Maxville Stone Co.

888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maxville Stone Company and District No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 9-CA-4007 July 28, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN ANDJENKINS On May 3, 1967, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled case, finding that the 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 certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, only the Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National 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. 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 or- ders that the Respondent. Maxville Stone Com- pany, Logan, Ohio, its officers, agents, successors. and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION ABRAHAM H . MALLER, Trial Examiner : On August 10, 1966 , District No. 28 of the International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, herein called the Union , filed a charge against Maxville Stone Company , herein called the Respondent On Au- gust 23, 1966 , the Union filed an amended charge. Upon said charges , the Regional Director for Region 9 of the National Labor Relations Board, herein called the Board, on October 4, 1966 , issued on behalf of the General Counsel a complaint against the Respondent , alleging 166 NLRB No. 105 violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer, Respondent denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at Lancaster, Ohio, on December 6 and 7, 1966. The General Counsel, the Respondent, and the Charging Party were represented and were afforded full opportuni- ty to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by the General Counsel and the Respondent Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation, operates a stone quarry and is engaged in the business of crushing stone at Logan, Ohio. During the year preceding the filing of the complaint, which is a representative period, Respondent, in the course and conduct of its business operations, processed and sold within the State of Ohio, products valued in excess of $50,000 to F. H. Brewer Company and Engle Construction Company, each of whom, during this same period, received in excess of $50,000 for ser- vices performed in the construction of Federal and State highways within the State of Ohio. Accordingly, I find and conclude that Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. I1. THE LABOR ORGANIZATION INVOLVED Distract No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5). Ili. THE ISSUES 1. Whether the Respondent interfered with, restrained, or coerced its employees in the exercise of rights guaranteed them in Section 7, in violation of Sec- tion 8(a)(1) of the Act. 2. Whether the Respondent refused to recognize and bargain with the Union, in violation of Section 8(a)(5) of the Act. 3. Whether the Respondent discriminatorily discharged seven employees because of their membership in and activities on behalf of the Union, in violation of Section 8(a)(3) of the Act. IV THE UNFAIR LABOR PRACTICES A. Background Respondent operates a stone quarry near Logan, Ohio. Wilbur E. Engle is president and controlling stockholder. Engle also operates the Engle Construction Company which is engaged in highway construction. The latter company has a contract with the Operating Engineers. MAXVILLE STONE COMPANY During May and June 1966,1 Respondent employed 10 production employees , exclusive of the superintendent and office boy. Prior to May, these employees were not organized. B. Sequence of Events Sometime prior to May 26, Respondent's production employees met with Robert Sullivan, Respondent's su- pervisor, and asked for a raise in pay. Superintendent Sul- livan replied that he could not grant a raise, himself, and that the next time he saw Engle, he would speak to him about it. The employees told him that "we were going to stick together on it, and, that we would have to have one." Sullivan replied that they "had better not do anything drastic because he would venture to say he could replace us all in one day."2 Later, Sullivan advised the employees that Engle said that he could not give them a raise. In the latter part of May, the Union began an or- ganizing campaign among Respondent's employees. On May 26, all 10 of Respondent's production employees signed cards designating the Union as their bargaining representative.3 On June 10, Victor Hostetter, business representative of the Union, together with International Representative Robert Blockson, appeared at the office of Engle Con- struction Company at McArthur, Ohio, and called upon Engle. They told Engle that the Union had a majority of Respondent's employees signed up on authorization cards and they wanted to represent them in collective bar- gaining. Engle replied: "I don't know what to do, this is new." Hostetter then said : "Well, we have your em- ployees signed up on these authorization cards and that we would feel free to call in a Rabbi, a Priest or some im- partial party to check these cards to make sure they are authentic and-that they are employees of Maxville Stone Company." Engle replied that he did not want to do that. He added: "I would like to think about it and I will let you know." On June 13, Hostetter telephoned Engle and