Gulf & Western Industries, Inc.

GULF & WESTERN INDUSTRIES Gulf & Western Industries, Inc., and Its Wholly-Owned Subsidiary Electro-Chemical Finishing Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL- CIO. Case 7-CA-5727 June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 29, 1967, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Trial Examimer's Decision and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Electro-Chemical Finishing Company, Middleville, Michigan, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. IT IS FURTHER ORDERED that the complaint against Gulf & Western Industries, Inc., be, and it hereby is, dismissed. i We agree with the Trial Examiner that Respondent 's true motive for discharging its 10 employees was their concerted activity in seeking im- proved wages and working conditions. See Gullets Gin Company, Inc., 83 NLRB 1, enfd. in relevant part 179 F.2d 499, 502 (C.A. 5). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL M. SINGER, Trial Examiner: This case was heard before me at Grand Rapids, Michigan, on January 17 and 18, 1967, pursuant to a charge filed on September 30 and a complaint issued on November 23, 1966.' The issues litigated were whether Respondents violated Sec- tion 8(a)(1) of the National Labor Relations Act: (1) by unlawfully discharging and refusing to reinstate 10 em- ployees because they engaged in a protected work stop- page or strike in support of concerted demands for im- proved wages and working conditions; and (2) by threatening employees with disciplinary action or discharge for wearing union insignia. All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. All waived oral argument at the conclusion of the case. Briefs were received from General Counsel and Respondent.2 Upon the entire record in the case,3 the briefs, and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENTS Respondent Electro-Chemical Finishing Company, a Delaware corporation with principal office and place of business in Middleville, Michigan, is engaged at its Mid- dleville plant (the only facility here involved) in elec- troplating, metal stamping, and related operations and processes. It annually ships therefrom to States other than Michigan products valued in excess of $100,000 and there receives from States other than Michigan products valued in excess of $50,000. Electro-Chemical Finishing Company is a wholly owned subsidiary of Respondent Gulf & Western Industries, Inc. Gulf & Western Industries, Inc., a Michigan corpora- tion with principal office and place of business in Houston, Texas, through its subsidiaries in various States (including Michigan, Ohio, Pennsylvania, New York, Florida, and Connecticut) is engaged in the manufacture and sale of various manufactured products. It annually ships through its subsidiaries products valued in excess of $50,000 to States outside those in which the subsidia- ries' plants are located. I find that at all material times each Respondent has been and is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Work Stoppage 4 1. The concerted demands leading to the walkout I Unless otherwise noted, all dates herein refer to 1966 2 General Counsel's motion-to strike out Respondent's brief because filed 3 days late is hereby denied in view of satisfactory explanation. 3 Corrected by an order dated February 28, 1967. 4 The findings in this section are based largely on uncontradicted em- ployee testimony (adduced by General Counsel) and credited testimony of Plant Manager De Young (adduced by Respondent). 166 NLRB No. 15 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the afternoon of September 19, Respondent's 5 welders decided to talk to Plant Manager De Young about better wages and working conditions. The next morning some of them met outside the plant and, after punching in for the 7 a.m. shift, went to the company cafeteria. Seeing 10 of them (out of a total of around 12) there, Foreman Davies asked them "what was going on, if [they] were going to work." Told that they "wanted to see Mr. De Young, plant manager, to get more pay and safer and better working conditions," Davies said they would have to do that on their own time and to punch out, which they did. In the discussion with Davies, the men identified themselves as a self-organized committee or group, unaffiliated with the Union, which at that time was conducting an organizational campaign. They told him that jobs were available at other plants at higher wages, that "jobs were a dime a dozen." Shortly thereafter Superintendent Bartlett approached the men in the cafeteria. When Bartlett asked them to return to work, they told him that they would not do so until they spoke with De Young. At about 8 a.m., De Young, Bartlett, Davies, and Company President Hepfer met with the welders in De Young's office. When the welders said they wanted "to negotiate" improved wages and working conditions, De Young reviewed the Company's brief history since 1965, including its job classification and wage structure, and then said wages could not be reviewed before May 1967. The men were assured that faulty equipment was being corrected. One