Pennsylvania Glass Sand Corp.

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania Glass Sand Corp. and General Team- sters and Allied Workers Local Union No. 992, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 5-CA-3792 June 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 20, 1967, Trial Examiner Jose- phine H. Klein issued her Decision in the above-en- titled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that the complaint be dismissed with respect to those allegations. Thereafter, the General Counsel filed exceptions and supporting memoranda; the Respondent filed exceptions and a supporting brief; and the Charging Party filed cross- exceptions and a supporting brief. Subsequently, the General Counsel and the Respondent filed an- swering briefs; the Respondent filed a motion to strike and a supplemental brief; and the Charging Party filed an additional brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, memoranda, and motions, and the entire record in the case, and hereby adopts the findings,' conclu- sions, and recommendations of the Trial Ex- aminer 2 as modified herein. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)( I) of the Act by widespread and systematic interrogation, creating the impression of surveillance, threatening reprisals, threatening discharge, threatening and as- saulting pickets, promising benefits, and announc- ing and effectuating a wage increase as part of a program of undermining the Union and influencing a possible second election. The Trial Examiner also found, and we agree, that the strike, which began on April 17, 1967, was economic at its inception, but was converted to an unfair labor practice strike by the Respondent's announcement of a wage in- crease on April 21 and its hiring of replacements at higher rates than it paid its employees prior to the strike, and, further, that the Respondent violated Section 8(a)(3) of the Act by refusing to reinstate the strikers upon their unconditional application.' The Trial Examiner also found, and we agree, that of the 38 strikers alleged in the complaint to have been discriminated against, the Respondent unlawfully refused to reinstate 36 upon their un- conditional request, and accordingly recommended that they be reinstated and made whole. The Trial Examiner further found that the remaining two strikers, Victor McCoy and Richard F. Young, had been reinstated, and therefore recommended dismissal of the complaint as to them. Although McCoy and Young were reinstated, the record does not show that they were reinstated to substantially equivalent jobs. We therefore find merit in the con- tentions of the General Counsel and the Charging Party that these two strikers are entitled to the same remedial order as the other strikers. Ac- cordingly, we shall amend the Trial Examiner's Recommended Order to include them.' ' The Trial Examiner 's Decision , apparently inadvertently, refers to Roscoe Johnson as Richard Johnson (section 11, B, I ), to Jack Hiles as Jack Hale (section 11, B, 2, c), and to testimony on cross-examination of Respon- dent Vice President Andrews as direct testimony (fn. 25 and text). The Decision is hereby corrected in these respects ' The Respondent excepts to the Trial Examiner's credibility resolutions, and charges the Trial Examiner with bias and prejudice It is the Board's established policy, however , not to overrule a Trial Examiner 's resolutions as to credibility unless, as is not the case here , the preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) We find no sup- port in the record for the charge of bias and prejudice 3In view of our adoption of the Trial Examiner's conclusion that the strike was converted to an unfair labor practice strike before any replace- ments were hired , and our conclusion that in consequence all strikers are entitled to reinstatement , we deem it unnecessary to, and do not, pass on or adopt her further conclusions in section 11, C, 3, a and b, of her Decision, that the strikers would be entitled to reinstatement even if the strike had remained purely economic. ' The Trial Examiner's Decision , in fn 48 , states that no provision is being made for reinstatement of strikers to "substantially equivalent" posi- tions because the Respondent maintained at the hearing that strike replace- ments were working in the positions formerly held by the strikers. We see no reason , however, for departing in this case from our usual reinstatement provisions We therefore hereby amend the Trial Examiner's recom- mended remedy to provide for reinstatement of strikers to their former or substantially equivalent positions , and we shall amend the order ac- cordingly The Respondent , in a supplemental brief, has advised the Board that it has executed a collective-bargaining contract with the Union It urges that, in view of this fact and the fact that the complaint does not allege a viola- tion of Section 8(a)(5), the bargaining order recommended by the Trial Examiner should be rejected by the Board We find, however, that these facts do not obviate the appropriateness of a bargaining order in this case. R. W. Inc, d/b/a K-Mart Foods, 170 NLRB 716 172 NLRB No. 54 PENNSYLVANIA GLASS SAND CORP. 515 AMENDED CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record in this case , we hereby adopt the Conclusions of Law of the Trial Examiner, ex- cept as modified below: Change the number 36 in Conclusion of Law 4 to 38. Substitute the following for Conclusion of Law 5: "The complaint is dismissed insofar as it alleges other unfair labor practices not specifically found herein." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Pennsylvania Glass Sand Corp., Berkeley Springs, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Insert the following as paragraph 1(e) and re- letter the present paragraph 1(e) as 1(f): "(e) Discouraging membership in General Teamsters and Allied Workers Local Union No. 992, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization of its em- ployees, by discriminatorily refusing to reinstate, or in any other manner discriminating against, any em- ployee in regard to his hire, tenure, or any term or condition of employment." 2. Insert in paragraph 2(a) the phrase "or sub- stantially equivalent" between the words "former" and "positions." 3. Insert the following as paragraph 2(c) and re- letter succeeding paragraphs as 2(o), (e), (f), and (g):"(c) Notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces." 4. Substitute the following for the final para- graph of the Recommended Order: "The complaint is dismissed insofar as it alleges violations other than those herein specifically found." 