c. Employee Thomas Wright testified that about a week before the election, Whitham called him to her desk and asked if he knew who was for the Union. According to Wright, when he replied that he did not know, Whitham told him to go around and find out "Who was for the Union and then to start a fight with them and get the Union sons-of-bitches out of there before the election." According to Wright, at the very end of the conversation, during its last few seconds, Super- intendent Wedding walked up and "said it would be a good idea .... What we was talking about." 15 Wright testified also that 2 days before the election, Whitham told him that employee Roy Lee Gray had called his brother, Joseph Paul Wright, "a son of a bitch and so she was telling me about it and she said if she was me to go back and poke him in the head for calling my brother a son of a bitch." According to Wright, she added, "If it was her brother [and] somebody called him a son of a bitch she would whip him," and Wright replied, "it wasn't my fight and I didn't want any trouble with anyone." A few days before the election Wright wore a paper badge identifying him as against the Union. About a week after the election Wright attended a union meet- ing. According to Wright, the next morning, in the presence of his helper,17 Whitham told Wright, "I knew you was at a Union meeting last night and you ain't no good, you or any of the rest of you Union son of a bitches and if I catch you buying saltines or candy during work hours , you are automatically fired." 18 On June 30, approximately a month later, Wright was discharged for smoking in the restroom. The amended charge in Case 9-CA-3627 alleged that Wright was discharged because of his union activities. On August 2, 1965, the Union requested withdrawal of the portion of the charge based on Wright's discharge, and on August 9 the Regional Director approved the withdrawal. Apart from the above, Wright testified that he knew the Union was handing out handbills for some time before the election but he knew nothing about the Union getting cards signed until a week before the election. Wright testified that before that there weren't any cards being passed around, there wasn't anybody talking about the Union, and he didn't know anything about it. Despite Wright's inability to read, he testified that his wife read to him letters passed out by the Company which mentioned the union activities and efforts to get cards signed. ' In this connection the transcript at p. 133, 1. 22 was corrected by stipulation at p. 816. 15 Whithain denied questioning Tobergta about the attendance at union meetings of Harold and David Marion or any other employees. 19 According to Wright this conversation lasted about 4 minutes, during it Whitham named no particular people or department where she wanted him to start trouble, and he understood that he was to pick a fight with anyone who was for the Union. 14 Wright's helper was not called as a witness at the hearing 1s According to Wright's testimony there was no rule against employees buying soft drinks during working hours except when the union drives were going on. In his statement given to the General Counsel, Wright stated that there was a standing rule to the effect and the Company got strict about it when union drives=were in progress 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whitham denied that either of the preelection incidents occurred. According to Whitham during the month before the election Wright did not talk to anyone other than to say good morning and ask for work. As she put it, after the union activities began, he took kind of a "spell" and had done so before. Wedding also denied the participation in the first incident which Wright attributed to him. As for the postelection incident, Whitham testified that she did not speak sepa- rately to Wright about buying soft dunks during working hours, but that she called all employees in hei department on one occasion approximately 3 months before the election and told them that the breaktimes were provided so that employees could get something to eat or drink. She testified she then told them that during working time employees were not supposed to go to the soft drink machines and that there were signs posted in the plant to that effect. I do not credit Wright as to any of these incidents. Wright was admittedly a disgruntled ex-employee. His denials of knowledge of union activity in the plant were not convincing While the incidents he described are not so implausible that one can say with assurance that they could not have happened under any circum- stances, the suggestion that a supervisor of some years experience on two occasions urged a tall, strong employee to start fights at random in the plant is certainly such as to engender skepticism. The absence of other witnesses to these incidents could understandably make direct corroboration impossible, but the absence of any surrounding circumstances to supply indirect corroboration to Wright's testimony is a more serious matter. Despite Whitham's asserted statement of desire to get rid of union adherents before the election, the record before me shows no evidence that any union adherents were removed before the election by the means allegedly suggested to Wright or any other. While Wright's illiteracy does not detract from his credibility, his limited ability to express himself, which the cold record does not fully reflect, raises considerable doubt as to his accuracy as a reporter of what others said to him. Wright was unable to give a convincing description of the circumstances surrounding the first incident, supplying at most 30 seconds worth of conversation to describe a conversation which he estimated as lasting several minutes. If his version were accepted, it would be difficult to understand how Wedding had an opportunity to hear what Whitham proposed let alone to endorse it. With respect to the third incident, Wright's credibility depends heavily on his testimony, not entirely clear, that the rule against drinking soft drinks during working time only existed during union drives. His testimony is in conflict with his statement and Skaggs as well as Wedding and Whitham. Accordingly, I conclude that Wright is not to be credited, and none of the allegations of the complaint based on Whitham's conduct involving Wright have been sustained. 3. Foreman Pry A single incident is attributed to Foreman Pry, based on testimony of employees Joseph Vittitow and Wayne G. Hale.19 Until Vittitow left Respondent's employ in March 1965, he and Hale worked together in the receiving department. They transported materials from the receiving dock throughout the plant. Their duties frequently brought them into Pry's department, where they frequently spoke to Pry and laughed and joked with them. On one occasion, during February or March,20 after Pry had been talking with Vittitow and Hale for several minutes, Pry asked Vittitow how the union meeting had gone the night before.21 Vittitow replied that it had gone all right but that he didn't see anything of Pry or his spies there. Pry retorted that "his spies were smart for staying out of the union and he said anybody involved in the union 29 Pry was not called as a witness. 2OVittitow placed the conversation during the last week in February. Hale in a state- ment given to the Board in July placed the conversation in March or April. In his testi- mony he first placed the incident in February, and after confronted with his statement testified that he was not sure of the month. 2'Vittitow testified initially that Pry walked up and asked how the union meeting went. On cross-examination he testified that they had been talking for several minutes when Pry asked about the union meeting. LOUISVILLE CHAIR COMPANY, INC. 367 would definitely be fired." 22 According to Vittitow, he was joking when he mentioned Pry's spies, but Pry was serious in his reply. Vittitow had told Pry he was for the Union, but Hale had not at that time openly indicated support for the Union. The complaint alleges that Pry interrogated and threatened Vittitow in the presence of Hale in violation of Section 8(a)( I) of the Act. It appears that the conversation between Pry and Vittitow, at least at the outset, was carried on in a bantering tone and was similar to other conversations which regularly occurred between them. Insofar as the record shows, the matter of the Union was first raised by Pry, when he asked Vittitow, a known union supporter, how the union meeting had gone the night before. Vittitow's reply was flippant and sarcastic. Had the conversation terminated at this point, I would be inclined to agree with Respondent that Pry's isolated inquiry might be dismissed as harmless. However, whether provoked by the implied accusation in Vittitow's reply, moved by the desire to best Vittitow in their verbal exchange, or otherwise motivated, Pry did not let the matter rest, but retorted with a threat that those who were involved with the Union would be fired. There is no evidence that Pry tempered his remark either by additional comment or manner of delivery to make clear that the threat was not seriously intended, and the credible evidence establishes that Vittitow viewed Pry's reply as serious. The test is not whether Pry's statements had coercive intent or effect but whether his conduct may be reasonably said to tend to inter- fere with the free exercise of employee rights under the Act. Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 99 (C.A. 7). A threat that employees will be discharged for involvement in union activities is the most obvious form of interference with the exercise of protected rights. Accordingly, I conclude that Pry's threat to Vittitow, in the presence of Hale, violated Section 8 (a)(1) of the Act. C. The alleged violations of Section 8(a) (3) 1. The discharge of Hale Mrs. Jeanette Napier, also known to Respondent's employees as "Tootsie," was employed as a checker in Respondent's upholstery department under the super- vision of Whitham. On the day before the election, Napier and a number of other girls in her department wore homemade circular cardboard insignia identify- ing them as opposed to the Union. On the day of the election, May 27, Napier and a number of other girls in the department wore white headbands on which hand inscribed legends appeared. Most of the hats had pictures of donkeys on them. The hat worn by Napier at the time of the critical events had a picture of a horse drawn on it and bore the legend "Don't be a horse's blank. Vote No." The bands also had feathers sticking up from them in the rear. On the day of the election at all times material Napier also displayed a piece of white paper about 6 by 8 inches which had a picture of a piano drawn on it and bore the legend "Play for Joe" (referring to Superintendent Wedding) or words to that effect. The paper was pinned to the bottom of the back of Napier's blouse which she wore hanging loose and the paper hung down from that point. About 1 p.m. Napier and the other girls in her department, which was located on the second floor of the plant, went to vote at the polls which were located on the first floor of the plant. On her way back to work after voting, Napier, follow- ing several other girls from her department, passed the door to the receiving -The above version is that of Vittitow. Hale testified that Pry asked Vittitow "how the union had been going last night," and that Vittitow replied "Okay" and "he didn't see any of your spies there." According to Hale, Pry then said that "His spies were too smart to get caught" and that "we would be fired if we kept on screwing around with the union." In his written statement Hale stated that before Pry mentioned discharge, there had been a lot of conversation between Vittitow and Pry about the Union, but that he did not recall what was said Hale's explanation as to the omission of the statements which preceded the alleged threat from his signed statement was not convincing. Stand- ing alone, I would be reluctant to credit Male's version of this incident, in view of the obvious weaknes of his memory. However, with respect to what I regard the critical por- tion of Vittitow's testimony, the threat that those involved in the Union would be dis- charged, Hale's testimony supplies some corroboration, and in the absence of any denial, I credit Vittitow with respect to this incident. 368 DECISIONS OF. NATIONAL: LABOR 'RELATIONS BOARD department where Wayne Hale' worked. -Hale was standing 2 or 3 feet inside the door leaning against a small table . Mr. Clark, a customer since deceased, was standing in the hall as Napier approached . Clark looked at Napier and laughed, asking her "What way did you really vote?" Napier laughed in response . At that point Hale called out to Napier , "I would like to- kick you in your God-damned big fat ass." Napier turned toward Hale and said, "If you have the guts, go ahead." Hale took a step or two toward the door and invited her to 'come into the receiving department. Napier replied that she would meet Hale halfway . Napier then turned and left to go upstairs to her work station.23 Clark remained at the scene until Napier left and followed her up the stairs until she turned down the aisle ,to her work station. Clark continued on to another portion of the second floor where he had business 24 ' When Napier reached her work station , she saw Wedding standing outside his office with Whitham and two of the. girls who had been walking in front - of her, on the ,way- back, from the polls: The girls, at least one of whom was wearing a headband similar to Napier's, had reported to Wedding immediately on their return that there was a disturbance between Napier and Hale downstairs. When, Napier walked into the department , Wedding motioned her to come to him, and she did. Wedding asked her what the trouble was downstairs . Napier told Wedding that Hale, whom she identified as the red-headed boy in the receiving department- downstairs, had told her "he would like to kick me in my God-damned big fat ass." 25 Wedding stated that he could not put up with -that and left, proceeding to- the receiving department. Wedding approached Hale and asked him if he said "that" to "Tootsie" without repeating the remark . Hale replied that he had said it and meant it.26 Wedding told Hale he would give him his money , took him' to have his check made out, gave it to him, and told him to leave and not return. No statement setting forth the reasons for Hale's discharge Was given to Hale at the time of the discharge . However, Wedding testified at the hearing that Hale was discharged for using vulgar language to a female employee and in front of a customer.27 Hale was disqualified for unemployment compensation on the basis of findings that he was discharged "for making vulgar and insulting remarks to women employees" and "for misconduct connected with work." Hale did not appeal this determination. As I view the issues raised by Hale's discharge, the salient feature is that Hale's remark, which caused his discharge , was itself inextricable from his union activi- ties. Napier forcefully and provocatively displayed her antiunion sympathies wherever she appeared on the day of the election, as is clear from the nature of her insignia, the location of the sheet of paper pinned to the back of her blouse, and the laughter and, remark they evoked from Clark, a customer without direct personal interest. It 'should have been evident that employees supporting the Union, Napier's insignia would be more likely to provoke anger than mirth, as she herself , realized when she testified, "I don't know what they [referring to Hale] seen, the sign or what made them say,it, or not." 23 Napier testified that the ihcident lasted only as long as required to say the words which passed between her and Hale. ' 2A The above version of the incident is based on Napier's testimony, Hale's version differed only slightly in its essential respects . Because Hale's testimony concerning the circumstances which led to the incident raises substantial doubt as to the accuracy, of Hale's recollection , I' have credited Napier where their testimony is in conflict. - 23 Wedding testified initially that Napier told Wedding that Hale threatened to' kick her. However, Wedding subsequently testified as found, consistent with the testimony of Napier. Napier testified at one point that she also told Wedding at this time the remaining words which passed between her and Hale . However, she twice testified that''tlie above state- ment was all that she "said to Wedding, consistent with Wedding 's testimony. I' so'find. '28 Hale initially testified that he told Wedding that he had said it but was ' only kidding. However, 'when'asked specifically whethei •he had told - Wedding ' he meant it , Hale replied that he' didn't kiiow, that he didn't think ' so, and ' did not d'enS say he meant it. I credit Wedding.' a It may be questioned whether the second ground existed at•fli'e time of the; disclarge; in view of ' the rapidity of the events , the"fact that Napier did nof'mentiou Clark's ' pies-' ence to Wedding, and Wedding did not talk ' to'Clerk abbut the''incident until after"the discharge. LOUISVILLE CHAIR COMPANY, INC. 369 Indeed absent any other evidence of cause for Hale's outburst, the direct cor- respondence between the anatomical analogy suggested by the legend on Napier's hat, and Hale's remark made it obvious that Hale's remark, however crude, was a response to Napier derisive solicitation of votes against the Union. Although I have generally found Wedding to be credible and candid in testifying as to the events concerning this and other incidents, he displayed a significant lack of candor in testifying as to his awareness of the insignia worn by Napier. Wedding testified that he did not see what was written on Napier's hat because the insignia was on the back end. However, he conceded that he had seen others wearing similar headbands around her department and had noticed a horse or something drawn on the back of one. He also testified, There was a lot of people wearing hats and buttons around there and I have no idea how they voted over there in that election and apparently I was fooled by a lot of them that I thought might be for the Company when they really weren't. Wedding, after initially testifying that he had no idea whether Napier was for the Union or the Company, conceded that he believed her to be for the Company but did not know it for a fact. When asked if the only people wearing similar