of the employees declared that the men would not return to work until De Young "bargained" about more money. Another pointed out that other facto- ries were paying higher wages to general laborers than Respondent was paying to welders. De Young testified that he told the men, "the decision was theirs" and that they "could either go back to work and accept what we had to offer here or go outside and accept these other positions. " 6 When one of the employees indicated intention of the group to leave, a management representa- tive told them to pick up their tools. No employee stated that he was quitting or terminating his employment with Respondent;7 nor is there evidence that any employee sought to be paid off. After leaving the office, most picked up their personal belongings as suggested by Respondent. Later the same day (September 20), Respondent (through Supervisor Davies) made out a "notice of separation" for each employee, stating in identical lan- guage that the employee "Quit-without reasonable notice" because he "want[ed] more money." Each 5 For convenience, Electro-Chemical Finishing Company (whose em- ployees alone are here involved) will be referred to as Respondent For reasons hereafter stated (The Remedy section) the Recommended Order herein will not be directed against Gulf & Western Industries, Inc 6In his preheanng affidavit, De Young had stated "I then reemphasized our position and told them they should either quit or go back to work " 7 De Young testified that he could not "honestly recollect anyone say- ing we are going to quit " Bartlett admitted that none said "they were quitting their Jobs " " The employees invojved, all subjects of the complaint herein, are Bernard Hause, Allen E Hayes, Sr, Phillip Justice, William Klump, Wayne Martz, Frank Misak, Raymond Sinclair, Darcy R Thomason, Merle Thompson, and James Vanderwood 9 Based on the credited, mutually corroborative testimony of Klump and Thomason 10 Eight of the ten employees here involved made or renewed former applications for jobs (filed before the events here involved) elsewhere on or around September 20 and 21 "notice" also specified that the employee would not be eligible for reemployment in the future.8 2. The applications for reinstatement After leaving the plant, 6 of the 10 employees (Hayes, Justice, Klump, Martz, Thomason, and Thompson) went to a downtown restaurant and discussed the situation, "wonder[ing] if [they] were right in what [they] were doing." The men decided "to stick it out" and while "waiting to see how things came out ... [to] go and put . applications [for jobs] in at other places."9 The men thereafter in fact made application at neighboring plants. 19 The next morning (September 21), three of the men (Klump, Hayes, and Thomason) met in Klump's home, again discussed the walkout, and decided to talk to De Young "to see if [they] couldn't get him to change his mind." Later that morning De Young interviewed each of the three separately. De Young testified that the men asked if they "could have [their] old job back" "at the same status" they had on December 19.11 He further testified that he told each employee the Company was "pretty disturbed that an employee would quit, like this"; that if rehired, he would "start over as a new employee, that is to start over at the new rate ... wait their time for their insurance program to get seniority and so forth"; and that he would give his decision on taking them back the next day. On the same day, De Young told a fourth employee, Misak, "basically the same thing." 12 In the evening of the same day (September 21), Hayes, Thomason, and Klump again met at the latter's home, this time with Union Representative Root,13 and decided to go to the plant together the following morning to get De Young's decision about returning to work. The three together saw De Young in the morning (Sep- tember 22). De Young told them in the lobby he would "make this short and sweet"-that (in De Young's words) "our decision was not to rehire any of these em- ployees" since they "were unhappy at the time they were with us. they had decided to leave us and walk out of the plant to accept ... other positions." De Young added. "what would prevent [the employees] from walking out again if we would bring them back to work." When he stated that the men "had the opportunity to go back to work or quit yesterday," Thomason (according to De Young) "quite emphatically said we didn't quit." De Young replied that he would not discuss the matter further. 14 1 1 According to De Young, Thomason also indicated that he wanted a wage increase 12 On the previous evening (September 20), when Misak asked Super- visor Lash about the possibility of returning to work, Lash suggested he see De Young Misak spoke to De Young twice the next day The first time, De Young told Misak he was "worried" that if rehired the "men would quit again " 11 Klump's testimony that the union representative had also attended the first meeting at Klump's home earlier in the morning appears to be in error Neither Hayes nor Thomason identified Root as one of the atten- dants. 