Pullman Inc.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trailmobile Division, Pullman Incorporated and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case 16-CA-2600 November 15, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On March 22, 1967, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. The Trial Ex- aminer also found that the Respondent had not en- gaged in certain other alleged unfair labor practices, and recommended that the allegations pertaining thereto be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent also filed a brief in answer to the exceptions of the General Counsel. 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, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein. 1. The Trial Examiner found that the principal cause of the strike which began September 8, 1965, and ended January 19, 1966, was the Respondent',s refusal to bargain with the Union; that the Board, in Case 16-RM-270, had certified the Union, and in Case 16-CA-2401 had found that the Respondent violated Section 8(a)(5) and (1) of the Act by refus- ing to bargain with the certified Union (156 NLRB 483); and that the strike was therefore an unfair labor practice strike. The Trial Examiner also found that the Respondent further violated Section 8(a)(5) by refusing to discuss grievances presented by Bobby Green, an officer of the Union, and by issu- ing a disciplinary warning to Green because of his attempts to present grievances and threatening further disciplinary action extending to discharge if he did not desist. Subsequent to the issuance of the Trial Ex- aminer's Decision herein, the United States Court of Appeals for the Fifth Circuit set aside the Board's Order in Case 16-CA-2401.1 Thereafter, the Board, on September 26, 1967, issued an Order Consolidating Cases and Supplemental Decision, Order, and Direction in which it vacated the certifi- cation of representatives in Case 16-RM-270, and dismissed the complaint in Case 16-CA-2401 (167 NLRB 571). In view of these circumstances, the Respondent's refusal to bargain with the Union was not unlawful, and the strike in protest thereof was not an unfair labor practice strike. Moreover, the Respondent's further refusal to bargain with the Union by refusing to entertain the grievances presented by Green as an officer of the Union, did not constitute a violation of Section 8(a)(5) of the ACt.2 On the other hand, the Board has held that`the ef- forts of an employee to present grievances, absent unusual circumstances not present here, is a con- certed activity protected by Section 7 of the Act.3 We therefore find that the Respondent, by issuing a warning to Green threatening him with disciplin- ary action extending to discharge if he did not desist from his efforts to present grievances, interfered with its employees' Section 7 rights, and therefore violated Section 8(a)(1) of the Act.4 2. The Trial Examiner found, and we agree, that Plant Superintendent Davis' conversation of March 17, 1966, with J. L. Hill, an employee who par- ticipated in the strike at the Respondent's plant, as to why he had joined the Union, and whether his friends, with whom he desired to be during the strike, paid his bills for him, was violative of Section 8(a)(1) of the Act. However, we do not agree with the Trial Examiner's further conclusions that there was insufficient evidence upon which to find that Hill was denied reinstatement to his former job because of his participation in the strike. Prior to the strike, Hill worked on the first or day shift, in department 16 as a fitter-electrician. After the strike was terminated on January 19, 1966, Hill was returned to his job and department, but was placed on the second shift. According to Hill's credited testimony, when he requested, on March 17, 1966, that Plant Superintendent Davis return him to his old job on the day shift, Davis made the coercive remarks set forth above and found viola- tive of Section 8(a)(1). Hill was finally returned to the first shift the latter part of May, but was as- signed to tire mounting work, a less desirable job. There is no contention that Hill had been replaced. ' T,ailmobde Division, Pullman Incorporated, v N.L.R B., 379 F.2d 419 (C.A. 5) 2 Accordingly, we do not adopt the Trial Examiner's Conclusions of Law3,4,or6. 3 Bowman Transportation, Inc., 134 NLRB 1419; Gibbs Corporation, 124 NLRB 1320, H. Muehlstem & Co, Inc, 118 NLRB 286. 4 See Socony Mobil Oil Company, Inc., 153 NLRB 1244, Top Notch Manufacturing Company, Inc, 145 NLRB 429, Mushroom Transporta- tion Co, Inc., 142 NLRB 1150 168 NLRB No. 31 TRAILMOBILE DIVISION, PULLMAN INC. 231 In view of these circumstances, we find that a pre- ponderance of the evidence establishes that the Respondent discriminatorily refused to reinstate Hill to his old job on the day shift because of his participation in the strike, in violation of Section 8(a)(3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Trailmobile Division, Pullman Incorporated, Longview, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees con- cerning their membership in or activities on behalf of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other labor or- ganization; or disciplining or threatening to discipline employees because they attempt to present grievances. (b) Discriminating against employees because of their activities on behalf of the above-named labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights of self-organization; to form labor or- ganizations; to join or assist the above-named or any other labor organization; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion; or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Harold Colley, Ira G. Felts, and Arthur B. Gray immediate and full reinstatement to their former or substantially equivalent positions held immediately prior to September 8, 1965, without prejudice to their seniority and other rights and privileges; and make whole Bobby Green, Harold Colley, Ira G. Felts, and Arthur B. Gray for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Trial Examiner's Deci- sion entitled "the Remedy." (b) Notify Harold Colley, Ira. G. Felts, and Arthur B. Gray, 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 the Universal Milita- ry Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all ,other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Reinstate J. L. Hammock and J. L. Hill to the positions they held immediately prior to Sep- tember 8, 1965, without prejudice to their seniority and other rights and privileges. (e) Post at its plant in Longview, Texas, copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 the Regional Director for Region 16, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, in- sofar as it alleges unfair labor practices not found herein, be, and it hereby is, dismissed. In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES This notice is posted by order of the National Labor Relations Board . After a Trial at which all sides had the opportunity to give evidence , the Na- tional Labor Relations Board found that we , Trail- mobile Division , Pullman Incorporated, violated the National Labor Relations Act, and ordered us to post this notice to inform our employees of their rights The Act gives all employees these rights: To organize themselves To form, join, or help unions To strike To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things The Board has also ordered us to assure our employees that: WE WILL NOT do anything that interferes with these rights. You are free to join the International Union, United Automobile, Aerospace 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other union , and, by majority choice, to select any union to represent you in bargaining with us. WE WILL NOT discharge you, or refuse to give you back your old job and shift, because you work for a union or because you join a union or a strike. WE WILL NOT ask you why you joined a union. The National Labor Relations Board found that we discharged certain employees and punished others by refusing to give them back their old jobs or shifts because they were for the Union and took part in the strike, and gave an employee a warning notice because he tried to present grievances to us. The Board found that this violated the Act. WE WILL therefore give Ira G. Felts, Arthur B. Gray, and Harold Colley back their old jobs, with all their seniority, and make up the pay they lost plus 6 percent interest. We have al- ready given Bobby Green his job back, and we will make up the week's pay he lost plus 6 per- cent interest, and we will take the warning notice out of his personnel file. WE WILL give J. L. Hammock and J. L. Hill the same jobs and shifts they had before the strike. TRAILMOBILE DIVISION, PULLMAN INCOR- PORATED (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, 819 Taylor Street , Federal Office Building, Fort Worth, Texas 76102 , Telephone 334-2921. TRIAL EXAMINER'S DECISION United Automobile , Aerospace and Agricultural Imple- ment Workers of America (UAW), AFL-CIO (herein called UAW or the Union), that it discriminatorily failed and refused properly to reinstate 40 other employees there after the termination of a strike , and that it other- wise interfered with, restrained , and coerced employees in the exercise of rights guaranteed in the Act. The com- plaint also alleges that , although the Union is the collec- tive-bargaining representative of the employees at the plant involved , Respondent has refused to bargain with it on matters involving terms and conditions of employment there. Respondent answered, denying the commission of any unfair labor practices , and a hearing on the issues so raised was held before Trial Examiner Sidney D. Gold- berg, at Longview , Texas, on July 19, 20, 21, and 22, 1966, at which all parties were represented , afforded an opportunity to adduce testimony , cross-examine wit- nesses, and to argue upon the facts and the law. During the hearing, the General Counsel amended the complaint to add allegations of interference and unlawful discharge, and Respondent amended its answer to deny them. Other allegations * of the complaint were withdrawn. The General Counsel moved that official notice be taken herein of two other Board proceedings involving the parties hereto and the motion was granted , with the limitations set forth below. Briefs subsequently filed by the General Counsel and by counsel for Respondent have been considered. For the reasons hereinafter set forth in detail, I find that Respondent 's discharge of employees Ira G. Felts, Arthur B . Gray, and Harold Colley was discriminatorily motivated to discourage employees from becoming or remaining members of the Union and its failure adequate- ly to reinstate J. L. Hammock was also discriminatory, but that the discharges of Norman Huffman and Danny Cargill were for cause , that the discharge of James McEl- veen was not improper and that Jimmy Brock voluntarily quit. I also find that Respondent unlawfully refused, and is refusing, to bargain with the Union , which is the cer- tified representative of the employees, and that it coer- cively interrogated J. L. Hill. Upon the entire record herein,2 and the demeanor of the witnesses , I