headbands were against the Union, Wedding replied, " I never gave it any consideration." In view of the remark which Napier's appearance invoked from Clark, the fact that Wedding's office was located within beckoning distance from Napier's work station, the fact that the headbands and other antiunion insignia were worn in the upholstery department on the day of the election and the previous day, the impression Wedding generally created as a quick, observant, and not aloof plant superintendent with a strong interest in the outcome of the election, and the defensive and at times evasive nature of his testimony in this regard, I do not credit Wedding's disclaimer of knowledge of the slogan on Napier's headband. Moreover, in the light of group leader Stevenson's testimony that only 1 hour before the election, Hale put on a union button,28 and my findings above which cast discredit upon Wedding's testimony insofar as it pertains to the state of his knowledge, as well as the nature of the incident which caused Hale's discharge and its timing in relation to the election, I do not credit Wedding's testimony that he had no knowledge or belief as to Hale's support of the Union at the time of the discharge. In these circumstances, the question to be decided is whether Hale's remark was such as to deny him the protection the Act would otherwise afford 'him in responding to Napier's campaign insignia. The test applicable to a case such as this is whether an employee in the course of concerted activity "engaged in such flagrant, violent, serious, or extreme misconduct as to render [him] unfit for further service." 29 In judging verbal misconduct, the Board there held with reference to offensive cartoons: However, assuming, arguendo, that the cartoon was offensive in character, we do not approve of vulgarity, but do not consider this to be of such a grievious nature as to make Packard unfit for further service. Such mode of expression must be viewed in the context in which it occurs. Thus, its use is not at all unusual in work-a-day associations among industrial workers. Factory and foundry employees do not always employ the language used in polite formal society while at work. It is also a fact that tempers are aggravated and attitudes harden in the stress and strain of sensitive situations such as the one involved herein. Absolute restraint might be more desirable, but cannot be expected realistically.30 Here the context leaves no doubt that Hale's remark was not of such a character as to render him unfit for further service It did not occur in isolation and without provocation . It came at the climax of a long union organizing cam- paign when the stresses and strains inherent in such campaigns are at their peak. Of the witnesses who testified as to Hale's wearing of union buttons in the plant, Stevenson had the least personal and emotional involvement, and I credit Stevenson. 29 Indiana Gear Works, a Division of the Buehler Corporation, 156 NLRB 397, 400, and cases cited therein. 80 Indiana Gear Works, a Division of the Buehler Corporation, supra, 401. 264-188-67-vol. 161-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The conduct of Napier which provoked Hale's remark was apparently deemed by no one. as sufficient to raise any question of her fitness for further service. She and others in her department were permitted-to wear the provocative hat- band on the day of the election in Whitham 's department without , any, restraint- The use of vulgar language was admittedly tolerated in the plant,31 and although Wedding distinguished between the use of such language in telling jokes or addressing machines and its use between employees, such a distinction is more easily stated than observed .32 One does not use language in isolation but in communication with others. Hale's conduct was not violent nor did he threaten violence. In the remark reported to Wedding on which the discharge was based Hale told Napier what he "would like" to do and not what he was going to do. It was Napier who carried the matter forward in a portion of the incident not reported to Wedding before the discharge when she challenged Hale to follow through if. he had the "guts." Hale even then put it to Napier to make a further move if she wanted his wish translated into action. If any threat emerged in the incident, it was evoked by Napier's response, was not reported to Wedding, and was not a reason for the discharge. I conclude- that Hale's choice of terms in which to voice his response to Napier's insignia , while not to be condoned, was not so flagrant, violent , serious, or extreme as to deprive him of protection of the Act, and accordingly that his discharge violated Section 8(a)(1) of the Act. I find it unnecessary to decide' whether Hale's discharge also violated Section 8(a)(3) of the Act, as the remedy in any event would be the same 33 2. The refusal to hire Sweet On July 22, 1965, Joseph E. Sweet applied for employment at Louisville Chair, having been referred by the State Employment Office as an applicant for an opening on Respondent's table line. Sweet had previously been employed by Huttig Sash & Door Company, Inc., and had been discharged by Huttig. Huttig's employees were represented by the Charging Party in this case, and Sweet had been the Union's chief steward at Huttig. Following his discharge, the Union, filed charges against Huttig, and a complaint issued, alleging that Sweet had been unlawfully discharged for performance of his chief's steward's duties. Several weeks before Sweet applied for employment at Louisville Chair, the Trial Exam- iner in the Huttig case issued his Decision finding that Sweet's discharge violated the Act and recommending his reinstatement with backpay. On September 24, 1965, the Board adopted the Trial Examiner's Decision and Recommended Order with respect to Sweet 34 When Sweet arrived at Respondent's plant on July 12, he was directed to Jean Ohmann, the personnel director and plant nurse. Miss Ohmann interviews and hires all applicants for employment for unskilled jobs at Respondent's base rate 36 Ohmann gave Sweet an application for which Sweet filled out and returned to her. ffi Whitham's testimony that she never beard such language used is not credited in view of Wedding's testimony as to its use, my impression generally with respect to her testi- mony described above, and her own earlier testimony that she told Gray a few days before the election , "You talk bad in front of [your wife ] and the rest of the guys are standing right around and they can hear it too." 32 In the incident a few days earlier when Wedding Instructed Whitham to tell Joseph Paul Wright to stop using bad language after Gray complained that Wright used vulgar language in addressing Gray in front of Mrs. Gray , it appears that Wedding 's instruction, at least as reported by Whitham who relayed it, covered all use of vulgar language, and did not draw such a distinction. 33 In reaching this conclusion, I do not rely I on an incident which ' occurred thek day after the election in the welding department, with respect to which Skaggs and Wedding testified and which the General Counsel contended related to Hale's discharge. Although the relationship of this incident to the discharge is no more clear to me now than at the hearing, I would in any event credit Wedding and not Skaggs with respect to this incident. 84 Huttig Sash cf Door Company, Inc., 154 NLRB 1567. 35 Included among those Ohmann hires are employees who work on an individual or group incentive basis. Their actual earnings with bonuses may run considerably higher than the $1.25 base rate at which they are employed . The table line for which Sweet was referred receives group incentive pay. LOUISVILLE CHAIR COMPANY, INC. 371 Sweet's application listed Huttig as his last employer, and $1 .89 per hour as his earnings at the time he left Huttig. Under the heading on the form, "Why did you leave? Give Details." Sweet wrote the single word "Discharge." In response to the question "What experience or training have you had which would help you in the position for which you are applying?" Sweet wrote, "None." According to Sweet, after returning the application to Ohmann, she looked it over and asked Sweet why he was discharged by Huttig, and Sweet replied that "we had Union problems, and I was fired." Sweet testified that Ohmann asked him for further detail, and he replied that he was chief steward, was fulfilling his duties, and was fired. Sweet testified further: She put her hand to the side of her face, shook it back and forth and said she couldn't hire me because we are having Union problems here too. And she said if I was to hire you now I would be looking for a lob myself in the morning. And therefore she said I have to look out for me and I said I can't blame you for that. According to Sweet when he mentioned the reason he was fired, Ohmann asked the identity of the union involved. He replied "AFL-CIO Local 236, and she said isn't that Local 236 and 1 said, Yes ma'm-it was the same one that-cor- rection. And she said that was the same one that was theirs, that we are having Union problems here too." Sweet testified that he did not discuss with Ohmann either his previous wage rate or the rates paid by Respondent 36 In the blank on Sweet's