14 In his prehearing affidavit , Superintendent Bartlett, who accom- panied De Young, quoted De Young as saying "he was not going to take any of the fellows back - that they were unhappy with the pay as it was when they were working here and what assurance did he have that they wouldn't continue to be unhappy if they came back as new employees He said irregardless [sic] of that the decision has been made that we are not going to take back any of you fellows Thomason said that they didn't quit Cliff (De Young) said they were offered the opportunity to go back to work and in my eyes when you walked out the door you quit " GULF & WESTERN INDUSTRIES When employee Misak telephoned De Young the same morning about returning to work. De Young told him. "the answer is no ... try some later date." To Martz. who asked the following week "if he could have his job back." De Young said, "my decision was not to rehire any of the employees that had quit." And around the same time (September 29). Supervisor Davies told em- ployee Vanderwood who "asked him if [he] could come back to work." that the Company "wasn't hiring any- body." The record does not disclose whether Thompson. Justice, Sinclair, or Hause made a formal personal request for reinstatement. 15 De Young indicated at the hearing that they would have received the same answer as the others. He admitted that the Company not only had job openings but was in need of welders when the men personally applied for reinstatement. The record establishes that on Friday. September 23, some of the terminated employees (Klump, Hayes. Thomason. Thompson. and Justice) picketed the plant. publicizing the existing dissatisfaction over wages and working conditions. 3. Conclusions a. The unfair labor practices The undisputed facts show that the 10 welders in question engaged in a work stoppage after reporting to work on September 20. Within an hour they presented their grievances on wages and working conditions to Plant Manager De Young. In attempting to persuade De Young of the justice of their cause, they pointed out. among other things, that other employers were paying higher wages. De Young in effect gave them the choice of working under existing wages and working conditions or quitting to seek other jobs. Undesirous of working under existing conditions, the employees left in concert and Respondent removed them from its payroll, marking their individual records "Quit-without reasonable notice" because they "want[ed] more money." Section 7 of the Act guarantees to employees the rights of self-organization. collective bargaining, and "other concerted activities" for "mutual aid and protection." It is settled that concerted work stoppages and strikes in protest of working conditions fall within the ambit of such protected concerted activity. N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9; N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, Inc., 285 F.2d 8, 12 (C.A. 6). It is also established that "if men strike in connection with a current labor dispute their ac- tion is not to be construed as a renunciation of the em- ployment relation and they remain employees for the remedial purposes specified in the Act." N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347. "There [is] clearly no quitting by them except in the sense that they [refuse] to work as demanded during the continuance of the strike." J. A. Bentley Lumber Co. v. N.L.R.B., 180 F.2d 641, 642 (C.A. 5). Consequently, while an employer, guilty of no unfair labor practice. has the right to continue business by supplying places left vacated by strikers, he may not under the Act terminate '5 Justice was among the employees who picketed the plant on Sep- tember 23 (infra). Plant Manager De Young 's prehearing affidavit identi- fies Thompson as another picket. 9 the employee status of striking employees or discriminate against them because they are on strike. "Any such dis- crimination in putting them back to work is prohibited by Section 8." Mackay, supra at 346. The basic issue here is whether Respondent in fact discharged the 10 welders because they concertedly refused to work under Respondent's conditions. Assum- ing that standing alone and without more, De Young's September 20 - ultimatum that the welders choose between status quo or quitting was insufficiently unequivocal to support a finding of discharge, accom- panying circumstances leave little doubt that this was really Respondent's intention. Admittedly. none of the welders said he was quitting or ending his employment. They wanted only "to negotiate" or bargain for improved wages and working conditions. None of them asked to be paid off, nor was there other manifestation on their part to call it "quits" for good. 16 Respondent lost no time in seizing upon the employees' action to precipitately cut off the employment relationship. As the employees were merely leaving the office (as distinguished from their jobs), it directed them to remove their personal gear. Respondent then sua sponte made uncommunicated, self-serving entries on its personnel records, branding them as "quits," and ineligible for future employment with it, although all