make the following: FINDINGS OF FACT 1. THE EMPLOYER Respondent is a division of the Pullman Company and is engaged at several places, including Longview, Texas, in manufacturing motor-drawn trailers. It admits that it annually ships finished products valued at more than $50,000 from this plant to customers located in States other than the State of Texas. I find that it is engaged in commerce within the meaning of the Act. SIDNEY D. GOLDBERG, Trial Examiner: In this proceeding under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), the complaint' alleges that Trailmobile Division, Pullman In- corporated (herein called Respondent), discriminatorily discharged 8 employees at its Longview, Texas, plant to discourage their membership in International Union, I Issued April 29, 1966, on charges filed February 18 and March 2, 14, and 18, 1966 II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of the Act. 4 Respondent's posthearing motion to correct the transcript of testimony was not opposed by the General Counsel or the Charging Party and is hereby granted In addition thereto , on p. 896, I 3, the word "catalectic" is to read "cavalier," on p 886 , 1 9, the word "none" is cor- rected to read "one" and on I. 10, the word "principle" is inserted between "bargaining" and "cases " TRAILMOBILE DIVISION, PULLMAN INC. 233 III. THE UNFAIR LABOR PRACTICES A. Background and Issues 1. The Union's status A board-conducted election was held among Respond- ent's employees on September 3, 1964, which the Union won by 171 to 168, and a certification of the Union was issued on June 28, 1965.3 Respondent, contesting the validity of the certification on the basis of challenges which the Board sustained to the ballots of 14 individuals, refused to bargain and, on December 30, 1965, the Board issued its Decision and Order 4 finding that Respondent had violated Section 8(a)(5) and (1) of the Act and issuing an appropriate order. Respondent, however, refused to comply with the Board's Order and filed a petition, in the Court of Appeals for the Fifth Circuit, to review it.5 Consistent with its position in the case heretofore de- cided by the Board, Respondent admit, herein that the unit set forth in the complaint is an appropriate one and that, although requested to do so since June 28, 1965, it has refused to bargain collectively with the Union. 2. Official notice At the hearing of this proceeding, the General Counsel requested that official notice be taken of the Board's proceedings in the refusal-to-bargain case, described above, and the request was granted . The General Coun- sel also requested that official notice be taken of the proceedings in Case 16-CA-2263, in which allegations of violation of Section 8(a)(3) and (1) by Respondent were based upon a charge by the Union, arose out of in- cidents in the plant between August 1964 and February 1965, and in which Trial Examiner Stanley N . Ohlbaum had issued his Decision finding that Respondent had committed some of the unfair labor practices alleged. Since no Board decision had issued in that case at the time of the hearing herein , the request was denied " except insofar as the General Counsel could point to relevant findings by Trial Examiner Ohlbaum to which no excep- tion had been taken . Subsequent to the hearing in this proceeding , however, the Board issued its Decision and Order in that case,7 affirming the findings , conclusions, and recommendations of the Trial Examiner. Ac- cordingly, consideration will be given herein to relevant findings of fact8 in that Decision - but not to the testimony at the hearing of that proceeding.9 3. Chronology The events directly involved in this proceeding, other than the certification, occurred as follows: After the complaint proceeding before Trial Examiner Ohlbaum was heard in June and July 1965, bitterness arose between employees who testified for the General Counsel and those who testified for Respondent. On Au- gust 3, the employees on the several shifts held meetings and requested authorization from the Union to strike. This authorization was granted. On September 8, Nor- man Huffman, an employee and a member of the Union's negotiating committee at Respondent's plant, accused Jerry Marshburn, another employee, of spreading false rumors concerning him, Huffman, in connection with his activities as a member of the committee. After an exchange of words at Marshburn's work station, Huff- man slapped Marshburn. Later that day Huffman was suspended pending an investigation of the incident and the union members among Respondent's employees went out on strike. On September 10, Huffman was discharged. On November 26, employees Ira Felts, Harold Colley, A. B. Gray, and Bobby Green, who were also members of the Union's negotiating committee and on strike, were at the Horse Shoe Lounge, a beer parlor on the highway near Longview, when three nonstriking employees, Travis Higginbotham, D. G. Clark, and Gerald Cox, came in. An exchange of words, epithets, and then of blows ensued, beginning inside the place and thereafter carried outside to the parking area. On January 19, the Union notified Respondent, on be- half of the striking employees, that the strike was ter- minated and, on the following day, most of the striking employees returned to work but a substantial number of them were not immediately assigned to the jobs and shifts which they were on when the strike began. Felts, Colley, Gray, and Green, however, were instructed to report to the personnel office, where the personnel director at- tempted to question them concerning the Horse Shoe Lounge incident. When they declined to discuss the sub- ject without a witness present, they were discharged.10 Jimmy Brock, a probationary employee who joined the Union and went out on strike about October 23, was not reinstated but received a letter from Respondent stating that he had been discharged on October 27. On February 9, 1966, Danny Cargill, another proba- tionary employee who had been on strike with the others, was discharged; on February 19, employee McNeil and Foreman Blaylock exchanged remarks concerning a union pin McNeil was wearing; and on March 17, J. L. Hill was questioned by Superintendent Davis concerning his adherence to the Union. Several times subsequent to the end of the strike, Bobby Green, an officer of the Union," attempted to discuss employee grievances with plant officials. He was rebuffed each time, warned not to persist and, as a result of his continued efforts, a disciplinary warning was placed in his personnel file. 9 Case 16-RM-270 ' 156 NLRB 438 5 The case was argued before the Court February 1, 1967 6 West Point Manufacturing Company, Wellington Mill Division, 142 NLRB 1161 I60NLRB 1348 "National Electric Products Corporation, 87 NLRB 1536, Harvey Aluminum (Incorporated) and General Engineering, Inc et al, 139 NLRB 151, fn 6, set aside and remanded on other grounds 335 F 2d 749 (C.A 9, 1964) At several points in this decision I refer to a lack of evidence in the record of union animus in connection with certain conduct of Respondent In so stating I have not disregarded the Board's findings of union animus in connection with the discharge of Powers but I do not regard that finding as so pervasive of all of Respondent's labor-manage- ment relationships as to justify a presumption of union animus in every managerial decision it made. " Ward Manufacturing, Inc , 152 NLRB 1270, 1278 '" Green was reinstated the following week. " In the formal organization of the Union's local at Respondent's plant late in 1965, Huffman was elected president and Green was elected finan- cial secretary. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The issues The General Counsel contends that Respondent's discharge of Huffman on the basis of the Marshburn in- cident on September 8 and Respondent's discharge of Felts, Gray, Colley, and Green on the basis of the brawl at the Horse Shoe Lounge on September 26 constitute in- terference with, and discrimination based on, their union activities and are, therefore, violative of the Act. He also contends that the discharges of McElveen, Brock, and Cargill were in retaliation for their participation in the strike and, therefore, are also in violation of the Act. The number of employees who, the General Counsel contends, were improperly denied reinstatement to their former jobs upon the termination of the strike was reduced, during the hearing, to 14, and practically all of these were back at their original jobs at the time of the hearing. Respondent contends that, although the opera- tion of the plant precluded instantaneous reinstatement of all strikers to their former jobs and shifts, it conducted such reinstatement in good faith, completing it within a reasonable time and without loss of pay to any of the em- ployees. Respondent concedes that its refusal to permit Green to discuss employee grievances and the disciplinary warning placed in his file are part of its continuing posi- tion that the Board's certification is invalid and that the Union is not the collective-bargaining representative of its employees. It stipulated that, if the court of appeals directs enforcement of the Board's bargaining order, it will expunge the warning from Green's file. B. Discussion and Findings 1. The discharge of Norman Huffman The occurrences leading to the discharge of Norman Huffman are not significantly in dispute. Shortly after its certification in June 1965, the Union appointed, as its negotiating committee, Norman Huffman, Bobby Green, and John Williford, of the day shift, and Harold Colley, George McNeil, and Ira Felts, of the night shift. By letter dated July 28 to H. F. Whitehurst, the manager of operations at the Longview plant, the Union notified Respondent of these designations and requested that the committee members on the night shift be given time off to per- form these union duties. They were excused as requested. During the early part of September there were several brief work stoppages or "meetings" of the union members at the plant. These brief stoppages are not directly in- volved in this proceeding but remarks based on them led to occurrences that are here involved. A day or two before September 8, Huffman and Green heard that Jerry Marshburn, an employee in another part of the plant, had been telling other employees that they, ii Huffman was corroborated by Green but Marshburn omitted this exchange from his account of the conversation. In view of the testimony of several other witnesses that Marshburn took that position when they asked him not to spread the story, I credit Huffman on the point. 