asked him whether he had taken the matter under consideration. Engle replied that he needed more time. On June 20, Hostetter again telephoned Engle, offered to submit the authorization cards for a card check by an impartial party, suggested that Engle had had sufficient time to think about the matter and secure legal counsel, and told him that the Union was ready and willing to sit down and negotiate wages and conditions of employment. Engle replied that he did not think that the people needed a union at his quarry. On June 30, Hostetter again telephoned Engle and asked him to recognize the Union. I All of the events detailed herein occurred during 1966 2 The credited testimony of employee Lloyd Rafferty, corroborated by employee Dale Swyers Both impressed me as honest , straightforward witnesses 3 The authorization cards read as follows YES, I WANT THE IAM I, the undersigned, an employee of) Maxville Stone Co. hereby authorize the International Association of Machinists and Aerospace Workers (IAM) to act as my collective bargaining agent with the company for wages, hours and working conditions. It is my un- derstanding that I will be invited tojoin the IAM 4 The foregoing account of the conversatio.is -between Engle and Hostetter is based upon the testimony of Hostetter who impressed me as a credible witness. Engle testified that beginning with the first telephone conversation he told Hostetter that he "was not going to do anything until they held an election." Based upon my observation of Engle 's demeanor while testifying, I do not credit his testimony. 889 Engle replied: "No, sir, I am not recognizing you as the collective bargaining agent for Maxville Stone, for the employees at Maxville Stone." Hostetter again offered to submit the cards for an impartial check, and again Engle rejected the suggestion. On July 5, Hostetter made a final telephone call to Engle and again offered to submit the authorizations for a card check and again requested bar- gaining. Engle replied: "I do not need any union down there." In this conversation, Engle for the first time "said something about having an election." Hostetter told Engle that the Union had held a meeting and was going to strike for recognition. Engle replied, "This is your privilege."4 In the meantime on or about June 20, Engle addressed the employees in the shale house while they were eating dinner. Most of the employees were present. Engle told them that Hostetter and Blockson had been in to talk to him about a union, "that a union would ruin us. . . that he had no idea how far it had gone but, he advised us to stop it, drop it." Engle also told the employees that he could not give them a raise at that time "but later on he would see if he could." On June 24, Supervisor Sullivan approached em- ployees Lloyd Rafferty and Dale Swyers who were on top of a crusher. Sullivan asked Rafferty to get down and then told him that "Mr. Engle was not signing any union agreement yet, the first one that goes on strike will be fired." Rafferty asked Sullivan why he was telling him that, and Sullivan replied, "You know why."5 On July 5, Respondent's employees met and voted to strike, and on July 6, set up a picket line. That evening, as Superintendent Sullivan was leaving the plant, he stopped and talked to the pickets. He admittedly told them that "if they did not return, report to work by 7 o'clock the fol- lowing day, I would fire each one of them." At the time there were five employees on the picket line. Employee Paul Hoover drove up in his truck at this time, and Su- perintendent Sullivan told him the same thing and asked him to pass it on to his friends. On July 7, Superintendent Sullivan came to the picket line again and asked employee Charles Blosser: "Blosser, are you going back to work?" Blosser said, "No." Sul- livan then said, "You are fired." The same question was put to Rafferty and the other employees on the picket line (Eldon Dexter, Kenneth Thompson, and Paul Hoover), individually. In each case, Sullivan received a negative answer and told the employees individually that they were fired. When we got through the line, Superintendent Sullivan told the employees that "he hated to do that but, he had his orders." That afternoon, Superintendent Sul- livan again approached the picket line and gave each of 5 The credited testimony of Rafferty. Superintendent Sullivan who also impressed me as a credible witness denied telling Rafferty that the Com- pany would never sign an agreement with the Union , but did admit telling Rafferty "that any man that walked off the job would be fired." Superin- tendent Sullivan also admitted telling employee Swyers that "the Com- pany was too small for a union. And, I did not feel that Mr Engle would run it under the Union." On gross-examination , he admitted telling Swyers that he "did not think" that Engle was going to sign a contract. Sullivan also admitted that on or about June 24, there were several rumors about a possible strike. Thus, Superintendent Sullivan corroborated Raf- ferty's testimony regarding the threat to fire any man who walked off the job' As to whether the statement regarding Engle's refusal to sign a con- tract with the Union or operating the Company under a union was made to Raffert or Swyers is unimportant The