were good workers. It thereafter refused to permit any of them to return to work even though none had yet been replaced and it admittedly was in need of welders. Employees who reported to work within 24 hours were all told that if they were rehired at all, it would only be as "new" employees with loss of all accumulated seniority and benefits. Respondent persisted in its insistence that the welders had "quit" in the face of employee denials. And Respondent's wholesale ban against reemployment applied to all, irrespective of their proven skill and efficiency. All the circumstances carefully considered. I am per- suaded that none of the employees quit; that Respond- ent's described activities were not activated by any belief that they had quit; and that Respondent discharged these employees because of their concerted activity in seeking improved wages and working conditions. Cf. N.L.R.B. v. Stowe Spinning Co., 165 F.2d 609, 615 (C.A. 4); Staub Cleaners Inc., 148 NLRB 278. 295. I am fully persuaded and I further find that when De Young told the welders reporting to work that "he was pretty, disturbed" at the walkout, that he was "worried" that if rehired they would again "quit," and that "what would prevent them from walking out again if we should bring them back to work."-De Young was only expressing Respondent's "resentment against employees for pressing their rights under the Act." Gullett Gin Company, Inc. v. N.L.R.B., 179 F. 2d 499, 502 (C.A. 5). I conclude that Respond- ent's treatment of the employees as "quits" on Sep- tember 20 was in reality a discharge for engaging in a pro- tected strike. See Staub Cleaners, supra; Frick Com- pany, 161 NLRB 1089. Cf. N.L.R.B v. Comfort, Inc., 365 F.2d 867.875 (C.A. 8). In reaching the above conclusion I am mindful of the fact that after leaving De Young's office, many of the weld- ers made or brought up to date applications for employ- ment elsewhere. This in itself does not, however, compel is The record shows that four (Hayes, Klump, Thomason, and Justice) did not pick up their checks until September 23 when they also picketed because of De Young's refusal to rehire them 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the inference that they had chosen to terminate the em- ployer-employee relationship of Respondent. Cf. The Northern Virginia Steel Corporation, 132 NLRB 714, 731, enfd. 300 F.2d 168. 175 (C.A. 4). There is nothing unusual for employees idled by work stoppages to search for other jobs to tide them over a strike, nor, indeed, even for fully-employed and satisfied employees to seek to better themselves by applying for positions at other establishments. Such applications do not establish that the applicants are necessarily unemployed. This is par- ticularly true where, as here, the men had decided on this course while "waiting to see how things came out." 17 Moreover, there is no evidence that Respondent knew of any job applications when it removed the employees from its payroll on September 20. I conclude that the walkout of September 19 was pro- tected concerted activity; that the employees engaging therein were economic strikers; and that by discharging them on September 20 Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7, thereby violating Section 8(a)(1), of the Act.18 b. The welders' offers to return The law is settled that a strike, although initially un- dertaken for economic reasons, may be converted into an unfair labor practice strike where the employer commits unfair labor practices tending to prolong the strike. Philip Carey Manufacturing Company, Miami Cabinet Divi- sion v. N.L.R.B., 331 F.2d 720, 729 (C.A. 6), cert. de- nied 379 U S. 888; N.L.R.B. v. Giustma Bros. Lumber Co., 253 F.2d 371, 374 (C.A. 9). On and after the date of conversion of the character of the strike, its legal posture is the same as that of a strike initially caused by unfair labor practices. with the strikers thereafter entitled to reinstatement upon request. irrespective of their having been replaced during the remainder of the strike. Mastro Plastics Corp v. N.L.R.B., 350 U.S. 270, 278. ' r Respondent relies heavily on the testimony of its witness Gerald Mater, personnel director of Bliss Manufacturing, that all seven or eight employees whom he interviewed on September 20 and 21 had stated they "quit" Respondent and that he so noted on their applications Mater con- ceded that the notations regarding "quitting" were in his handwriting, that he was uncertain as to the specific answers given him since he "inter- viewed so many from this place," but recalled "getting basically the same answer" from all Employee witnesses of General Counsel denied telling Mater that they had quit , denied knowledge of Mater's notations on the applications, and credibly insisted that they had informed him merely that they had walked out over poor working conditions It is a matter of com- mon knowledge that persons seeking employment do not volunteer or even perhaps admit to prospective employers their connection with strike activity Even assuming that the employees here intentionally concealed from the prospective employer the fact that