application which called for a statement of the reasons Sweet left Huttig, in addition to the word "Discharge" in Sweet's hand, there also appears the notation, "Union steward lost election got fired" in the hand of Ohmann.37 Sweet denied that he mentioned an election to Ohmann or that he attributed his discharge to loss of an election. Ohmann testified that she had no recollection of her interview with Sweet or any other specific applicant mentioned during the hearing, and her recollection was not refreshed at the hearing. Ohmann interviews fiom 5 to 30 or 40 applicants a day, practically everyday, all of whom are referred by the State Employment Service. Her usual practice in conducting employment interviews is to ask appli- cants to fill out an application form. After the form is completed, she checks it over to make certain that all questions have been answered . If not, she asks the applicant to complete it or makes a notation herself on the basis of the informa- tion elicited in her interview. One of the items she checks is the reason given for a discharge or a quit, and if none appears on the application, she inquires as to the reason . She denied positively that she had ever told any applicant that she could not hire him because of union sympathy, affiliation, or activity. According to Ohmann, her usual practice, from which she was careful not to deviate, was not to question applicants about their union activities ,38 and both before and after the May 27 election, she had hired applicants whom she knew or believed to have been union members in previous employment.39 Ohmann testified initially that her general instructions were to hire applicants who had previously earned $1.25 an hour or less. When first asked if she ever deviated from those instructions, she replied that there might be deviation in the event that the applicant had earned more money in earlier employment, but not in 88 According to Sweet, he had been told at the employment office that the hiring rate at Respondent's plant was $1 25 an hour 87 The record does not establish when this notation was made although it is likely that it was made during the interview. 88 She testified that she was not instructed by Wedding or any one else with respect to questioning applicants about their union sympathies or activities. 89 Ohmann's testimony with respect to a list of 10 such employees, hired between Janu- ary and August 1965, described by her as representative, indicates that her belief as to employee membership was based on her knowledge, understanding, or belief that the em- ployees of employers for whom they previously had worked were represented by unions, but that she had no knowledge as to what unions represented the employees, what em- ployees of these employers were represented, or whether or not they were subject to union- security agreements requiring union membership as a condition of employment. Ohmann testified that in one instance in June 1965, she lured in applicant whose application in- dicated "was on strike" as the reason she left her prior employment in 1959 Ohmann had no recollection of what she or the applicant said during the employment interview. 372 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD his most recent employment. She added than to the best of her recollection she had never deviated from the practice where an applicant had made as much as $1.89 an hour in his immediately previous job. - Later, on, cross-examination, Ohmann testified that she was instructed not to hire employees who were making appreciably more than $1.25 an hour, and then added that if she were hiring employees for piece or bonus work she might hire employees who had previously earned $1.35 or $1.40 an hour, or possibly higher, giving as an example an older worker who had been making $1.50 an hour who applied for a bonus work job. When recalled for further cross-examination following the adjournment in the hearing, Ohmann denied that she had testified that she was instructed to hire employees who were previously paid less than $1.25 an hour, and again stated that she was instructed not to hire employees who made appreciably more than $1.25 an hour. As then explained further by Ohmann, the determina- tion as to what constituted earnings appreciably higher than $1.25 an hour depended upon the length of time since the applicant had received higher earnings, his age, the number and age of dependents, and whether, under the circumstances disclosed by the application, it appeared that he was so accustomed to receiving or in need of higher wages that he would not be a likely prospect to remain as a permanent employee. . Examination of the employment applications of those employees who Ohmann identified as having previously worked for employers whose employees were rep- resented by unions indicated that the exceptions were more substantial than ,Ohmann's initial testimony would have indicated. Thus one employee whose prior earnings had been $525 a month and who had been unemployed for about the same length of time as Sweet was hired because her potential earnings at piecework with Respondent would be as much as $525 a month 40 Two employees with prior earnings of $1.50 an hour were hired as assemblers on the table line where group bonuses gave them potential earnings of $1.50 an hour 41 Another employee whose earnings in his last job were $60 a week and in his next to last job had been $296 a month; or the equivalent of $1.70 an hour for a 40-hour week, was hired at $1.25 an hour because probable overtime gave him a potential of $60 a week. One employee whose prior earnings had been $2.22 an hour was hired as a sewing machine operator at the specific direction of Wedding because of special circumstances. - The table line for which Sweet was referred was a group bonus job for which earnings with bonus averaged about $1.50 an hour. The question presented with respect to Sweet is whether Respondent con- sidered.,his application "in a lawful, nondiscriminatory manner" or failed to consider his application for employment "for reasons proscribed by the Act." 42 The General Counsel's case rests upon the testimony of Sweet, summarized above, which, if credited, would support the inference that Ohmann in considering Sweet's application did not go beyond consideration of Sweet's union activity at his previous place of employment and rejected him for that reason. The credibility issue posed is complicated by the fact that Respondent's attack on Sweet's credibility is more circumstantial than direct. Ohmann, having no recollec- tion of her interview with Sweet, could only rely on her own assessment of her practices and method of operation in stating that she was positive she did not make the statements which Sweet attributed to her. She based her certainty on the asserted fact that union considerations never entered into her determinations with respect to employment, that she never questioned applicants about union affiliation, that she hired applicants despite her belief that they had prior union affiliation, that she would have remembered the incident if she had made the statement attributed to her by Sweet as it would have been unusual, and that Sweet's appli- cation would have been denied as a matter of policy because of his rate of pay at Huttig., In one respect at least, it would appear that the Sweet interview was unusual by Ohmann's standards. For while Sweet did not testify that Ohmann asked him about a Ohmann testified that, the piecework earnings of some operators ran as high as $30 to $35 a day. 41 One of these employees had previously earned $250 a month, which is approximately the same as $1.50 an hour. 42 Shawnee Induetrie8, Inc., 140 NLRB 1451, 1452-53, enfd . In part 333 F.2d 221 (C.A. 10). LOUISVILLE CHAIR COMPANY, INC. 373 his prior union activity , Sweet's union activities were nonetheless discussed in response to her routine question as to the reason for his discharge from Huttig. Moreover, Ohmann's reliance on the fact that she never asked employees about union activity, despite the absence of any instructions to that effect, is beside the mark as no one contends that Ohmann questioned Sweet about his union activities as such. The evidence with respect to the hiring of other employees who Ohmann believed had union background is at best inconclusive. Ohmann's beliefs were for the most part sketchily founded, went to the organization of the plants of appli- cants' previous employers rather than to applicant 's individual activities, and concerned unidentified unions rather than the Charging Union. Ohmann's lack of recollection as to the details of her interviews with any of the applicants, including Mrs. Cslank whose application indicated that she left another employer 6 years earlier because she "was on strike" again unfortunately makes it impossible to know whether inquiry into Cslank's reason for leaving during the interview disclosed further details as to Cslank's union activity and participation in the strike. The extent of Ohmann's knowledge in each of the cases cited rather clearly separates them from the case of Sweet who at the very least disclosed that he had been a chief steward and that his discharge was related to that fact and at most dis- closed considerably more. Of greater