effect of the statement is the same in either event 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the pickets a letter, saying that the letter was "for a pur- pose." The letters dated July 7 were signed by Engle and read as follows' You are hereby notified to report for work, Friday morning, July 8, 1966 at 7:00 A.M. If you do not report for work. you will be replaced by a new employee.6 Superintendent Sullivan testified that he delivered a letter to each of the strikers personally, except in the case of Swyers who was not at home when Sullivan called to deliver the letter, and that he gave it to Swyers' daughter. On July 8, Engle approached Blosser on the picket line and told him that "if the Union got in he would have to sell, he would not operate under the Union." Engle also approached Hoover on the picket line the same day and told him that "he would not operate under a Union. He would sell the place before they could afford to operate under the Union."7 Picketing ended on August 1, after the issuance of a State Court injunction and a contempt order against the pickets. Under date of August 5, Hostetter sent a re- gistered letter to Respondent , again requesting recogni- tion and bargaining, and offering to prove majority status by a card check. The letter was received by Respondent on August 6. Under date of October 5, Hostetter wrote the Respond- ent, making an unconditional offer to return to work on behalf of employees Eldon S. Dexter, Lloyd D. Rafferty, Dale L. Swyers, Charles H. Blosser, Paul D. Hoover, James E. Stimmel, and Kenneth E. Thompson. The letter was sent by certified mail and was received by the Respondent on October 6. On the same day, the em- ployees individually wrote the Respondent also uncondi- tionally offering to return to work. These letters were ap- parently mailed at a later date, as the return receipts show that they were received by Respondent on October 13. Under date of November 2, Respondent sent a letter by certified mail to each of the foregoing employees, which letter reads as follows: Please be advised that we have received your uncon- ditional offer to return to work on October 17, 1966. We hereby accept your unconditional offer to return to work and instruct you to report on or before Mon- day, November 7, 1966 at the company office.8 None of the employees returned to work C. Concluding Findings 1. As to interference, restraint , and coercion It is patent from the foregoing recital that the Respond- ent interfered with, restrained , and coerced its em- 6 The foregoing is based upon the credited testimony of Rafferty, cor- roborated by Blosser, Hoover, and Superintendent Sullivan. himself Y The foregoing is based upon the credited testimony of Blosser and Hoover who impressed me as credible witnesses Engle admitted talking to strikers on July 8, but denied saying that he would not recognize the Union 1 do not credit his denial 9 Employee Dexter refused to accept delivery of Respondent's letter 9 Although this incident is not specifically pleaded in the complaint, the matter was fully litigated and is therefore appropriate for decision Willard Bronze Company, 148 NLRB 1686, 1690, Granada Mills, inc , 143 NLRB 957, 958 ployees in the exercise of rights guaranteed them in Sec- tion 7 of the Act, and I so find. Superintendent Sullivan's statement to the employees, when they told him that they were going to "stick together" on the matter of a requested raise, that they should not do anything drastic because he could replace them in one day constituted restraint and coercion against their engaging in concerted activities for their mutual aid or protection." Similarly, restraint and coercion are the effect of Superintendent Sullivan's statement to the employees on June 24 that he did not think that Engle was going to sign an agreement and that the first employee who went on strike would be fired. Again, Superintendent Sullivan's statement to the strikers on July 6 that "if they did not ... report to work .. the following day, I would fire each of them" was an attempt to coerce them into giving up their strike, a con- certed activity And Engle's statements to employees Blosser and Hoover on July 8 that he would not operate under the Union and that if the Union got in he would sell were obvious threats. In sum, I find and conclude that the foregoing conduct of the Respondent was independently violative of Section 8(a)(1) of the Act. 11 2. As to the refusal to bargain a. The appropriate unit and the Union's majority Respondent employed 10 production and maintenance employees, exclusive of the supervisor and the office boy. On May 26, the Union had received authorization cards from all 10 of these employees. Respondent contends, however, that these 10 employees did not constitute a majority because Respondent during the winters of 1964 and 1965 brought in dirt-moving equipment and em- ployees of Engle Construction Company (normally used in the latter's road building operations) to remove the top layer of dirt that covered the stone in the quarry. Re- spondent contends that these employees should be con- sidered members of the appropriate unit, and since they allegedly total 16 to 18, the Union did not have a majority. This contention was made for the first time at the