they had walked out on their last employer , and even assuming that they used the euphemism "quit," such action while not to be condoned would be understandable in view of the known reluctance of some employers to hire strikers Moreover, an employer in need of help may hesitate to employ strikers who may turn out to be temporary employees - only to return to their old jobs on settle- ment of the strike '" Respondent's alternative theory that even if the employees did not quit voluntarily they walked out for unlawful objectives - thereby losing protection of the Act-does not require extended consideration Respond- ent argues that by seeking to "negotiate" wages and working conditions the welders constituted themselves a labor organization within the broad meaning of that term under the Act, that by attempting to seek "premature recognition" as collective-bargaining representative in the face of the then pending UAW campaign , they were in effect "attempting to force As found, on September 20 Respondent unlawfully discharged 10 welders because they exercised their statu- tory right to strike Within the next few days. Respondent informed these welders when they presented themselves for work, that if they were permitted to work at all, it would only be as new employees. Later, it advised them that it would not hire them even as new employees. Respondent's action naturally engendered resentment among the welders and forcefully demonstrated to them that their only hope of work with Respondent was by con- tinuing the strike as long as there was hope of success. Accordingly, I find that Respondent's September 20 un- fair labor practice prolonged the strike. I further find that the strike, while initially economic in character was trans- formed into an unfair labor practice strike when the unfair labor practice became known to employees reporting to work on September 21. There remains the question as to which strikers are en- titled to reinstatement. It is settled that an employer's reinstatement and basic pay obligation does not come into play until strikers abandon the strike and evidence an un- conditional willingness to return to work, usually by way of applications for employment. N.L.R.B. v. Globe Wire- less, Ltd., 193 F.2d 748, 752 (C.A. 9).19 The credited evidence establishes that 4 of the 10 welders (Klump, Hayes, Thomason, and Misak) made unconditional appli- cations to return to work on September 21; and a fifth (Martz) a week later (September 28), and a sixth (Van- derwood) on September 29. 1 find that Respondent's obligation to reinstate these employees accrued on the dates indicated. While it is true that employees normally manifest willingness to return to work by applying for reinstate- ment (either personally or through their representative). under well-established legal principles an actual applica- tion for reinstatement is not a sine qua non to the right to reinstatement and backpay where the employer's conduct has made it plain that such application would be super- fluous, a mere empty formality, or would be rejected. N L.R.B. v. Anchor Rome Mills, Inc., 228 F.2d 775, 780 Respondent to commit" an 8(a)(2) violation since a "real question of representation" existed, that the unit in which representation was sought-limited to welders- was "totally inappropriate ", and that their attempts to force Respondent to grant them wage increases during the pendency of the UAW organizational campaign could be "construed as an attempt to undermine the UAW's organizational activity" in violation of Section 8(a)(1) of the Act Respondent's contentions are ingenious afterthoughts To begin with the welders sought no recognition as collective-bargaining representative, either for themselves or for others As they told Respondent, they acted independently of any union, to enhance their individual positions Secondly, as Respondent further recognizes, the granting of wage in- creases during an organizational campaign "is not per se a violation of Section 8(a)(I )," and certainly not if unmotivated by antiunion considera- tions The instant case presents a typical situation where employees, dissatisfied with working conditions, collectively seek to petition their em- ployer to rectify grievances The guarantees afforded by the Act were in no way diminished by the circumstance that the employees acted on their own rather than through a union See N L R B v Washington Aluminum Company, Inc , 370 U S 9, 14, Morrison-Knudsen Company, Inc v N L R B , 358 F 2d 411, 413 (C A 9), Guernsey-Muskingum Electric Cooperative, Inc v N L R B 285 F 2d 8, 12 (C A 6) 19 "it had been the Board's practice not to award back pay to em- ployees discriminatorily discharged while on strike during the period when they remain on strike on the theory that until it appears that the em- ployees who desire employment have given up the strike it cannot be established that the loss of pay was conclusively attributable to the em- ployer's conduct " Buzza-Cai doza, 97 NLRB 1342, 1344 GULF & WESTERN INDUSTRIES 11 (C.A. 5); Piasecki Aircraft Corporation, 280 F.2d 575, 585, 590 (C.A. 3). In such circumstances the employer's