13 Marshburn testified that he told Huffman he had better not try it and Huffman and Green testified that Marshburn said "go ahead" several times, but I find it unnecessary to resolve the conflict 14 Huffman and Green testified that Marshburn kicked Huffman in the leg before leaving. Marshburn denied this but I find this conflict also un- Huffman and Green, were paid by the Union for the time which they lost during the work stoppages - the inference being that the members of the negotiating committee were thereby favored over the other union members who joined in such stoppages but were not so reimbursed. Early in the morning on September 8, first Green and then Huffman visited Marshburn at his work station and asked him not to make such statements because they were untrue. Marshburn denied having made the state- ments. Later that morning, after having again heard that Marshburn was spreading the same story, Huffman visited Marshburn a second time and again Marshburn denied it. At 11:50 that morning, while Huffman and Green were still on their lunch period, they went to Marshburn's work station and found him at work. Huffman accused Marsh- burn of continuing to repeat the statement and Marsh- burn, according to Huffman, said he would say whatever he pleased.12 Huffman then said he could slap Marshburn "up the side of the head." Marshburn said something to Huffman13 and Huffman slapped Marshburn on the side of his face. Marshburn bent down, admittedly in search of a steel bar in his toolbox, but then he turned away, left his work area14 and went to the desk of his foreman, some distance away, to report the incident.15 Huffman and Green returned to their department and went to work. At 2:30 that afternoon Huffman was summoned to the personnel office. He asked that he be permitted to bring Green with him as a witnesses but, when the foreman telephoned Personnel Director Bellatti and asked whether he might permit Green to accompany Huffman, Bellatti told Huffman that he was "in no position to ask favors" and directed him to come to the office without a witness. When Huffman reached the office, Bellatti asked him for his account of the Marshburn incident. Huffman declined to talk without a witness present and Bellatti left the office for a time. When he returned, he told Huffman that he was going to investigate the matter and that, until the completion of the investigation, Huffman was suspended. Huffman was permitted to obtain his personal belongings. As he did so, he informed Green of his suspension and then left the plant about 3 p.m. The following day, Bellatti testified, he interviewed several employees having knowledge of the Marshburn incident. On the same day he telegraphed Huffman, invit- ing him to be at the office the following morning, with a witness, to "present whatever facts you may wish to present." Huffman, accompanied by Ben Tyra, Interna- tional Representative of the Union, conferred the next morning with several of Respondent's officials and the in- terview ended without any statement of decision by them. Later that day, Bellatti sent Huffman a telegram notifying him that, as a result of the September 8 incident, he was discharged. The General Counsel contends that Respondent's discharge of Huffman was prompted by its desire to rid it- necessary to determine. 15 He was unable to reach the personnel office by telephone at that time but told his foreman of the incident shortly thereafter. 16 Respondent's "Policy Statement ," given to all new employees and admittedly in effect at this time, provides, under the heading "Problem Solving". ... Should you so desire, you may have another employee present while you are discussing your problem with any of the management representatives. TRAILMOBILE DIVISION, PULLMAN INC. 235 self of one of the Union's leaders and that the slapping of Marshburn was merely a pretext to cover its true motive. In support of this contention, he points to Respondent's unfair labor practices in refusing to bargain with the Union (156 NLRB 483) and in its discharge of Powers (160 NLRB 1348), as well as its failure to discharge par- ticipants in other fights. This latter contention - that Huffman was discharged for a "provoked" incident while participants in other fights were not disciplined - finds no substantial support in the record. Granted that Marshburn's union-mongering was the provocation for Huffman's assault upon him, there is no evidence that Respondent fostered, or even knowingly tolerated, Marshburn's conduct. The so-called "evidence" of other fights, in which the participants were not discharged, is lacking in substance: (i) the 1959 fight between "Tee-Hop" and Smith occurred on the em- ployees' parking lot after their working hours; (ii) the Rogers-Thompson incident - if it occurred at all (Rogers and Bill Williford denying it) - never went further than words; and Whitehurst's characterization of the Akin- Ward scuffle as friendly "horse-play" was not con- troverted. As appears from the foregoing, I can find no valid ex- cuse for Huffman's assault upon Marshburn -in the plant and during working time-and there is no evidence that Huffman was treated discriminatorily as a consequence of it. It requires no citation of authority to support the conclusion that such conduct is not protected by the Act" and I find that Huffman's discharge was for cause. 2. The strike As Huffman left the plant after his interview with Bel- latti on September 8, he told Bobby Green that he had been suspended. The shift change takes place at 3:30 p.m. and most of the men on the evening shift reported to their stations on time. Felts and Colley, however, the two members of that shift on the Union's negotiating commit- tee, lingered just inside the fence, keeping in contact with the group of employees on the day shift who, with Huff- man, Green, and International Representative Tyra, were holding a meeting across the street. This meeting con- tinued for some time, the men discussing their grievances against Respondent and resolving to support any union man treated discriminatorily by the Company. About 4 o'clock, while the meeting was still on, Plant Superintendent Davis (then general foreman of the day shift) told Felts and Colley that, since they had not re- ported within a reasonable time after the commencement of the afternoon shift, they were to leave Respondent's premises and report the following day. Felts and Colley thereupon shouted this information to the men across the street and that group, having voted unanimously to strike, instructed Felts and Colley to bring the second shift out of the plant. Despite Davis' order forbidding them from entering the plant, they went in and brought out a sub- stantial portion of the men on that shift. Pickets appeared outside the plant at 7 that evening, carrying signs which referred to Respondent's refusal to bargain. The telegram sent by the Union's attorney to the Respondent on September 10 states that the stake which began on the 8th was called in protest against Respond- ent's "unfair labor practices and particularly the refusal to bargain." While Respondent, in its brief, heads its final point with the statement: "The strike of September 8, 1965 was not an unfair labor practice stake" the body of its argument on this point states: The overwhelming preponderance of the evidence shows that certain of the Respondent's employees struck on September 8, 1965, to protest the Respondent's refusal to bargain with the Union. The General Counsel's characterization of the strike is basically the same as Respondent's, although he makes the point that it was "triggered" by the suspension of Huffman. There is no doubt, therefore, that the principal basis of the strike was Respondent's refusal to bargain with the Union, and I so find. In view of the Board's Decision, binding on me, that it was obligated to do so, it follows that the strike was an unfair labor practice strike. The force of this finding, however, is minimized in this case by the fact that Respondent, upon being informed by the Union that the strike was at an end, took immediate steps to reinstate the striking employees - with the excep- tion of Felts, Gray, Colley, Green, and Brock-to the same, or substantially equivalent, positions that they held prior to the strike. Whether this was adequately accom- plished is discussed below, but it is clear that no striking employee was denied reinstatement on the ground that he had been permanently replaced and no employee, except possibly the five named, suffered financial loss. 3. The adequacy of Respondent's reinstatement of the strikers a. The procedurefollowed The complaint names 40 strikers as having been in- adequately reinstated upon the termination of the strike. During the hearing, the General Counsel withdrew the al- legation as to 26 on the list, leaving Green , who was not initially reinstated , and 13 others to be litigated. Since Respondent's initial failure to reinstate Green was based upon the fight at the Horse Shoe Lounge , his status dur- ing the first few days will be covered in the consideration of that incident , but his subsequent reinstatement will be discussed with these others. It is important to note , at the outset , that the General Counsel raises no objection to the procedure followed by Respondent in reinstating the striking employees and that this procedure did actually return these men to work within a very brief time.18 Operations Manager Whitehurst testified, without con- tradiction, that early in the morning of the day the strike 11 The General Counsel, in citing Kohler Co., 148 NLRB 1434, and referring to p. 1444-48 in support of his argument on this point , is disin- genuous . the Board's discussion of conduct similar to that of Huffman in this case- physical attack- commences on p. 1449, and the Board found such conduct unprotected by the Act. 18 The Union's telegram ending the strike was dispatched at 4 47 p in. on January 19, a Wednesday, stating that the stake was terminated as of 10 a.m. on Thursday, the 20th By Saturday evening all the strikers (ex- cept the four involved in the Horse Shoe Lounge incident and Brock) were back at work Operations Manager Whitehurst testified , without contradiction , that Respondent had hired about 180 employees during the stake in which about the same number participated , but that none of those so hired was considered a permanent replacement for any sinker and that they were all dropped when the 163 striking employees returned . He also testified that there had been about 560 employees in the plant before the stake and that there were about 550 after it 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ended, 85 employees reported to the plant and submitted individual applications for reinstatement. The 85 men, however, delivered 149 applications and these did not contain the information needed, so Respondent prepared another form which listed, in addition to the applicant's name , address, and phone number, his classification, de- partment, shift, and foreman. These were used to restore men to available positions on the basis of seniority. He also testified that the plant's production schedule had to be geared to the number of outstanding orders and that it was necessary to start by assigning men to the building of subassemblies and then to progress by making assign- ments to other positions throughout the plant. Whitehurst further testified that all the returning employees had been assigned by Saturday afternoon; that he instructed Per- sonnel Director Bellatti to inform the men that, if their as- signment was to a shift other than the one they had been on before the strike, they would be returned to their former shifts within 30 days; and that, to the best of his knowledge, they were so returned within that time. b. The individuals affected Against the foregoing uncontradicted description of the procedure followed by Respondent in reinstating the strikers, we turn to the 14 employees whose reinstate- ment is characterized by the General Counsel as in- adequate: Chester Nix, a forklift operator, was on the first-or day-shift when he went out on strike. He was reinstated to the same job on January 20,19 but on the third shift, where he remained for 2 or 3 weeks before returning to the day shift. 