significance, however, Ohmann's testimony as to her hiring practices, which ended on a weaker note than it began, does not persuade me that Sweet's rejection as an applicant was as certainly based on policy reasons as Ohmann testi- fied. As set forth above, in her initial testimony, Ohinann drew a firm line and tes- tified that she was instructed to hire only those applicants who had previously earned $1 25 an hour or less. After retreating from and then denying that she had taken this initial position, her testimony finally indicated that out of the relatively small number of applications examined in this proceeding, she had hired two employees who had made substantially more than $1.25 or even $1.89 an hour, one because potential incentive earnings with Respondent were high and one because Wedding asked her to do so for special reasons. The progression in Ohmann's testimony casts substantial doubt upon the rigidity of the policy which she initially testified, without specific recollection, would have caused her to reject Sweet. More important, the sequence of her testimony in this regard also casts doubt upon the general reliability of Ohmann's assessment of what she may have said in the application of standard procedures in an employment interview of which she has no specific recollection, for her testimony in this respect pertained to a function which she regularly performed, and one would expect her to recall her practices in employing applicants more clearly than what may have been said in a particular interview. For all these reasons, I find that absent recollection of her interview with Sweet, the foundation for Ohmann's positive denial of Sweet's tes- timony is weak. On the other hand, Sweet's testimony contains little on its face to suggest that it was untruthful. To be sure, Sweet, as a former officer of Respondent and as the alleged discriminatee , has an interest in this proceeding as does Ohmann by virtue of her position.43 However, at least one detail in Sweet's testimony, that Ohmann put her hand to her face and shook her head upon hearing the reason for Sweet's discharge from Huttig, indicates recollection of a total scene and not mere recita- tion of disembodied statements. Sweet did not impress me as one likely to have invented a detail of this kind While Sweet testified that he identified his union only as Local 236, AFL-CIO, he also testified that Ohmann indicated recognition that this was the same union which sought to represent Respondent's employees. Despite Ohmann's denial that she knew what Local 236, AFL-CIO, was, I am inclined to believe that one in her position would have at least attached sufficient significance to the number 236 to have associated it with the Charging Party and to have made the statement to that effect which Sweet attributed to her and which he did not deny or correct at the time. In sum, on the evidence before me, I conclude that Sweet credibly testified with respect to his interview with Ohmann. Whether Ohmann genuinely does not recall the incident or resorted to a failure of memory as a convenient means to avoid "There is no evidence to support Respondent 's contention that Sweet was a "plant." Sweet had not been reinstated by Huttig when he applied for employment, and there is no evidence that he had expectation of reinstatement in the near future He had a family to support and was - referred to Respondent by the State Employment Service . There is no evidence before me to indicate that he was not seeking employment in good faith. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facing up to herself or to her employer for her lapse , I find it unnecessary to decide, for after considerable reflection , I am convinced that her testimony is not sufficiently reliable to credit her denials of the incident absent specific recollection. Under these circumstances , I conclude that Ohmann failed to consider Sweet's application because of reasons proscribed by the Act and that Respondent therefore violated Section 8(a) (1) and (3) of the Act. D. The alleged refusal to bargain Pursuant to the Decision and Direction of Election of the Regional Director in Case 9-RC-6223, an election was conducted in the following unit, found therein and herein to be appropriate: All production and maintenance employees employed by Respondent at its Louisville, Kentucky, plant, including all plant clerical employees , garage mechanics and their helpers, but excluding all truck drivers and spotters, all office clerical employees, guards, professional employees, and supervisors as defined in the Act. The election resulted in a vote of 187 for and 112 against the Union, with 3 void ballots. Following the election Respondent filed timely objections to conduct affect- ing the results of the election and objections to the conduct of the election. Its objections to conduct affecting the results of the election were based on similar statements in two handbills distributed by the Union which Respondent alleged were grossly and materially misleading and calculated by the Union to deceive and mis- lead Respondent's employees in order to induce them to vote for the Union. Its objections to the conduct of the election were based on the fact that upon counting the ballots after the election it was determined that 302 ballots were cast while only 300 names on the eligibility list were checked off by the observers to the elec- tion as having voted. Respondent contended that the integrity and secrecy of the ballot was not preserved and charged "that `chain balloting' or `chain voting' may have occurred in said election " On July 16. 1965, the Regional Director for Region 9 issued his Supplemental Decision and Certification of Representative in Case 9-RC-6223 pursuant to Section 3(b) of the Act and Section 102.69 of the Board's Rules and Regulations. In it the Regional Director concluded that neither of Respondent's objections raised a substantial or material issue affecting the results of the election and that they should be overruled. Accordingly, pursuant to the authority delegated to him by the Act and the Board's Rules and Regulations, he certified the Union as representative of employees in the appropriate unit. On July 19, 1965, on behalf of the Union, Charles McCormick, United Furniture Workers' regional director, wrote Respondent requesting Respondent to meet with the Union to negotiate a collective-bargaining agreement and suggesting a meeting date. On July 21, 1965, Respondent's attorney responded that he had been instructed by Respondent to appeal the Regional Director's decision to the Board and that the Union's request was accordingly premature and declined. Thereafter Respondent filed with the Board a timely Request for Review of the Regional Director's Supplemental Decision and Certification of Representative in which it urged that the Regional Director's Supplemental Decision be overruled in its entirety and the election set aside or in the alternative that a hearing be held. Respondent subsequently filed with the Board a Supplemental Statement in support of its Request for Review. On September 1, 1965, the Board by telegraphic order denied Respondent's Request for Review "as it raises no substantial issues warranting review." On September 2, 1965, the Union by telegram to Respondent repeated its request for bargaining, and on September 4, Respondent 's attorney replied on its behalf by letter that Respondent did not agree with the Board 's action and that he had been instructed to seek reconsideration and to carry the matter to the courts if the request for reconsideration were unsuccessful . The letter concluded that the request for a meeting was declined as the only means to obtain judicial review afforded by the Act was through an unfair labor practice proceeding . On September 10, Respondent filed its motion for reconsideration of the Board 's denial of its Request for Review reiterating its request for a • hearing with , patticular reference to its objections to the conduct of the election. On October 19, by telegraphic order the Board denied the motion for reconsideration as raising no matter not previously considered, stating "The Board concluded that no substantial issues were raised warranting a hearing " LOUISVILLE CHAIR COMPANY, INC. 375 Respondent seeks in the instant proceeding to reraise one issue which it sought to litigate before the Regional Director and the Board prior to the election 44 and the two issues which it raised by its objections to the election At the hearing Respondent sought to introduce evidence relating to these issues , but on objection by the General Counsel the evidence was excluded , and Respondent was permitted to make offers of proof. I have carefully considered the offers of proof made by Respondent and find, as conceded by Respondent at the hearing , that the evidence thereby proffered is substantially the same as the matter set forth in Respondent's pleadings and affidavits submitted to the Board and the Regional Director in the representation proceeding . Moreover, the facts which Respondent has offered to prove do not conflict with any findings of the Board or the Regional Director in the representation proceeding, and when confronted with pleadings averring the same facts which Respondent offered to prove