hear- ing. It was not made at any time when the Union requested bargaining and recognition. Nor is it supported by the record. The employees which Respondent seeks to include in the unit are members of and are represented by the Operating Engineers, with whom Engle Construction Company has a collective-bargaining contract. When they work for Respondent, they are apparently put on Respondent's payroll, but they perform their duties (limited to the removal of top dirt) under their own foreman and are not subject to the orders of Superinten- dent Sullivan. Engle exaggerated the length of time that these men worked for Respondent. He testified that they worked a period of 2 to 3 months at a time Superintendent Sul- 10 Respondent points to the fact that Engle Construction Company, the other concern which Engle controls , is unionized and has never been in- volved in any antiunion activities , and argues that this circumstance merits consideration in determining whether Respondent engaged in un- lawful activity in the instant case However, these considerations cannot prevail over the clear and convincing evidence of overt acts of inter- ference, restraint, and coercion detailed above It may well be that despite his relationship with a union in his operations of the Engle Construction Company, or indeed because of it, he preferred to have the Respondent remain unorganized Willard Bronze Company, 148 NLRB 1686, 1691, Cook Paint & Varnish Company, 129 NLRB 427, 435 MAXVILLE STONE COMPANY 891 livan, however, testified that they worked 3 weeks to a month. As indicated above, I found Sullivan to be a credi- ble witness, while I do not so consider Engle. Ac- cordingly, I find that the employees of Engle Construc- tion Company worked only 3 weeks to a month each year. Although Engle testified that some 16 to 18 Engle Con- struction Company employees worked for the Respond- ent, he admitted that only 10 worked for Respondent in 1965 and 8 in 1964. Nor did they all work steadily during that time. According to the credited testimony of em- ployee Rafferty and Superintendent Sullivan, no more than six Engle Construction Company employees worked at the quarry at any one time. It is clear from Engle's testimony that Engle Construc- tion Company's equipment and employees are called in only in winter when there is no road work to be done. Thus, although Engle testified that he "was in a bind" at the time of the hearing because dirt-moving equipment and work was necessary at the quarry, Engle Construc- tion Company's road crew and dirt-moving equipment had not been called in to do the work. In view of all the foregoing, I find and conclude that all the production and maintenance employees at Respond- ent's quarry, excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, constitute an appropriate unit for collective bar- gaining, and that the employees of Engle Construction Company used by Respondent are casual employees hav- ing no community of interest with Respondent's regular employees and are not members of that unit. Cf. J. R. Simplot Co., Food Processing Division, 130 NLRB 272, 275, fn. 9; F. W. Woolworth Company, 119 NLRB 480, 484; Great Atlantic and Pacific Tea Company, 116 NLRB 1463, 1467. 1 further find and conclude that the Union represented a majority of the employees of an ap- propriate unit at all times when it requested recognition and bargaining. b. Respondent's alleged doubt as to the Union's majority In his conversation with Hostetter regarding recogni- tion and bargaining. Engle never expressed any doubt as to the Union's majority and did not even suggest an elec- tion until the fourth conversation on July 7. Instead, Engle took the position that neither he nor his employees needed a union and that he would not recognize the Union or bargain with it. Consistent with this attitude, Engle told the employees on June 20 that "a union would ruir, us" and advised them to drop it, and on June 24, Su- perintendent Sullivan told the employees that Engle would not sign a contract with the Union. And further proof of Respondent's awareness of the Union's majority is found in the fact that all of Respondent's production employees went out on strike the day after the Union threatened to strike if the Respondent refused to recog- nize and bargain with it. In its recent decision in Aaron Brothers Company of California, 158 NLRB 1077, the Board clarified its earli- er decision in John P. Serpa, Inc., 155 NLRB 99, and made it clear that: Whether an employer is acting in good or bad faith in questioning the union's majority is a determination which of necessity must be made in the light of all the relevant facts of the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct. Where a company has engaged in substan- tial unfair labor practices calculated to dissipate union support, the Board, with the Court's approval, has concluded that employer insistence on an elec- tion was not motivated by a good-faith doubt of the union's majority, but rather by a rejection of the col- lective-bargaining principle or by a desire to gain time within which to undermine the union. However, this does not mean that any employer conduct found violative of Section 8(a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding. For instance, where an employer's