20 Alfred McCormack, when the strike began, was a "trailer-fitter" in department 26, on the first shift, welding and hanging doors on trailers. After the strike, he was as- signed to the same department, still on the first shift and as a trailer-fitter, but lining and finishing trailers. He could not say that his job after reinstatement was any more difficult than before the strike but testified that he "had rather be back" where he had been. Harold McRae, a welder, before the strike, in depart- ment 26, on the first shift, welding and hanging doors, he was reinstated as a welder in department 16, on the second shift, welding "props" on flat-bed trailers. After 2 weeks on the second shift, he was returned to the first shift but still in department 16. He testified that he was in- experienced and somewhat slow at the work in depart- ment 16 and that he had been scolded and "written up" for being slow. At the time he received the "write-up," Bellatti was present and, to McRae's question when he would get "his job back," Bellatti answered: "Three weeks or three months or maybe a year, you will work where we want you." McRae conceded that the welders held seniority as a group and normally moved from place to place in the plant. He also testified that his current work was no more difficult, just "nastier and hotter." J. L. Hammock, prior to the strike, was in the main- tenance department on the first shift, repairing pneumatic and handtools at a workbench. After the strike, he was returned to the same department and shift, but assigned to repairing forklift trucks. Most of these trucks were also brought to him for repair but occasionally they broke down somewhere in the plant or outside it and he was required to go where they were. The work also occa- sionally requires the lifting of heavy parts. He testified that during the first 6 months of his employ by Respond- ent, he had worked repairing forklift trucks but that dur- ing the past 10 years he had been assigned to the repair of handtools, except for an occasional special forklift job on a Saturday. He also testified that handtool repairs were performed, after the strike, by two new men who had not done that work before the strike, since he had previously handled it alone. One of these men was trained in the work by Hammock and the other had been hired as a helper about the time the strike started. On February 8, 1966, Hammock testified, he asked his foreman, Ernie Wright, when he would be returned to repairing handtools and Wright answered that a man who would go out on strike for 3 months "shouldn't expect ... to get their old job back. `21 Clarence Young, about 7 or 9 days before the strike, had been transferred from welder to inspector in depart- ment 16. When reinstated, he was put to work as an in- spector, checking incoming freight. After 2 days, Bellatti informed him that there were too many inspectors and that, since he was the newest man on that job, he would go back to welding, which has the same pay rate. He did so for 2 or 3 weeks and was then redesignated as an in- spector. He has never complained about his assignments. Judge W. Pelham, before the strike, was a welder on the first shift in department 25. He was reinstated as a welder on the same shift in department 16 but after weld- ing for a couple of days, he was assigned to help unload boxcars and, after that, he spent about 5 hours sweeping up. For a week following this, he was assigned, with some former strikers and nonstrikers, to shifting lumber. He ad- mitted that prior to the strike, as a welder, he had been as- signed to various departments and that he had, on occa- sion, been required to clean up areas larger than those in which he worked. Philip Weldon, before the strike, was a tire mounter in department 16 on the first shift, where his foreman was Travis Higginbotham. He was reinstated to the same job but on the second shift and, after about 3 weeks, he returned to the first shift. He testified that he had requested permission to take the welder's test but had not taken it although several employees had been reclassified as welders. George McNeil, before the strike, was an inspector on the second shift in department 11. When reinstated, he was an inspector on the first shift in department 16. After a week he was returned to the second shift, but in depart- ments 21, 23, and 26, and he has never been returned to the department in which he worked prior to the strike. L. A. Turlington, prior to the strike, operated a 1 /4-inch shearing machine in department I I on the second shift. Upon reinstatement, he was assigned to operate a 3/8- inch machine on the third shift. After 30 days on the third shift, he asked Bellatti when he would be returned to his former shift. Bellatti told him to see his foreman who then transferred him to the second shift. He continued, how- ever, to operate the 3/8-inch machine, which handles material heavier than that which goes through the 1/4- inch machine but admitted that, as a fabricator, he had al- ways operated more than one type of machine. 10 There seems to have been some confusion, immaterial in this case, between January 19 and 20, but it seems clear that the men returned to work beginning on the 20th 20 Bellatti testified that Nix went back to the day shift on February 7 21 Wright did not testify TRAILMOBILE DIVISION, PULLMAN INC. 237 Edrey L. Morris, before the strike, was a welder in de- partment 16 on the first shift. He was reinstated to the same job and department, but on the second shift, and told that he would be returned to the day shift "as soon as the work force could be straightened out." He remained on the afternoon shift for 2 or 3 weeks before going back to his original shift. He testified that, although 4 or 5 wel- ders in that department who had been hired during the strike were still on the first shift while he was on the second, he could not identify the welders and he made no complaint to his supervisor. J. L. Hill, before the strike, was a fitter-electrician working in department 16 on the first shift. When rein- stated, he was returned to his job and department, but on the second shift where he remained until the latter part of May. At that time, by becoming a tire mounter, he was returned to the first shift. About the middle of March, Hill testified, he asked his foreman on the second shift, Rex Beard, when he would be returned to the day shift and that Beard said he would not; he then talked to the general superintendent, "Red" Davis. Davis' version of their conversation differed considerably, in its details, from Hill's but it seems clear that there was some reference to the strike or the Union; that Hill suggested that he was being kept on the late shift because of his par- ticipation in the strike and that Davis denied it, saying that it was a matter of pure seniority. Hill testified that Davis asked him why he had joined the Union in the first place and, when Hill said he wanted to be with his friends, Davis asked him whether his friends paid his bills for him.22 Billy Phillips, became employed by Respondent in May 1965 as a helper and, at the time the strike began, was working on the second shift in the "foam room," where he helped spray foam lining into the walls of insulated trailers. Upon reinstatement, he was assigned to depart- ment 26, on the second shift, building racks for flat-bed trailers. After about a week of this work, he was moved to the area where trailer sides were built and he worked there for about a month. He was transferred, about the end of February, to the day shift, where he spent the first 3-1/2 days helping build a railroad spur and was then as- signed to do undercoating. Thomas Allums, whose name appears in the complaint on the list of those inadequately reinstated and does not appear to have been formally stricken from it, testified on other matters but was not interrogated concerning his reinstatement. Bobby Green, before the strike, worked on the first shift in department 25, where he did mostly aluminum welding, which he characterized as "good, clean, work." When Respondent came to the conclusion, during the week following the end of the strike, that Green should not have been discharged on the basis of the Horse Shoe Lounge incident, he was reinstated to the first shift in de- partment 16, under the supervision of Foreman Travis Higginbotham, who had also been involved in that fight. Under Higginbotham, Green was first given the job of building racks to hold parts that would ultimately be used in building trailers. In this work he was required to cut, weld, and assemble heavy pieces of steel, some of them salvage, and to bring them in from storage piles outside the plant. Although he received his instructions concern- ing the fabrication of the racks from the supervisor in charge of materials handling, it was Higginbotham who kept track of his time and his work station was close to Higginbotham's desk. Higginbotham instructed him that he was not to leave his work station without permission, except to get a drink of water or go to the restroom, and that he was not to talk to anyone on company time. Green worked at this job until early in March, when he was transferred, still under Higginbotham, to other heavy work involving trailer production. On July 14, just prior to the hearing, he was transferred away from Foreman Higginbotham to a finishing job where he had a helper and which he called "a pretty decent job." c. Conclusions From the foregoing it can be seen that all of the em- ployees, with the exception of J. L. Hammock, were returned to their prestrike shifts, if not to the precise loca- tion in which they had worked, and, as noted above, none of them lost any pay. While it is true that ... the practical problems growing out of replace- ment of employees hired during the strike, and any confusion or plant inefficiencies related to the as- similation of a large number of former employees after a somewhat extended absence due to the strike are all a foreseeable "direct by-product" of the em- loyer's violation of the Act.23 even the Board's Orders directing reinstatement of unfair labor practice strikers do not require that they be carried out instanter, but traditionally provide that backpay shall commence 5 days after application for reinstatement. This is a rule of reasonableness and, granting the General Counsel's argument that the shift to which an employee is assigned is an element in determining whether one job is substantially equivalent to another, I find that it would be unreasonable not to afford an employer some flexibili- ty (if exercised in good faith) in returning reinstated em- ployees to their original shifts. Here, reinstatement to employment was accomplished in less than 3 days and, except for Hammock, most of the reinstated employees were back on their original shifts - and in generally similar jobs - within 30 days: Hill was the only one whose return to his original shift took longer, and he was back at the end of May. Moreover, again ex- cept for Hammock, there is no evidence that even these minor delays in their return to their prestrike work and shifts were attributable to Respondent's resentment against them for having engaged in the strike.24 Accordingly, I find that the foregoing employees, except Hammock, were reinstated to their same or substantially equivalent jobs, and that Respondent's conduct with respect to them was not violative of Section 8(a)(3) of the Act. Turning, now, to employee Hammock: As noted 22 Davis denied asking Hill why he had joined the Union but his testimony shows that the balance of the conversation was as Hill testified and Respondent 's reliance on Hill's pretrial statement is misplaced. This conversation is alleged by the complaint to have violated Section 8(a)(1) of the Act 23 N.L.R.B v. Trinity Valley Iron and Steel Company, 290 F 2d 47,48 (C A. 5), enfg 127 NLRB 417. 