before me, the Board concluded that no substantial or material issues of fact had been raised warranting a hearing. As the Board has repeatedly held,45 its policy is not to allow relitigation in a complaint proceeding of the legal effect of matters which have been previously litigated and decided in a representation pioceeding , even though a formal hearing on objections has not been provided. All three issues which Respondent seeks to litigate were aired in the representation case, and it is clear that the Regional Direc- tor and the Board , when confronted with allegations identical to those made by Respondent herein, concluded that the proffered matter, even if accepted as true, would not warrant vacating or setting aside the election . Moreover, with reference to the second objection to the election , it may be further observed, that Respondent has offered no evidence that there was "chain balloting ," "chain voting," or other impairment of the secrecy or integrity of the ballots in the election held in the representation case. Rather Respondent seeks a hearing at which it may conduct an investigation of the discrepancy between the number of ballots cast and the number of names checked off by the observers to the election on the eligibility list. The investigation of objections is not subject to the Administrative Procedure Act, and Respondent is not entitled to a hearing on its objections as a matter of right. "The burden is not on the Board to show that the election was fairly conducted but on respondent to show that it was not " N L R B . v 0 K. Van Storage Co, Inc., 297 F.2d 74, 75 (C.A. 5), enfg. 127 NLRB 1537; N.L.R.B. v. Douglas Electric Mein- bership Corporation , 358 F.2d 125 (C.A. 5); N.L.R.B. v Mattison Machine Works, 365 U.S. 123. I conclude that Respondent has not supplied "specific evidence which prima facie would warrant setting aside the election" in connection with this objec- tion such as is required to entitle Respondent to a hearing at any stage of these proceedings . N.L R B. v. OK Van Storage, supia, 297 F.2d 75 Accordingly, Respondent's attack on the validity of the certification must be rejected. A question remains as to when Respondent's obligation to bargain arose and its refusal to bargain commenced. Section 3 (b) of the Act provides: The Board is . . . authorized to delegate to its regional directors its powers under section 9 to determine the unit appropriate for the purpose of collective bargaining , to investigate and provide for hearings , and determine whether a question of representation exists. and to direct an election or take a secret bal- lot under subsection (c) or (e ) of section 9 and certify the results thereof, except that upon the filing of a request therefor with the Board by any inter- ested person, the Board may review any action of a regional director delegated to him under this paragraph , but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director. [Emphasis supplied.] Sections 102.67 and 102 .69(c) delegate authority to the Regional Director to issue a decision on objections disposing of the issues in any case in which he has initially exercised his authority to issue a decision and direction of election . Section 102.67 (b) like the statute, specifically provides that the filing of a request for review shall not operate as a stay of the action taken by the Regional Director unless otherwise ordered by the Board . No stay of the Regional Director's certifi- cation was ordered or sought in this case . Under these circumstances, I conclude that Respondent's obligation to bargain arose on July 16, 1965, when the Regional Director issued his certification of representative and that when Respondent on "This issue concerned the adequacy of the Union's showing of interest furnished In support of Its petition. 46 E g., Carolina Natural Gas Corporation, 157 NLRB 674. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 21 and thereafter refused to bargain at the Union's request, it did so at the risk off.being found to have refused to bargain in -violation of Section 8(a)(5) of the Act in the event that its appeals from the Regional Director's action were denied. Staub Cleaners, Inc., 148 NLRB 278, 296, set aside on other grounds 357 F.2d I (C.A. 2). See also Ken Lee, Inc., 137 NLRB 1642, enfd. 325 F.2d 435 (C.A. 5); Phaostron Instrument and Electronic Company, 152 NLRB 352. Accord- ingly, I conclude that on July 21, 1965, and thereafter Respondent refused and has continued to refuse to bargain in violation of Section 8(a)(5) of the Act. E. The strike The complaint alleges that on or about ,August 17, 1965, certain of Respondent's employees ceased work and went on strike, that the strike continued since that date, and that it was caused and/or prolonged by Respondent's unfair labor practices. Respondent contends that these allegations are not proper for consideration in this case because Respondent has not been charged with discriminatorily refusing to reinstate any striker or any other violation of the Act to which the nature of the strike has any relevance. This contention was rejected by Trial Examiner Kessel in ruling on Respondent's pretrial motion to strike herein. Although Respondent cor- rectly states that the Board's Order in Buffalo Arms, Inc., etc., 110 NLRB 816, cited in the Order denying Respondent's motion, was set aside at 224 F.2d 105 (C.A. 2), the court's decision therein did not reach the issue for which it was cited. 4 am satisfied that the allegations pertaining to the strike are properly con- sidered herein and may be the basis of an appropriate order as part of the remedy for the unfair labor practices, if the strike was an unfair labor practice strike. J. H. Rutter-Rex Manufacturing Company, Inc., 115 NLRB 388, enfd. 245 F.2d 594, 597-598 (C.A. 5). Respondent contends further that the facts adduced at the hearing, which are largely undisputed, fail to establish that the strike was caused by its unfair labor practices. The facts relating to the strike are as follows: On December 23, 1964, Teamsters Local Union No. 89 was certified as the representative of Respondent's truckdrivers. Around February 1, 1965, Respondent and Local 89 commenced negotiations. As of August 1, no agreement had been reached between them. ,On August 4, 1965, Local 236 held a meeting of its members employed by Respondent. The notice for this meeting stated: A SHOWDOWN IS COMING . Already plans are being made for JOINT ACTION between Furniture Workers Local 236 and Teamsters Local 89. The negotiating committees of Local 236 and Local 89 will meet prior to the general membership meeting on Wednesday, at 5:30 P.M. Approximately 175 employees attended and voted unanimously to give authority to the Union's negotiating committee to call a strike at their discretion. McCormick, regional director of the parent International of Local 236 chaired the meeting and told the employees that he recommended adoption of the resolution in the face of Respondent's continued harassment to union people and the Company's continuing refusal to bargain with Local 236. Saul Silverman, national organizational coordi- nator of the United Furniture Workers and Atterbury, a representative of Team- sters Local' 89, were also present at the Local 236 meeting. Silverman mentioned the Teamsters' negotiations and the fact that no agreement had been reached with the Teamsters after 6 months of negotiations. On August 5, 1965, McCormick sent Respondent a telegram charging that Respondent's letter of July 21, "1965, in which it declined the Union's request to bargain as,premature,' constituted an unfair labor practice. The telegram continued: ';At, a meeting called of the production and maintenance employees of your Com- panyion August,4 '1965 a unanimous vote to .strike against the- continuing'unfair labor, practices of the Company took'-place." The letter then repeated the Union's demand for -immediate' bargaining. 