unfair labor practices are not of such a character as to reflect a purpose to evade an obliga- tion to bargain, the Board will not draw an inference of bad faith. On the other hand, an employer's bad faith may also be demonstrated by a course of conduct which does not constitute an unfair labor practice. And in its more recent decision in H & W Construction Company, Inc., 161 NLRB 852, the Board emphasized that "evidence of other unlawful conduct is not a sine qua non" to a finding of the absence of a good-faith doubt of the Union's majority. Regardless of which test is applied in the instant case, it must be concluded that Respondent did not have a good-faith doubt as to the Union's majority. First, as noted above, the Respondent did not challenge the Union's claim of a majority, but rejected the requests for recognition and bargaining by flatly taking the position that it did not want a union." Second, it did not ask for an election until the fourth time that the Union requested recognition and bargaining.' 2 Third, it made no effort to resolve any alleged doubt whether the Union had a majority.'3 Fourth, when all of its employees struck, it had convincing evidence of the Union's majority, but nevertheless persisted in its refusal to recognize the Union." These circumstances in themselves demonstrate a course of conduct inconsistent with any doubt as to the Union's majority, sufficient under the principle of Aaron Bros. to warrant a finding of an unlawful refusal to bar- gain. But the matter need not rest there For the Respond- ent, as previously noted engaged in unfair labor prac- tices calculated to dissipate union support, as evidenced by Superintendent Sullivan's threat that any employee who struck would be fired; by Respondent's letter threatening replacement if the strikers did not return to work the next day; and by Engle's statements to em- ployees Blosser and Hoover that he would sell the busi- ness before he would operate under a union. Cf. Blade- Tribune Publishing Company, 161 N LRB i 512. In view of all the foregoing, I find and conclude that Respondent did not have a good-faith doubt as to the Union's majority and its refusal to recognize and bargain " KayAllen Classics, Inc 152 NLRB 1250, 1255-56 12 Cf VinyflexCorporation, 160 N LR B 1883 " N.L R.B. v. Inter-City Advertising Co, 190 F 2d 420. 421 (C A 4), cent denied 342 U.S 908 , Kay Allen Classics, Inc , supra , at 1251 11 N L R B v Harris-Woodson Co, Inc , 179 F.2d 720, 723(C.A 4) 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union was violative of Section 8(a)(5) of the Act.15 3. As to the alleged discharges As noted above, Superintendent Sullivan came to the picket line on July 7 and asked each striker individually whether he was going to return to work. Upon receiving a negative answer, Sullivan fired each of them. Had the matter ended there, Respondent would have been guilty of violating Section 8(a)(3) of the Act. However, that af- ternoon Sullivan again approached the pickets and gave each of the strikers a letter which notified him to report for work the following morning and added that if he did not report for work he would be replaced by a new em- ployee. Respondent contends that by this letter it neutral- ized Sullivan's act in firing the strikers.16 Whether the Respondent actually discharged the strikers is a question of fact which is to be determined by the actual conduct of the employer. The matter is fully discussed in Crookston Times Printing Company, 125 NLRB 304,317: The Board has often concluded that in strike situa- tions employers go through the motions and state that they are terminating or discharging the strikers for the purpose of breaking the strike or dissuading the employees from striking but without meaning to refuse reinstatement when requested by the em- ployees. Under this type of tactical discharge there is customarily found to be a violation of Section 8(a)(1) of the Act since the employer has interfered with the exercise by the employees of their rights under Section 7; however, the determination of whether or not there has been an actual discharge and a violation of Section 8(a)(3) is dependent upon the particular facts and whether the employer refuses to reinstate the strikers upon request and the reason therefor. poration, 116 NLRB 140, where the employer thereafter refused to reemploy four strikers who subsequently ap- plied for reinstatement; and Associated Wholesale Grocery of Dallas, Inc., 119 NLRB 41, enforcement de- nied 262 F.2d 281 (C.A. 5), where the Board held that the employer "made it plain that any employee who did not return by August 29 would be reemployed only upon written application, thus creating an inference, not present in Kerrigan, that a new employment relation would be established for those who returned after the deadline date" (Id. at 42). Accordingly, I recommend that the complaint be dismissed insofar as it alleges a violation of Section 8(a)(3) of the Act. Although Respondent's letter of July 7 had the effect of vitiating Superintendent Sullivan's act in firing the strikers, it was, in itself, violative of Section 8(a)(1) of the Act. Since the strike was an unfair labor practice strike, the strikers could not be legally replaced, and therefore Respondent's threat to