obligation to reinstate becomes effective as soon as un- conditional willingness to return to work is manifested by abandonment of the strike. Sea View Industries, Inc., 127 NLRB 1402, 1403, 1438. It is clear from the undisputed evidence that Respondent here had no intention of restor- ing or permitting any of the striking welders to return to their former positions. Indeed, applicants personally ap- plying for reinstatement to their former positions were ex- pressly so advised by Plant Manager De Young. It is reasonable to assume that this company policy became known to the two welders (Justice and Thompson) as to whom there is no evidence of personal application for em- ployment. Justice and Thompson had made common cause with welders such as Klump, Hayes, and Thomason who picketed Respondent on September 23, after Respondent's rejection of personal applications for reinstatement. In addition, Justice was on the Union's or- ganizing committee (infra). Under the circumstances, reinstatement demands by Justice and Thompson would have been futile gestures and, hence. Respondent's obligation to reinstate them became effective as soon as they manifested unconditional willingness to return to work by abandoning the picketing; i.e., September 23. Although it would appear that applications for rein- statement by the two remaining welders, Sinclair and Hause, who also failed to file personal applications, would have proved equally futile, there is no evidence that they were aware of Respondent's policy against rein- stating former strikers. Because of the absence of evidence indicating their unconditional willingness to return to work,20 Respondent's reinstatement and backpay obligation as to these two men has not yet become operative.21 B. Threats of Discharge For Wearing Union Insignia The complaint, as amended at the hearing, alleges that Harold Dawson. a supervisor and company agent, threatened employees with discharge if they persisted in wearing union (UAW) insignia in the course of their em- ployment. Respondent denies commission of the acts in question and, in addition, disavows responsibility for his conduct. 1. Respondent's responsibility for Dawson's conduct During the time material herein Dawson worked under the overall supervision of Davies, an admitted supervisor. Dawson described himself at the hearing as a "group leader." He worked on the night shift while Davies was on the day shift and was the only management representa- tive in the welding department on his shift. Although ad- mitting to be "in charge" of the night-shift welders, Dawson claimed he "couldn't make a decision of my own." He testified that Davies. whose hours overlapped the second shift, would leave him instructions for trans- mittal to other employees and that, when necessary. he could "get a hold" of Davies at home (by telephone) for further instructions. On the other hand, it is admitted that Dawson did, and could, assign work to welders on his shift, received from and discussed with employees wage increase requests, recommended and obtained wage in- creases for them.22 and attended management meetings with foremen and executives. Dawson recalled attending a meeting at which Plant Manager De Young "advised" the attendants not to talk to employees about the Union.23 It is clear that employees had regarded Daw- son as a supervisor and part of management. Based on the foregoing and the entire record, I find that Dawson had "authority, in the interest of the employer . responsibly to direct" employees under him within the meaning of Section 2(11) of the Act and, therefore, that he was a supervisor for whose conduct Respondent is accountable. See N.L.R.B. v. Edward G. Budd Manu- facturing Co., 169 F.2d 571, 575-576 (C.A. 6); Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432, 434-435 (C.A. 8); N.L.R.B. V. Syracuse Stamping Company, 208 F.2d 77. 79 (C.A. 2). "To be sure, [Dawson was] not high in the factory hierarchy and apparently did not have the power to hire or fire. But [he] did exercise general authority over the employees and [was] in a strategic position to translate to [his] subordinates the policies and desire of the management." IAM, Tool and Die Makers Lodge No. 35, [Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 80. 2. Dawson's conduct On August 1 and 25, the Union sent Respondent let- ters apprising it of the organizational drive and composi- tion on the Union's organizing committee.24 In mid-Sep- tember employees were wearing union insignia, including buttons and pen holders with the Union's name inscribed. Employee Vanderwood testified that around September 13, while at his workbench in the welding shop. Dawson, his superior, stated that "if we wore union buttons that we could be fired." Vanderwood was not wearing a union botton at the time, but "a lot of men" near him were; and employees continued to wear such buttons after the in- cident, but none was discharged for it. Martz testified to a similar incident in mid-September. Dawson told him at work "all of the bad points that he could think of" against unionization. According to Martz, Dawson said that "if the union gets in that we would have to go through a classification test and would finally wind up with less money than we were getting," adding "we could be discharged for wearing [union buttons] in the shop, and we had better keep them out of sight." Martz wore a union button at that time.25 20 For ought that appears, they may have left the area of employment or found other positions in this area more satisfactory to them. The record shows that Sinclair began to work for Bliss Company on September 27. 