24 Although there were references to the Union and to the strike in Hill's conversation with Davis, there is insufficient evidence upon which to find that Hill was kept on the second shift because of his participation in the strike. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, he had been promoted, 10 years earlier, from fork- lift repair to the comparatively pleasant job of repairing handtools and pneumatic tools brought to him at a well- lighted and well-equipped workbench, but after the strike he was put on the more unpleasant work of forklift repair, which he had left many years earlier, and his former work was assigned to men with much less seniority. This clear discrimination, which his supervisor expressely related to his participation in the strike, constitutes conduct viola- tive of Section 8(a)(3) of the Act. 4. The discharge of Green , Felts, Colley, and Gray a. The Horse Shoe Lounge incident Despite the great volume of testimony on this matter - the seven participants having each described it in great detail - its main outlines, after the first few seconds, are not seriously in dispute. The strikers had established picket headquarters across the road from the gate into Respondent's plant. On November 26, it was manned by four of the Union's prin- cipal officials, all members of the negotiating committee: Bobby Green, secretary, A. B. Gray, vice president, Ira G. Felts and Harold Colley, both trustees. After spending a substantial portion of the day at the picket booth, the four men left around 7 p.m. and went to a beer parlor, the Pig Trail Inn, where they had a beer or two. They then went to the Horse Shoe Lounge, reaching there shortly after 8, parked their car in front of the building and sat down in the booth nearest the rear entrance, where some of them had another beer. About 8:30, when Green and Felts were sitting in the booth with their backs to the rear door, Colley was seated in the booth facing the rear door, and Gray was away, playing the jukebox or dancing, three nonstriking em- ployees of Respondent entered through the rear door. These three employees were Gerald Cox, D. G. Clark'25 and Travis Higginbotham, foreman of department 16 on the day shift. They had also had some beer, at a place called the Mardi Gras, before reaching the Horse Shoe Lounge. The three nonstrikers, Cox, first, Higginbotham, second, and Clark, third, passed the restrooms next to the rear door and approached the booth in which Colley, Green, and Felts were sitting. At this point there was an exchange of words and a series of events which I find, ac- cepting the testimony of Green, Felts, and Colley, and re- jecting that of Higginbotham and Clark, occurred as fol- lows: the three nonstrikers entered the room and paused briefly, looking for a table, then moved toward the bar; as they paused, Colley, who was facing them, said to his companions: "Here come some of our friends"; Cox walked past the booth but Higginbotham said something to the effect that he did not know they permitted "union men" in the place; Felts answered that they had as much right to be there "as you scabby sons-of-bitches." At this Higginbotham turned to face Felts and said: "You don't mean that: stand up and say it," whereupon Felts stood up and repeated his statement. Higginbotham then punched Felts in the mouth, breaking his two front teeth, and Felts grabbed Higginbotham around the neck with one arm and punched him in the body several times. At this point the proprietor arrived and pushed the two of them out the front door. Green, Colley, Clark, and Cox followed them out.26 As Felts and Higginbotham went out the door of the lounge and onto the front parking lot, the others in both parties followed closely and the fighting became more general: Green and Felts both testified that Higgin- botham was standing on the lot some distance from the door and that, as Felts headed toward him, Clark grabbed Felts' arm; Felts shook him off and then found Cox in his way; Felts bent Cox back over a car but let him go without hitting him, again heading toward Higginbotham; Green then tried to stop Felts but, when Higginbotham said "turn the son-of-a-bitch, loose, I can take him" Green stepped aside and Felts knocked Higginbotham down twice. Higginbotham then got into his car as Colley rushed over to hit him but Gray turned Colley aside and told Higginbotham to get going. Clark testified that Gray grabbed him by the shirt front and punched him in the face, kicked him when he was down and, as he arose, he was hit again, although he was not certain it was Gray who hit him the second time. Colley testified that Gray was holding Clark by the shoulder but, when Clark kicked Gray, he-Colley-hit Clark. Gray also testified that it was Colley who hit Clark. Higginbotham testified that he was outside when Felts came out the door shouting insults; that he offered to beat Felts again when Green gave him a shove and told him to go on out of there; that he was doing so when Colley came out from behind Felts and gave him another shove, whereupon he got into his car and, as it started, someone punched him in the jaw through the open window. As he started away in the car, he testified, he found Clark in the back seat, his face all bloody, so he took him back to the Mardi Gras where Clark picked up his own car, while Higginbotham drove home. Cox testified that, as he reached the outside, Felts called him "a goddamned scab" and Green told him to get out of there, but that nobody hit him. It is, fortunately, unnecessary that I make detailed findings concerning this nighttime brawl outside a 25 Clark had been a member of the Union and went out on strike with the others but resigned from the Union and returned to work on Sep- tember 19 26 Cox testified that he had passed the booth and did not hear any of the conversation or see any of the action but that his attention was attracted by the sounds of a scuffle behind him. Clark's testimony was that, as they entered the room and without preliminaries , Felts attacked Higginbotham, calling him "a son-of-a-bitch" as he did so. Higginbotham testified that, as he entered the room, Felts, Green, and Colley all said "hello, you god- damed scabs" but he tried to pass it off by saying "hello, men", that Felts repeated the epithet and he asked Felts what he meant; that thereupon Felts started to swing at him with both hands, knocked his left arm aside and hit him in the jaw, whereupon he hit Felts, knocking him backwards and, when Felts rushed again , he hit him again. Clark, although his testimony agreed with Higginbotham's that Felts struck the first blow, also testified that he heard the phrase "scabby sons-of-bitches " Ac- cordingly, I am convinced that Higginbotham changed the epithet actually used by Felts to a milder one, more bearable under his code of honor, in order to support his story that Felts hit him first This untruth, as well as his demeanor while testifying, and the disappearance of the statements of Higginbotham, Clark, and Cox given to Respondent and discussed in detail below, lead me to reject Higginbotham's testimony. Higginbotham's testimony, that there was a considerable verbal exchange before the fighting began, discredits Clark's testimony that Felts attacked without any preliminary exchange of words. Accordingly, I conclude that the testimony of Green, Felts, and Colley accurately reflects the incident in- side the Horse Shoe Lounge TRAILMOBILE DIVISION , PULLMAN INC. highway beer parlor as it is practically impossible to do so. However, I can and do find that the insults that were hurled and the blows, offensive and defensive , that were struck were clearly a continuation of the fight that started inside the place over the verbal exchange between Felts and Higginbotham and Higginbotham's attack on Felts. Although Clark claimed to have been severely beaten, he admitted that he did not require any medical attention, his wife took his broken dental plate to be repaired and he lost no time from work . Higginbotham , whether he downed Felts , as he testified , or Felts downed him, as Felts and Green testified , also lost no time from work. After Green, Felts, Colley, and Gray left the Horse Shoe Lounge , they visited a friend but, since he had com- pany , they soon left. They stopped , however, at a package store where Felts bought a half-pint of whiskey and drank it "at one time " and the others bought a six- pack of beer. They drove around awhile and then found it necessary to relieve themselves of some of the liquid they had accumulated during the evening . They decided that for this purpose they would drive down a country road, appropriately named Smelly Road , where Clark lived. They did so, passing his house and proceeding some distance further. As they were carrying out the function that had brought them there , Clark backed his car out of the driveway and turned it, headlights on, toward the four men ; when he did so, they got back into Colley's car and backed it toward Clark's; whereupon Clark drove back into his driveway and they left. Clark testified that, as they passed , Felts again called him "a scabby son-of-a-bitch" and said they would be back the next night.27 The four•men then drove around a bit more , includhing a brief stop at the Horse Shoe Lounge in an attempt to find Felts' glasses , and they then returned to the Pig Trail Inn for a short while : those who had left their cars there picked them up, and they all went home. The nonstriking group retired to the Mardi Gras and then to their homes. There were no criminal charges filed by members of either group against any of the others. The following week , however , Higginbotham reported the in- cident to Personnel Director Bellatti at the plant. b. Respondent's investigation When the Union terminated its strike , the striking em- ployees submitted individual applications for reinstate- ment. Green , Felts, Colley , and Gray submitted applica- tions with the others but, instead of being called back to work, they were notified