do so was an interference with their right to strike and, as such, violative of Section 8(a)(1) of the Act. Reed & Prince Manufacturing Com- pany, 96 NLRB 850, 859-860, enfd. 205 F.2d 131 (C.A. 1), cert. denied 346 U.S. 887; Rice Lake Creamery Com- pany, 131 NLRB 1270, 1292, enfd. 302 F.2d 908 (C.A. D.C.), cert. denied 371 U.S. 827; Concrete Haulers, Inc., 106 NLRB 690, 693, enfd. 212 F.2d 477 (C.A. 5). Ac- cordingly, I find and conclude that Respondent thereby violated Section 8(a)(1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the business operations of Respondent set forth 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 com- merce and the free flow thereof. By its letter of July 7, the Respondent made it clear that it was receding from the position taken when Su- perintendent Sullivan told the men that they were fired, and that it still considered the strikers to be employees. And Respondent's subsequent conduct confirmed this at- titude. Thus, employee Wyskiver returned to work on July 18, and on August 5 employee Nixon returned to work, Both were reinstated without incident. Further- more, neither the Charging Party nor the strikers con- sidered the strikers to have been fired. Thus, both the Charging Party and the strikers, individually, made un- conditional offers to return to work. And on November 2, Respondent somewhat belatedly accepted the uncondi- tional offers to return to work and instructed each of them to report to work on November 7. However, as previ- ously noted, none of the seven men reported for work. In view of the foregoing, I find and conclude that the strikers were not discharged on July 7. Kerrigan Iron Works, Inc., 108 NLRB 933, 935, enfd. sub nom. Shop- men's Local Union No. 733 v. N.L.R.B., 219 F.2d 874 (C.A. 6), cert. denied 350 U.S. 835; Crookston Times Printing Company, supra, Compare: Knight Morley Cor- To the extent that Respondent's contention may be construed as in- dicating a doubt as to the appropriateness of the unit (because of the ex- clusion of the employees of Engle Construction Company), it is well set- tled that "a good-faith but erroneous doubt as to the appropriateness of VI. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and de- sist therefrom and that it be ordered to bargain collective- ly with the Union, upon request. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge its employees if they en- gage in concerted activity for their mutual aid or protec- tion, (b) Threatening to replace any employee who engages in an unfair labor practice strike. the unit is not a defense to an otherwise meritorious charge of a refusal to bargain" (Southland Paint Company, Inc., 156 NLRB 22, 23). See also Owego Street Supermarkets, Inc , 159 NLRB 1735. 16 The General Counsel's beef does not address itself to this issue MAXVILLE STONE COMPANY (c) Threatening to go out of business if a majority of the employees selects District No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of its em- ployees, to represent them. (d) Refusing, upon request, to bargain collectively with District No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all the employees in the fol- lowing appropriate unit: All production and maintenance employees at Re- spondent's quarry located near Logan, Ohio, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with District No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Logan quarry office copies of the at- tached notice marked -Appendix."' Copies of said notice, to be furnished by the Regional Director for Re- gion 9, after being duly signed by an authorized represen- tative of the Respondent, shall be posted by the Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.' 8 I FURTHER RECOMMEND that the complaint herein be dismissed insofar as it alleges violations of Section 8(a)(3) of the Act. II 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 " iH In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES 893 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 Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT threaten to discharge our employees if they engage in concerted activity for their mutual aid or protection. WE WILL NOT threaten to replace any employee who engages in an unfair labor practice strike. WE WILL NOT threaten to go out of business if a majority of our employees selects Distract No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of our employees, to represent them. WE WILL NOT refuse, upon request, to bargain col- lectively with District No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all the employees in the following appropriate unit: All production and maintenance employees at our quarry located near Logan, Ohio, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their right to self-organization, to form, join, or assist any labor orgarvzation, tc bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such ac- tivities, except to the extent that such right is af- fected by the proviso to Section 8(a)(3) of the Act. WE WILL, upon request, bargain collectively with District No. 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization. MAXVILLE STONE COMPANY Employer Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407 Federal Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686.