2' In accordance with usual practice , however, the Recommended Order herein will require Respondent to offer reinstatement to these two employees , upon request. The record does not support the allegation in the complaint (paragraph 13) that the employees who personally applied for employment did so also on behalf of all 10 employees . Insofar as it appears , each applicant made the application individually and for himself only. '22 Dawson testified, "If he [an employee] was a good worker I would put him in but that didn't mean it would go through." 23 According to Dawson, Archie Lash, an admitted supervisory em- ployee whom he described as a "group leader," also attended that meet- ing. 24 The committee included the following employees whose terminations are here in issue Hayes , Justice, Klump, Martz, and Thomason 25 Martz also described an incident in which Foreman Davies related "all of the bad points" about unionization , recounted his unfavorable ex- periences in union shops, and predicted that if the Union came in "produc- tion would speed up, and they would be on us all of the time." General Counsel adduced this testimony for background purposes only. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson similarly testified that in September Dawson told a group of employees in the welding depart- ment that "we could be fired for ... wearing the UAW literature." Thompson wore a pencilholder with the legend "Vote UAW" at the time. On direct examination Dawson in general terms denied "ever" telling "a group of employees they could get fired for wearing a union button." When asked on cross-ex- amination whether he saw union insignia around the plant, he first hedged and equivocated, but finally con- ceded seeing some. I credit the more straightforward and mutually corroborative and convincing testimony of em- ployees Vanderwood, Martz, and Thompson. The wearing of union insignia has long been recognized as a traditional and effective instrument in the conduct of organizational campaigns. See. e.g., Salant & Salant, In- corporated, 92 NLRB 417, 426. Respondent's threats to employees (through Dawson) that they could be discharged for wearing them constituted unwarranted in- terference with the right to self-organization, in violation of Section 8(a)(1) of the Act. Kimble Glass Company v. N.L.R.B., 230 F.2d 484, 485 (C.A. 6). enfg. 113 NLRB 577; N.L.R.B. v. Mayrath Company, 319 F.2d 424, 426 (C.A. 7); N.L.R.B. v. Essex Wire Corporation dlb/a Essex Corporation of California, 245 F.2d 589, 593 (C.A. 9). Cf. Caterpillar Tractor Company, a Corpora- tion v. N.L.R.B., 230 F.2d 357, 359 (C.A. 7). CONCLUSIONS OF LAW 1. By discharging 10 of its welders for engaging in pro- tected concerted activity (a strike) and by thereafter refusing to employ 8 of the 10, evidencing unconditional willingness to return to work, Respondent has interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By threatening to discharge employees for wearing union insignia in the course of their employment, Respondent violated Section 8(a)(1) of the act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend the customary cease-and-desist order and affirmative relief conven- tionally ordered in cases of this nature. Having found that Respondent violated Section 8(a)(1) of the Act by discharging 10 employees because they engaged in pro- tected concerted activities, I shall recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for said employees . However, in accordance with the Board's practice in the case of strikers who are unlawfully discharged before they are replaced, their backpay will begin to run from the date, if any, when they evidenced unconditional willingness to return to work by application or otherwise rather from the date of their discharge. Staub Cleaners Inc., 148 NLRB 278, 297. For reasons stated supra (section A, 3, b), that date will be September 21, 1966 , for William Klump, Allen E. Hayes, Darcy R. Thomason, and Frank Misak; September 23, 1966 , for Phillip Justice and Merle Thompson; September 28, 1966, for Wayne Martz; and September 29 for James Vanderwood. Since it has not been established that Bernard Hause and Raymond Sin- clair evidenced willingness to return to work, no backpay is provided for them. The backpay for the eight other ter- minated employees shall run to the date when Respon- dent has offered them reinstatement in the manner set forth herein and shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. Interest shall be added at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. Because of the nature of the unfair labor practices en- gaged in by Respondent , I deem