to appear at the personnel office on January 21. Each of the four reported as directed. Personnel Director Bellatti , with John Rozner , Respondent's vice president for industrial relations , and a secretary at his side , asked each of the men for his version of what had occurred at the Horse Shoe Lounge on November 26. Each of the men stated that he had come to discuss rein- statement and Bellatti admitted that each of them declined to talk about the Horse Shoe Lounge incident unless permitted to have a witness present in accordance with the provisions of the policy statement. Rozner told Green that if he did not "cooperate," Respondent would have a "legal reason " to fire him. 239 Green answered that he would consider himself fired until he heard otherwise and left the plant. On January 26 Green was notified to return to work and he was rein- stated, as discussed above , as of the 27th. When Felts reported to Bellatti 's office , he was asked also about the Horse Shoe Lounge incident . He answered that he had come about his job and that, without a wit- ness, he would not talk about the Horse Shoe Lounge matter. Rozner told him that it did concern his job but Felts stated that he had been told by his union representa- tive that he was entitled to have union representation or a witness with him before he would talk about the in- cident. Rozner said Felts would have to talk about it if he wanted to go back to work and Felts answered that he had 17 witnesses who were at the Horse Shoe Lounge but that he would not supply the names of those witnesses or talk about the incident unless he had a witness present. He then asked Bellatti if that was all he was called in for: Bellatti said it was and Felts left. On January24 he received a telegram from Bellatti stating that , as a result of the investigation , he was discharged. When Colley reported to Bellatti's office he found there only Bellatti and his secretary , who was taking down everything said. When Bellatti asked what had happened at the Horse Shoe Lounge , Colley said he had come in only to see about going back to work. Bellatti answered that it depended on what he learned of the "assault" at the Horse Shoe Lounge but Colley replied that he would make no statement on that subject without "representa- tion or legal counsel." Bellatti then exhibited three typewritten documents which , he said , were the state- ments of Clark, Cox, and Higginbotham. Bellatti said that Clark had said, in his statement, that Colley had pulled a knife on Higginbotham and had cut him. This Colley de- nied , saying he had not pulled a knife on November 26 or at any other time . Colley again asked whether he was to go to work and Bellatti said it depended on what he had to say about the incident. Colley told Bellatti to get in touch with Ben Tyra, the union representative , or the Union's attorneys and he left . He was notified of his discharge by telegram on the 24th. Gray was also interviewed by Bellatti and Rozner, with Bellatti's secretary taking down the conversation. Bellatti asked him for a statement concerning the incident at the Horse Shoe Lounge but Gray answered that he had come about his job and would not make any statement regard- ing the other matter. Gray was also notified by telegram of his discharge. Bellatti testified that his investigation of the Horse Shoe Lounge incident consisted of his conversations with Green, Felts, Colley, Gray, Higginbotham , Clark, and Cox, the latter three having given him statements, and subsequent consultation with Whitehurst and Rozner. He gave , as Respondent's reason for discharging Felts, that Felts had assaulted a supervisor , Higginbotham; as the reason for discharging Colley, that he had kicked Clark when he was down on the parking lot and because he had followed Clark to his home ; as the reason for discharging Gray that Gray had struck Clark to make him stop work- ing behind the picket line. Bellatti conceded that he did not give any of these four employees an opportunity to discuss the matter with him with a witness present as provided in the policy statement 27 Gray and Colley both testified that nothing was said as they drove away. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but could not give a reason for his action nor could he distinguish between the Huffman interview, at which he permitted Tyra to be present, and these four interviews. He testified that he could not give any more details con- cerning the investigation without refreshing his recollec- tion from the statements he took from Higginbotham, Clark, and Cox but he had given those statements to Respondent's counsel and counsel, at the hearing, refused to permit Bellatti to look at them. Higginbotham, Clark, and Cox each testified that he had been given a copy of his statement by Bellatti but each of them testified that he had lost or destroyed his copy. c. Conclusions Respondent's position, with respect to the discharge of Green, Colley, Felts, and Gray, as stated at the hearing, was that these four men, " union adherents, strikers .. . attacked Supervisor Higginbotham and employee Clark in an attempt to force them to quit work and join the strike." Although Respondent, in its brief, makes several additional arguments, they are all related to the same defense. Accordingly, notwithstanding Respondent's conclusionary statement in its brief that ". . . the strikers were [not] engaged in any form of protected activity . ... and the General Counsel's statement that the fight at the Horse Shoe Lounge was "purely and simply a spontaneous barroom brawl," I concur with Respondent in its position and I find that the strike was as much the reason for the fight as if it had occurred at or near the picket line.28 The first verbal exchange, consisting of Hig- ginbotham's questioning the right of "union men" to be in the place and Felts' reply that union men had as much right to be there as "you scabby sons-of-bitches" fixes the issue as one involving the right of the union men to be union men without penalty and the right of the non- strikers to continue to work without being called offen- sive names. Even Higginbotham's testimony concerning the opening exchange of insults, which I have rejected as formulated to support his version of the ensuing physical clash, makes it clear that the only conflict between them was participation or nonparticipation in the strike.29 The escalation of the conflict from words to blows was, I have found, initiated by Higginbotham when he struck Felts in the mouth and broke his teeth. The additional fighting in the parking lot, involving Felts, Colley, and, possibly, Gray, on the Union side and Higginbotham and Clark on the nonunion side, was, I find, simply a con- tinuation of the violence which Higginbotham began in- side the lounge30 and the injuries to Clark flowed from the Felts-Higginbotham bout rather than from any separate, deliberate assault on Clark. It follows from the foregoing, and I find, that Green, Felts, Colley, and Gray were not guilty of misconduct in this incident. The connection between the strike and the altercation was assumed by Bellatti as the basic reason for Respond- ent's discharge of the four union men for "trying to prevent Mr. Clark from pursuing gainful employment," whereas no disciplinary action was taken against Daryl Fife, another striker, growing out of the fight he had with Steve Whiteside, a nonstriker. When questioned by Bel- latti, Fife told him that there had been prior personal en- mity between him and Whiteside and Bellatti testified that no action was taken against Fife because his investigation showed that the fight was not "work-related." Inasmuch as the incident relied on by Respondent as justification for the discharge of these four men was known by it to be connected with protected activity - conduct of the strike - the applicable rule is that set forth by the Board in Burnup and Sims, Inc. ,81 and Respond- ent's discharge of employees for alleged misconduct vio- lates Section 8(a)(1) of the Act if the employees were not, in fact, guilty of the misconduct. The complaint alleges that the discharge of these employees was violative of Section 8(a)(1) of the Act and, since I find that they were not, in fact, guilty of the misconduct charged against them,32 Respondent thereby violated Section 8(a)(1) of the Act. Even under the former, less stringent rule which required only a reasonable belief that the discharged em- ployees were guilty of the alleged misconduct, Respond- ent could not justify these discharges. For from making the "painstaking" investigation its counsel claims for it in his brief, Bellatti's arbitrary refusal to accord the four men the right to a witness guaranteed them in Respond- ent's own "Policy Statement" discloses his preference not to hear their version of the incident, since it became apparent to him in the first interview that the men would %" In Burnup and Sims, Inc, 137 NLRB 766, 772, affil 379 U S 21, the protected activity involved occurred at the home of an employee 29 There is no substantive evidence in the record that there was any separate enmity involving any of the men which would otherwise account for the clash Clark did testify that Felts, as he attacked Higginbotham, said. "You son-of-a-bitch, you are the one I want," but Clark was at first not certain of the language used and I cannot draw any inference of previ- ous enmity from these words , even if they were used 30 When Felts went after Higginbotham in the parking lot it was, I find, his "hot pursuit" of the man who had struck the first blow Moreover, both Felts and Green testified that when Green sought to restrain Felts, it was Higginbotham who said "turn the son-of-a-bitch loose, I can take him " While there might have been several points at which the fighting could have been stopped , there is no evidence that it was actually stopped and then renewed . Accordingly I find it to have been a single altercation for which Higginbotham was responsible. 