'On August 9, under ^ the auspices of the Federal Mediation and Conciliation Service, 'representative's, of Respondent and the Union met,` after McCormick and Respondent's Attorney Smith signed the'-following memorandum: It is understood by both,parties that this is an off-the-record meeting held,at the invitation of F.M.C.S. and will not be ' used ' in' any 'way' by either party in any pending or future proceeding., The sole purpose,ofthe. rheeting is an attempt to improve the atmosphere. LOUISVILLE CHAIR COMPANY, INC. 377 During the course of this meeting, Silverman, who was present, pressed for immediate negotiations, and Smith, who spoke for Respondent, took the position that Respondent would not decide on its course of action until after the Board had decided its appeal. During the course of the meeting, Smith told Silverman Respondent would inform the Union whether or not it would bargain within 24 hours after the Board's decision was received, and Silverman stated that he would take no action until after hearing from Smith following the Board's Decision46 The discussion then turned to measures which might be taken to ease tensions in the plant in the interim. On August 16, Respondent and Teamsters Local 89 met all day and again in the evening in an effort to resolve their remaining differences. Early in the morning on August 17, the negotiations terminated with the parties deadlocked. During the course of the meeting, Teamsters Representative Atterbury told Respondent that if no agreement was reached, a strike would start the next day. The next morning, August 17, Silverman called Smith and informed him that if the Teamsters went on a legitimate strike, the Furniture Workers would help them in every way they could. Silverman also stated that the Furniture Workers would not only respect the Teamsters' picket lines but that their "official position" would be that their patience had run out and that they were striking because of Respond- ent's unfair labor practices and refusal to bargain.47 During this conversation Smith reminded Silverman of the agreement reached at the August 9 meeting that the Furniture Workers would not go out on strike or take any action until the Board had decided the representation case. Silverman replied that he expected to be dealing with Smith for a long itme, that he did not want to be underhanded or accused of doing things behind the backs of others, and that he had called for the purpose of letting Smith know what the situation was. During the conversation, Silverman also reminded-Smith that he had told Smith on August 9 that the employees had voted that if the Teamsters struck, they would also strike. On the morning of August 17, the Teamsters struck and" began to picket Respondent's plant shortly before noon. During the morning the Union' s negotiating committee met and called a membership meeting at. noon. At the noon meeting, again attended by approximately 175 employees of Respondent, McCormick told the employees that there was no indication that Respondent intended' to bargain and recommended that they strike immediately for a contract. They voted to do so, and, the strike began around, 1 p.m. Pickets were posted at that time with signs bearing the following legends: "UFWA-AFL-CIO, United Furniture Workers on strike, Louisville Chair Company refuses to bargain with Local 236" and "AFL-UFWA-CIO On strike against the unfair labor practices of the Louisville Chair Company. Local 236." Signs bearing these legends continued in use through- out the course of the strike. The Union did not communicate further with Respond- ent from August 17 until it sent its telegram of September 2, reiterating its bar- gaining demand. On September 17, Respondent and Teamsters Local 89 reached an agreement, and the drivers returned to work shortly thereafter. However, the production and "These findings are based on the, testimony of Wedding and Milton P. Conrad III: Respondent characterizes this eicliange as an agreement not to strike and relies upon it as evidence that Respondent's refusal to bargain was not the cause of the strike, which commenced before the Board decided its appeal '. In view of the nature ,of the meeting, the memo'ranilum executed preceding the meeting at Respondent 's insistence,' and nature of the discussion described by Wedding and Conrad , I view the statements of Smith and Silver- man as statements of their "present intention rather than' offer and acceptance , constitut- ing a verbal agreement. In any event, I would not find; and it does not appear to be urged, that' this exchange constituted ' an unequivocal waiver of the employees ' right to strike until after the Board 's Decision ' on Respondent's appeal had issued . Even' ' absent the memorandum , as Respondent refused to recognize the Union as representative'Wits em- ployees, it would be difficult to conclude that Respondent entered into any agreement with the Union in its representative capacity.' " Silverman also stated "I hope' you'understand 'what I' am 'saying'or rather'what I am not saying." Smith replied that he did not', and Silverman explained "Well; if the Team- sters go out then'the'Furnitdre Wo'rker's will ' feel morally' obligated to do something more than simply stand by." ' ' j 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance workers remained on strike and were still on strike at the time of the hearing herein.48 It is evident from the above that the timing of the strike was influenced and probably determined by the breakdown in the negotiations between Respondent and the Teamsters. It may well have been that but for the Teamsters' strike, the Union would not have struck at least until after the Board had acted upon Respond- ent's appeal from the certification. To that extent the Teamsters' strike was cer- tainly a cause of the Union's strike. But it does not follow that the Teamsters' strike was the sole cause of the strike, and there is substantial evidence that the Union would not have struck Respondent but for its separate dispute over Respond- ent's refusal to honor the certification and bargain. Thus, even before the Team- sters struck, the members from Respondent's plant voted to authorize a strike against Respondent, and in determining to take strike action, the membership had before it Respondent's refusal to bargain with the Union as well as the Teamsters' dispute. The signs carried by the strikers protested the refusal to bargain, and no action taken by the Union was inconsistent with its contention that the strike was in protest of that refusal. To the contrary, when the Teamsters' strike ended, the Union's strike continued, indicating a substantial independent cause of the strike. I find nothing in the statements of union representatives to indicate the contrary. The statements of Silverman, who was present on August 9, to Smith on August 17 undoubtedly reveal that the timing of the strike by Local 236 was determined by the Teamsters' decision to strike. But they do not concede the lack of any separate cause for the strike.49 Rather they indicate a determination to act contrary to his indicated intention on August 7 so that Local 236 would do more than merely support the Teamsters' strike. On the facts thus presented I conclude that the strike had at worst dual causes and was an unfair labor practice strike from its start59 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection 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 thereof. V. THE REMEDY Having found that Respondent engaged in certain violations of Section 8(a) (1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. As Respondent on or about July 21, 1965, and at all times thereafter refused and still refuses to bargain with the Union as the representative of its employees in an appropriate unit, it will be recommended that Respondent, upon request, bargain collectively with the Union , and in the event that an understanding is reached, embody such understanding in a signed agreement. It has been found that at the time of the hearing Respondent's employees were engaged in a strike caused and prolonged by Respondent 's unlawful refusal to bargain. The striking employees were therefore entitled to reinstatement upon application, whether or not their positions had been filled by the hire of replace- ments. Accordingly, in order to effectuate the policies of the Act, it will be recom- 48 On November 11, shortly before the hearing commenced herein , Sloan, a vice presi- dent of the United Furniture Workers of America, telephoned Smith to inquire whether they could meet to attempt to settle the dispute. During the course of the conversation, Smith quoted Silverman as stating that the Union's official position was that the patience of Local 236 had run out at the same time as the Teamsters . Sloan stated that he did not understand that this was the cause of the strike but understood that the Teamsters struck first and the Furniture Workers recognized, their picket line. 49 The statement on November 11 of Sloan, who as far as the record shows had no first hand knowledge of the facts, can be given no greater significance , particularly in view of the fact that at the time of his conversation with Smith the Teamsters' strike had been over for nearly 2 months and the Local 236 strike continued. 