it necessary to recom- mend that Respondent be required to cease and desist from infringing in any manner on employee rights guaran- teed by Section 7 of the Act. Although the complaint was issued against Gulf & Western Industries , Inc., as well as Electro-Chemical Finishing Company, the Recommended Order will not be directed against the former. While Electro-Chemical Finishing Company is a wholly owned subsidiary of Gulf & Western, there is no evidence of centralized managerial direction or control by one colhpany over the other and, even more significantly , evidence of centralized or com- mon labor relations policy. See M. Lowenstein & Sons, Inc., 150 NLRB 737, 738, footnote 2; Mt. Clements Pot- tery Company, 46 NLRB 714, 780-781, modified on another point 147 F.2d 262 (C.A. 6). The fact that Plant Manager De Young occasionally consulted with Wesley Gross-an officer of another subsidiary of Gulf & Western Industries , Inc., in Grand Rapids (Michigan Plating & Stamping Co.), whose superior in that com- pany, DeVries, is an officer of Gulf & Western-on operational matters and that by "coincidence" Gross happened to be in De Young's office when one of the welders (Klump) applied for reinstatement, is of no moment. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record , and pur- suant to Section 10(c) of the Act, I hereby make the fol- lowing: RECOMMENDED ORDER Electro-Chemical Finishing Company, Middleville, Michigan, its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing em- ployees in the exercise of their right to engage in con- certed activities for their mutual aid and protection, by discharging , refusing to reinstate , or by otherwise dis- criminating in regard to their hire , tenure of employment, or any term or condition of employment. (b) Threatening to discharge employees for wearing union insignia in the course of their employment. (c) Interfering in any other manner with , restraining, or coercing any employee in his right to self-organization, to form, join, or assist any labor organization , to bargain collectively through representatives of his own choosing, to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to the following 10 individuals immediate and full reinstatement to their former or substantially equivalent positions at which they would have been em- GULF & WESTERN INDUSTRIES ployed had they not been discriminated against, for en- gaging in protected concerted activity, in the manner set forth in the section of this Decision entitled "The Remedy": Bernard Hause, Allen E. Hayes, Sr., Phillip Justice, William Klump, Wayne Martz, Frank Misak, Raymond Sinclair, Darcy R. Thomason, Merle Thomp- son, and James Vanderwood. (b) Make whole the following eight individuals for any loss of wages suffered by them, in the manner set forth in The Remedy section of this Decision: Allen E. Hayes, Sr., Phillip Justice, William Klump, Wayne Martz, Frank Misak, Darcy R. Thomason, Merle Thompson, and James Vanderwood. (c) Notify the employees listed in above paragraph (a) if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (e) Post at its plant in Middleville, Michigan, copies of the attached notice marked "Appendix."26 Copies of said notice, to be furnished by the Regional Director for Re- gion 7, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.27 IT IS FURTHER RECOMMENDED that the complaint against Gulf & Western Industries, Inc., be, and it hereby is, dismissed. 26 In the 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor 13 Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to engage in concerted activities for their mutual aid and pro- tection, by discharging, refusing to reinstate, or by otherwise discriminating in regard to their hire, tenure of employment, or any term or condition of employment. WE WILL NOT threaten to discharge employees for wearing union insignia in the course of their employ- ment. WE WILL offer the following employees immediate and full reinstatement to their former or substantially equivalent positions at which they would have been employed had they not been discriminated against: Bernard Hause Allen E. Hayes, Sr. Phillip Justice William Klump Wayne Martz Frank Misak Raymond Sinclair Darcy R. Thomason Merle Thompson James Vanderwood WE WILL make whole the following individuals for any loss of wages suffered by them as provided in the section of the Trial Examiner's Decision entitled "The Remedy:" Allen E. Hayes, Sr. Frank Misak Phillip Justice Darcy R. Thomason William Klump Merle Thompson Wayne Martz James Vanderwood WE WILL NOT interfere in any other manner with, restrain, or coerce any employee in his right to self-organization, to form, join, or assist any labor or- ganization, to bargain collectively through represent- atives of his own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. Dated By ELECTRO-CHEMICAL FINISHING (Employer) (Representative) (Title) NOTE: Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act, and Universal Military Training and Service Act, as amended, after discharge 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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.