31 137 NLRB 766, 771-773, approved by the Supreme Court at 379 U S 21 Under the facts of this case, I do not believe that Plastic Applica- tors, Inc, 150 NNLRB 123, enforcement denied in part 369 F.2d 495 (C A 5), is applicable 31 The final conclusion of the Texas Employment Commission in the proceeding prosecuted by A B Gray for unemployment benefits, in- troduced by Respondent, was that there was not sufficient evidence in the record to warrant a finding that the claimant was guilty of physically assaulting any of the non-strikers It did, however, conclude that the claimant embarked on a course of action, in concert with his fellow strikers, to threaten and intimidate an employee of the plant who had declined to join the union in its efforts to shut down the em- ployer's plant. My conclusions agree with those of the Commission insofar as they hold that there is not sufficient evidence that Gray assaulted any of the non- strikers as I have found that any physical damage suffered by Clark was the result of Higginbotham's attack on Felts and , as a corollary, that whoever hit Clark did not do so with the intent of injuring him necessary to constitute an assault I also agree with the Commission that the incident had its basis in the strike but I find that the fighting did not arise out of any effort by the union men to "threaten and intimidate" anyone to join the strike On the contrary, I find that it arose out of Higginbotham's aggres- sion, first by words and then by blows, against the union men because of their union activity TRAILMOBILE DIVISION, PULLMAN INC. 241 not give their versions of the incident without such witness.33 In view of Respondent's violation of its own procedures in its investigation of the fight at the Horse Shoe Lounge which resulted, as could be easily foreseen, in the lack of any union man's version of the incident and in view of Respondent's failure to produce the evidence upon which it did rely in discharging the four union men34 I conclude that Respondent had, in fact, no justification for discharging them but used the incident as a pretext to get rid of three of the most active union adherents and of- ficials. A clear distinction between Respondent's conduct here and its treatment of the participants in the Fife- Whiteside fight at the Shamrock Lounge-also between a striker and a nonstriker triggered by the epithet "son-of- a-bitch" applied to the strikers, but in which the striker held no position in the Union-after which no one was discharged, supports this conclusion. Accordingly, I find that Respondent's discharge of Green, Colley, Felts, and Gray constituted discrimination to discourage their mem- bership in, and activities on behalf of, the Union and that it violated Section 8(a)(3) of the Act. 5. Respondent's refusal to reinstate Jimmy Brock Jimmy Brock entered Respondent's employ during the last part of August 1965, as an assembly helper. He testified on direct examination that he joined the Union on October 25 and, the same day, joined the strike by calling Bellatti on the telephone, giving his name -and clock number, and telling him that he was going out on strike with his friends. Bellatti said "What?" and Brock hung up. On cross-examination, however, Brock admitted that the last day he worked at the plant was Thursday, Oc- tober 21, on the afternoon shift and that, on the 22nd, he telephoned in that he was sick and would not report for work that day. The company records show that Brock called in at 3:15 p.m. on the 22nd, said he had a cold and would be in on Monday. Bellatti denied having received the call from Brock announcing his adherence to the strike. When the strike ended, Brock submitted a request for reinstatement but received, instead of Respondent's rein- statement form, a letter stating that he had been discharged on October 27 for an unsatisfactory proba- tionary period and for having been absent 3 consecutive days. The General Counsel concedes that Brock's discharge "might be valid had not his absence been occasioned by his participation in an unfair labor practice strike." Since it cannot be seriously denied that the strike was an unfair labor practice strike,35 Brock could not lawfully have been discharged for his absence if such absence had been, in fact, because of his participation in the strike. Had Brock ceased working on September 8, with the others, there would have been a valid presumption that he had joined in the strike. The unusual series of events sur- rounding his cessation of work, however, requires analy- sis to determine whether he did, in fact, join the strike be- fore he had been absent without explanation for 3 con- secutive days. If I were to accept Brock's testimony con- cerning his telephone call to Bellatti on October 25, that would put an end to my inquiry: but other evidence not in dispute casts doubt upon its reliability. Kenneth Downs, who worked with Brock at the plant, testified without contradiction that early in October, in the plant, Brock said to him: "Guess what? I got drafted: it looks like I am going to have to quit to go to the Army." Downs testified that he thought this occurred on Wed- nesday and that Brock worked Thursday and Friday, after which he did not see him at the plant. He also testified that he saw Brock about 2 weeks later at a road- side stand and asked him why he had not gone and Brock answered that his mother "got him off." On cross-ex- amination by the General Counsel, Downs testified that Brock did not at that later meeting say that he had quit to join the Army but neither did the General Counsel or counsel for the Union ask him whether Brock made any reference to being on strike. On November 1, Brock sent a friend, Gary Gibbs, to pick up his check for accrued wages and gave him a signed form authorizing Respondent to release the check to Gibbs. The uncontradicted testimony of Gibbs shows that, while Brock told him that the reason why he (Brock) wanted him to pick up the check was to avoid crossing the picket line, the message Brock asked him to deliver to the Company was that he (Brock) expected to be drafted and was "planning to join the service." Gibbs testified that he delivered that message to Bellatti and Bellatti testified that he received it and made the notation "military ser- vice" on the authorization form. Brock was not an official of the Union and there is nothing in the record to justify an inference that Bellatti lied or that Respondent tam- pered with its files to support an otherwise unjustifiable action against him Accordingly, I find that Brock did not notify Respondent that he had joined the strike but that, by sending word that he was about to enter the armed ser- vices, Brock chose to permit the Company' s normal process of separation after 3 days ' unexplained absence to take effect.'t6 To the extent that the complaint alleges a violation of Section 8(a)(3) and (1) of the Act with JY In investigating the Huffman-Marshburn incident, Respondent was careful to arrange an interview at which Huffman might have a witness present Bellatti testified that the vanation in procedure between per- mitting Huffman to have a witness and denying the same nght to Green, Colley, Felts, and Gray "never crossed my mind " This is incredible and I find that the refusal to permit witnesses was a deliberate determination not to hear these other versions of the incident The only evidence before Bellatti and Rozner, therefore, on this matter were the statements of Hig- ginbotham, Clark, and Cox These statements, however, were never produced in this case because each of the men, although admitting that he had been given a copy, did not "know where it is" (Higginbotham and Clark) or "threw it away" (Cox) and Respondent's copies, although in the possession of its counsel at the heanng, were refused production upon request Moreover, even when Bellatti testified that he could not recall details without looking at the statements which were in counsel's posses- sion, Respondent's counsel flatly refused to hand over what he called his "trial file " From this willful withholding of relevant evidence I infer that the substance thereof would not support but would contradict Respond- ent's contentions concerning responsibility for the incident a' The recall and reinstatement of Green 3 days later is also unex- plained except by Bellatti's conclusionary testimony that Green " didn't participate in the action " 15 Respondent's argument in its bnef that the strike was not an unfair labor practice strike is reduced to an absurdity by its statement that* The overwhelming preponderance of the evidence shows that certain of Respondent 's employees struck on September 8, 1965 , to protest the Respondent 's refusal to bargain with the Union. since, as stated above, the Board has certified the Union as the collective- bargaining representative of Respondent's employees 16 In view of this finding, it is unnecessary to discuss Brock's "un- satisfactory" probationary employment 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to Respondent's discharge of and failure to rein- state Jimmy Brock, it should be dismissed. 6. The discharge of James McElveen James McElveen was employed by Respondent in May 1965. He was one of a class of employees designated "full-time students" who, although they work every day when employed, are considered temporary employees. They do not participate in insurance, retirement, holiday, or vacation benefits and do not acquire any type of seniority. Of the 31 students in Respondent's employ at the beginning of the strike, about 25 worked throughout the strike period. McElveen was one of the six who struck. He and two of the other students who went out, applied for reinstatement and they were reinstated. On January 22, however, when the employees returning from the strike were assigned to jobs, all 31 student employees were laid off.Operations Manager Whitehurst testified that on several occasions in the past, when large orders were completed, the work force was stripped of all stu- dent employees. He testified, from company records, that this had occurred between March 31 and April 15, 1964, when 9 were let go and between February 15 and March 15, 1963, when 30 were let go. His layoff of the students on January 22, he testified, was based upon his estimate of production needs and his desire to keep any regular employee from being laid off. Whitehurst's testimony was not contradicted in any way and the record contains no evidence indicating that McElveen was treated in a discriminatory manner. Ac- cordingly, this allegation of the complaint should be dismissed. 7. The discharge of Danny Cargill Danny Cargill was graduated from high school in May 1965 and, after a period of time on a construction-demoli- tion job, he began working for Respondent during the first part of August. He was classified as an assembly helper and assigned to department 23, where his foreman was James A. Pittman. On September 8, when the strike started, Cargill was at work and Pittman asked him to work 4 hours overtime that night. After consenting to do so, Cargill testified, he learned about the picket line and told Pittman he did not want to work overtime, whereupon Pittman said he would talk with Cargill's uncle, Bill Williford, another foreman. The next day Cargill did not report for work and his un- cle, Bill Williford, stopped at his home to ask him why he was not at work. He testified that, when he told his uncle he was on strike, Williford advised him to go back because it would not get him anything if he stayed out. Cargill thanked his uncle for getting him the job but said he would not go back "until the picket was down."37 When the strike was terminated, Cargill was reinstated with the others and, for a week, assigned to department 25 under Foreman William D. Chamblee. At the end of the week he was assigned to department 21, the flooring department, under Foreman Ocie C. Gunn where he remained until discharged on February 9. The General Counsel contends that the poststrike discharge of Cargill was one of Respondent's "sub- sequent acts of random discrimination" and that, although Cargill's three foremen all testified that Cargill was an unsatisfactory employee, "no valid reason existed for the discharge of Cargill." Cargill testified that prior to his discharge no one had ever expressed dissatisfaction with his work. Foreman Pittman, however, testified that in August he