50 The Little Rock Downtowner, Inc, 145 NLRB 1286, 1311-12, enfd. as modified 341 F.2d 1020 (C.A. 8). See Wooster Division of Borg-Warner Corporation, 121 NLRB 1492, following 236 F.2d 898 (C.A. 6). LOUISVILLE CHAIR COMPANY, INC. 379 mended that Respondent shall, upon application, offer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, to all employees who went on strike on August 17, or there- after, dismissing, if necessary, any persons hired on or after that date 61 It is also recommended that Respondent make whole those employees who went on strike on August 17, 1965, or thereafter, for any loss of pay they may have suffered or may suffer by reason of Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for reinstatement, to the date of Respondent's offer of reinstatement, less his net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. With respect to Wayne G. Hale, who was discharged in violation of Section 8(a)(1), and Joseph E. Sweet, who was discriminatorily denied employment, effectuation of the policies of the Act would ordinarily require that they be offered reinstatement and employment, respectively, with backpay. However, it appears that on August 23, 1965, after the strike had started, Respondent mailed letters to Hale and Sweet in which Respondent offered Hale employment substantially equivalent to the job he held before his discharge and offered Sweet employment. On or about August 25, Sweet and Hale separately visited the plant in response to the letters and told Superintendent Wedding they would like to work but would not cross the picket line to do so. I find that thereby both Hale and Sweet became unfair labor practice strikers on August 25, 1965, who thereafter voluntarily with- held their services in support of the strike. Accordingly, it will be recommended that as in the case of the other unfair labor practice strikers, Respondent shall, upon application, offer Hale reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and shall, upon application, offer Sweet immediate employment at the same position as, or a position substantially equivalent to, that at which he would have been employed if he had not been discriminated against, without prejudice to any seniority or other rights and privileges he might have acquired. It is further recommended that Respondent make Hale and Sweet whole for any loss of earnings suffered by them as a result of the discharge and refusal to hire, respectively, by payment to each of them of a sum of money equal to that which they normally would have earned as wages during the period from May 27, 1965, in the case of Hale, and July 12, 1965, in the case of Sweet, until August 25, 1965, when they became unfair labor practice strikers. Further, it will be recom- mended that Respondent make them whole for any loss of pay they may have suffered or may suffer by reason of Respondent's refusal, if any, to reinstate Hale or employ Sweet by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for reinstatement or employment, respectively, to the date of Respondent's offer of reinstatement or employment 62 From these sums of money -net, earnings shall be deducted and interest' added at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2 (2), (6), and (7) of the Act. 2. Local 236,` United Furniture Workers of America , AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Louisville, Kentucky, plant, including all plant clerical employees , garage mechanics and their helpers, but excluding all truckdrivers , and spotters, all office clerical employees, guards, professional employees , and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 61 Buffalo Arms, Inc., supra; J. H. Rutter-Rem Manufacturing Co., supra. 52 Northern Virginia .Sun Publishing Company, 134 NLRB 1007, 1008-10, vacated and remanded on other grounds , 314 F.2d 260 (C.A.D C.). 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. At all times since July 16, 1965, the Union has been, and now is, the exclusive representative of the employees in the said unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By threatening employees with discharge for union activity, by discharging Wayne G. Hale for his conduct while engaged in protected union activity, by refus- ing to consider Joseph E. Sweet's application for employment for discriminatory reasons, and by refusing on and since July 21, 1965, to bargain collectively with the Union as the representative of the employees in the above unit, the Respondent has engaged in and is engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of the law, and pursuant to Section 10(c) of the Act, I hereby recommend that Respondent, Louis- ville Chair Company, Inc., Louisville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge or other reprisal for engaging in pro- tected union activities under color of enforcement of a discriminatorily applied rule against solicitation during working hours or otherwise. (b) Discharging employees because of conduct which constitutes concerted activ- ity protected by Section 7 of the Act. (c) Discouraging membership in Local 236, United Furniture Workers of America, AFL-CIO, or any other labor organization, by refusing to consider appli- cations for employment or otherwise discriminating in regard to the hire and tenure of employees or any term or condition of their employment, except as authorized in Section 8(a)(3) of the Act, as amended. (d) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with Local 236, United Furniture Workers of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section of the Decision entitled, "Conclusions of Law." (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organi- zations, to join or assist the above-named or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in any other activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the .policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to Wayne G. Hale and all those employees who went on strike on August 17, 1965, or thereafter, and upon application, offer to Joseph E. Sweet immediate employment at the same position as, or a position substantially equivalent to, that at which he would have been employed had he not been dis- criminated against, without prejudice to any seniority or other rights and privileges he might have acquired, dismissing if necessary any persons hired on or after August 17, 1965. (c) Make whole all the employees referred to in paragraph (b) above in the manner set forth in the section of the above Decision entitled, "The Remedy." (d) Notify the above-mentioned employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement, or in the case of Joseph E. Sweet, employment, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve, and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, time- cards, personnel records and reports, and all other records relevant and neces- sary to a determination of compliance with paragraphs (b), (c), and (d) above. LOUISVILLE CHAIR COMPANY, INC. 381 (f) Post in conspicuous places at its Louisville, Kentucky, place of business, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 5S Copies of said notice to be furnished by the Regional Director for Region 9 after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.54 IT IS FURTHER RECOMMENDED that the complaint otherwise be dismissed. 53 Ithe event that this Recommended Order Is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 64 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 bargain collectively upon request with Local 236, United Furniture Workers of America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our Louisville, Kentucky plant, including all plant clerical employees, garage mechanics and their helpers, but excluding all truck drivers and spotters, all office clerical em- ployees, guards, professional employees, and supervisors as defined in the Act. WE WILL, upon application, offer Wayne G. Hale and all employees who went on strike on August 17, 1965, or thereafter, immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL offer to Joseph Sweet immediate employment at the same position as, or a position substan- tially equivalent to, that at which he would have been employed had he not been discriminated against, without prejudice to any seniority or other rights and privileges he might have acquired, dismissing if necessary any persons hired on or after August 17, 1965. WE WILL make the above-mentioned employees whole for any loss of pay they may suffer as a result of our refusal to reinstate or employ them upon application, and WE WILL make Wayne G. Hale and Joseph Sweet whole addi- tionally for any loss of pay they may have suffered as a result of the discharge of Hale and the refusal to employ Sweet from the respective dates thereof until August 25, 1965, when they rejected offers of employment because of the strike. WE WILL NOT discharge employees because of conduct which constitute concerted activity protected by Section 7 of the Act. WE WILL NOT discourage membership in Local 236, United Furniture workers of America, AFL-CIO, or any other labor organization, by discrimi- natorily refusing to employ any applicant for employment or by discriminat- ing in any other manner in regard to the hire or tenure of employment of employees, or any term or condition of employment. 382 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with discharge or other reprisal for engaging in protected union activities under color of enforcement of a dis- criminatorily applied rule against solicitation during working hours or otherwise. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Local 236, United Furniture Workers of Amer- ica,'AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. LOUISVILLE CHAIR COMPANY, INC., Employer. Dated------------------- By------------------------ ------------------- (Representative) (Title) NOTE.-We will notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement or employ- ment, as the case may be, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after dis- charge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627. Serv-Air, Inc. and International Association of Machinists, AFL- CIO and Smoke-Eaters Lodge No. 898, International Associa- tion of Machinists, AFL-CIO. Cases 16-CA-2122, 2131, 2163, 2176, and 2187. October 25,1966 DECISION AND ORDER On November 18, 1965, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in. the complaint and recommended dismissal of the complaint with respect thereto. Thereafter, the Respondent and General Counsel filed excep- tions to the Decision and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 161 NLRB No. 17.