talked to Cargill twice about getting on with his work and not wast- ing his own and other employees' time by talking38 and, on the third occasion when he found it necessary to talk to Cargill about his work, he gave him a "verbal warn- ing," i.e., a file notation that the employee had been orally reprimanded.39 Foreman Chamblee, for whom Cargill worked im- mediately after the end of the strike, testified that he noted that Cargill worked only when he was being watched but that he did not talk to Cargill about it because he knew that he was going to transfer Cargill out of his shift at the first opportunity, and that he did so. When Cargill's first rating date came up, 45 days after hiring, a rating sheet was delivered to Foreman Gunn, in whose flooring department Cargill was then working, although on the second shift. Gunn testified that, although he actively covered the first shift, it was custo- mary for him to remain on duty for a time at the beginning of the second shift to see that the men and work there were properly lined up; that on each of the 9 days that Cargill worked in his department he stayed to watch his work. At the end of that period, and after talking with Pittman and Chamblee, Gunn gave Cargill a rating of "unsatisfactory" on "quantity of output," "knowledge of job," "adaptability," and "thoroughness" and a rating of "needs improvement" on his "care of workspace and equipment," "quality of output," "willingness to follow instructions," "cooperation with supervision," "at- tendance," and "general attitude." Only in his attention to safety did Cargill meet the minimum requirements. Gunn certified that Cargill was "not qualified." On February 9, when Cargill reported for work about 3 p.m., Gunn told him that his work had not been satisfactory; that he stood around and talked too much; that he did not seem to be interested in the work or learn- ing it; and Respondent would have to let him go. Cargill, according to Gunn, laughed and said he did not care. Car- gill was not called to rebut any of this testimony. The record does not support the General Counsel's contentions of discrimination against Cargill. He was reinstated with all the other regular employees when the 31 This conversation is alleged in the complaint as a violation of Section 8(a)(I). In view of the relationship of the participants , the place where it occurred, and the mildness of its content , I cannot find that it transcends a mere expression of opinion by Williford. Accordingly, it will be recom- mended that the allegation be dismissed 38 The other employee involved in the second incident was a man named Bonnette who, according to Pittman, complained that Cargill was not doing a proper job of "bucking ," i e , backing, while he, Bonnette, was driving rivets The General Counsel , on rebuttal , called Bonnette, who could not remember anything about the incident and had no recollection of Cargill as a person. I do not view Bonnette's lack of recollection as vitiating Pittman's testimony. 3s This file memo is dated August 26 and states: VERBAL WARNING-On August 26, 1965, I talked to Mr Cargil concerning his work , and I told him he would have to make im- mediate improvement in his workmanship and quantity of work or he would be discharged Isl James Pittman, Supervisor's signature TRAILMOBILE DIVISION, PULLMAN INC. 243 strike ended and Respondent appears to have followed normal procedures for determining the desirability of probationary employees. Moreover, the record does not support the omnipresent union animus ascribed to Respondent by the General Counsel. I shall recommend that this allegation of the complaint be dismissed. 8: Blaylock's attempt to remove a union button The complaint alleges that on February 21, Foreman "Red" Blaylock "attempted to forcibly remove a union pin from the shirt of an employee." George McNeil, a member of the Union's negotiating committee and an inspector on the second shift, testified that about 4:10 p.m. on that date he met Blaylock outside the department where he was working. Blaylock put his finger under the UAW pin McNeil was wearing and flicked it upwards. McNeil asked Blaylock whether he wanted a union button and Blaylock answered that he did not need one. Nothing in the testimony of either McNeil or Blaylock justifies an inference that this casual gesture could have had any coercive effect on McNeil. It appears to me to be de mimmis and I shall recommend that this allegation of the complaint be dismissed. 10. Coercive interrogation of Hill The conversation between J. L. Hill and General Su- perintendent Davis on March 17 when Hill came in to discuss his return to his prestrike shift has been discussed above. Although I have held that there is insufficient evidence to find that Hill was discriminatorily kept on the second shift because of his participation in the strike, Davis' statements in this conversation, under the circum- stances, were, I find, coercive and Respondent thereby violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY 9. The refusal to bargain Several times between the end of the strike and July, Bobby Green spoke with several foremen and with "Red" Davis, the plant general superintendent, about various grievances brought to him by men in the plant. The foremen and Davis refused to discuss the problems with Green and told him that any employee who had a problem could come and discuss it with management. They also told Green that disciplinary problems would be discussed only with the employees involved and they warned Green that if he persisted in trying to talk about other employees' problems he would be disciplined. After being so warned on July 6, Green called Davis' attention to the failure to follow the Policy Statement in giving welder tests. Davis said the matter had been taken care of and no prompting from Green was required. The follow- ing day, Davis prepared a "written warning," noting Green's prior attempts to discuss matters that did not in- volve him, and threatening further disciplinary action ex- tending to discharge if he did not desist. A copy of the warning was given to Green. Respondent does not dispute that this refusal to discuss problems with Green was and is an outgrowth of its posi- tion that the Board's certification of the Union is invalid. Its counsel stated on the record that if the Board's bar- gaining order, based upon the certification, should be en- forced by the court of appeals, it will bargain with the Union as required by the Act and will expunge the writ- ten warning from Green's file. Under these circumstances there is no doubt that Respondent has refused to bargain with the certified Union and has thereby violated Section 8(a)(5) of the Act.40 40 The complaint also alleges that Respondent , by denying Huffman a witness at the interview of September 8, "unilaterally changed the exist- ing rules concerning personnel policies " In view of the fact that Huffman was given another interview on the same matter, with a witness present, Having found that Respondent has engaged in unfair labor practices violative of the Act, I shall recommend that it cease and desist therefrom and take certain affirm- ative action effectuate the policies of the Act. Having found that Respondent discriminatorily discharged Bobby Green, Ira G. Felts, Arthur B. Gray, and Harold Colley and that it subsequently reinstated Bobby Green, I shall recommend that it offer said Felts, Gray, and Colley immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make whole the said Green, Felts, Gray, and Colley for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of reinstatement, less his net earnings during said period. Such backpay shall be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest thereon at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent discriminatorily refused to reinstate J. L. Hammock to his former position, although said position continues to exist, I shall recom- mend that it do so. Having found that Respondent has failed and refused to bargain collectively with the Union and has disciplined Bobby Green, an officer of the Union, by inserting a warning in his file for having endeavored so to bargain, I shall recommend that Respondent cease and desist from refusing to bargain with the Union and that it expunge the said warning from Green's file. on September 10, it cannot be said that Respondent "changed" the rules, although it might have violated them on September 8 and in its handling of the Horse Shoe Lounge incident 336-845 0 - 70 - 17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of Respondent's violations of the Act found by the Board in prior decisions, and the nature of the viola- tions found herein , which go the heart of the Act, I shall recommend that Respondent cease and desist from inter- fering in any manner with employees ' exercise of rights guaranteed in the Act. CONCLUSIONS OF LAW 1. Trailmobile Division, Pullman Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union , United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The said labor organization has been duly certified by the Board as the collective-bargaining representative for the said Employer's employees in the unit described as follows: All production and maintenance employees em- ployed at its plant in Gregg County, Texas, exclud- ing office employees, plant clerical employees, technical employees , timekeepers, guards and watchmen , office porters, experimental employees, trainees, superintendents , assistant superintendents, general foreman , foremen and other supervisory em- ployees with the authority to hire, promote, discharge , discipline or otherwise affect changes in the status of employees or effectively recommend such action , and all other employees. 4. The said employer has, since June 28, 1965, refused to bargain with the said labor organization as the collective-bargaining representative of its employees in the said certified unit. 5. By discriminatorily discharging Bobby Green, Ira G. Felts, Arthur B . Gray, and Harold Colley, and by refusing to reinstate the said Felts , Gray, and Colley, to their former positions to discourage their membership in the said labor organization, the said employer has en- gaged in unfair labor practices within the meaning of Sec- tion 8 (a)(3) and ( 1) of the Act. 6. The strike conducted by the said labor organization and some of the employees of the said employer between September 8, 1965, and January 20, 1966 , was caused and prolonged by said employer's unfair labor practices. 7. By discriminatorily refusing to reinstate J. L. Ham- mock to his former position to discourage his membership in the said labor organization, the said employer has en- gaged in an unfair labor practice within the meaning of Section 8 (a)(3) of the Act. 8. By coercively interrogating J . L. Hill concerning his membership in the said labor organization, and suggesting that he withdraw from it , the said employer has engaged in an unfair labor practice within the meaning of Section 8(a)(l) of the Act. 9. By the commission of the aforesaid unfair labor practices , the said employer has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. [Recommended Order omitted from publication. ]