5. Add the names Victor McCoy and Richard F. Young to the names listed in Appendix A below the date May 15, 1967, and to the list of employees in Appendix B. 6. Insert the following as the first indented para- graph in the notice: WE WILL NOT coercively interrogate employees concerning their union activities; 7. Substitute the following for the sixth indented paragraph in the notice: WE WILL offer the following named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination practices against them, with interest thereon at 6 percent per annum: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: This proceeding was heard in Berkeley Springs, West Virginia, on July 18 through 21 and 24 through 27, 1967,1 on a complaint issued against Pennsylvania Glass Sand Corp., Respondent, on May 25 (and amended at the hearing) pursuant to charges filed by General Teamsters and Allied Workers Local Union No. 992, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America (hereafter referred to as the Union, Local 992, or the Teamsters) on May 3 and 17. The complaint alleges that Respondent com- mitted numerous acts of interference with the rights of its employees under Section 7 of the Act' between December 22, 1966, when the Union filed its petition for certification as the collective-bar- gaining agent for the production and maintenance employees at Respondent's Berkeley Springs facili- ty, and May 1, when, during a strike, a supervisor assaulted or threatened pickets with a company truck at the Berkeley Springs plant. Respondent presents no defense to most of the allegations of in- terference with employees' rights before April 17, when the strike began. Respondent's sole defense to other alleged violations during that period is a claim that the person committing the acts in question was not a supervisor or agent for the Com- pany. The major issues to be determined arise out of a strike which began on April 17. The complaint al- leges violations of Section 8(a)(1) in connection with the strike. The General Counsel contends that the strike was an unfair labor practice strike from Unless otherwise stated, all dates herein are in 1967 2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U S C Sec 151, et seq. ) 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its inception, or, alternatively, that it was converted to an unfair labor practice strike on April 21, when Respondent announced an across-the-board wage increase of 14 cents per hour for all of its produc- tion and maintenance employees at Berkeley Springs. Accordingly, the General Counsel main- tains that Respondent's subsequent refusal to rein- state 38 strikers, on their request, was violative of Section 8(a)(3). Respondent, on the other hand, contends that the strike was at all times an economic strike and that all the employees involved were permanently replaced before they sought reinstatement. Respon- dent also maintains that several of the strikers in- volved did not properly seek reinstatement. Helpful briefs have been filed on behalf of the General Counsel, the Union, and Respondent. Upon the entire record,3 observation of the demeanor of the witnesses, and consideration of the briefs, the Trial Examiner makes the following: _ FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS A. The complaint alleges, the answer admits, and the Examiner finds that Respondent is a Pennsylvania corporation with an office and place of business near Berkeley Springs, West Virginia, where is is engaged in mining and processing sand and related materials. During the past 12 months, a representative period, Respondent shipped products valued in excess of $50,000 from its Berkeley Springs plant to points outside West Vir- ginia. Respondent is, and at all material times has been, an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. B. The complaint alleges, Respondent admits, and the Examiner finds that the Union is a labor or- ganization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. background and Chronology Respondent, which quarries, processes, and sells silica sand for use in the production of glass, has 14 or 15 production facilities in various locations in the United States from the east coast states as far west as Texas. For the purposes of the present case, which involves Respondent's facility at Berkeley Springs, West Virginia, it is necessary to refer to its Hatfield and Keystone plants in Pennsylvania, and its Bausman plant in Newport, New Jersey. For many years, Respondent's production and main- tenance employees at the Pennsylvania facilities have been -epresented by Locals 27 and 77, respec- tively, of the Glass Bottle Blowers Association, AFL-CIO (GBBA). The production and main- tenance employees at the New Jersey installation have for some time been represented by Local 676 of the Teamsters. GBBA Local 197 represents the construction and repair employees at the Pennsyl- vania plants and at the Berkeley Springs facility. See Pennsylvania Glass Sand Corp., 102 NLRB 5594. In the fall of 1966 Teamsters Local 992 con- ducted a campaign to organize the production and maintenance workers at Berkeley Springs.5 On December 22, 1966, Local 992 filed a representa- tion petition. Before the election Respondent en- gaged in an active antiunion campaign. The Union won the ensuing election, which was held on March 3. On March 10, Respondent filed four objections to the conduct of the election. On April 14 the Re- gional Director issued his report , recommending that a hearing be held on one of Respondent's ob- jections and that the remainder be dismissed. Ex- ceptions to that decision were then filed with the Board by Respondent and the Union. Meanwhile, in March, negotiations were being conducted for new contracts at the Respondent's Pennsylvania facilities, where existing contracts were due to expire on March 31. Those negotia- tions were unsuccessful and the employees went out on strike, totally closing the plants, on April 1. The construction and repair employees at Berkeley Springs, represented by the GBBA Local 197, did not strike at that time. On April 17 the GBBA sent pickets from Pennsylvania to the Berkeley Springs facility. The Berkeley Springs construction and repair em- ployees, 30 to 35 in number, then walked out. The production and maintenance employees did not im- mediately honor the GBBA picket line. On April 17, Respondent obtained a state court injunction limiting the number of pickets and enjoining violence. As is fully discussed below, on April 16 Respon- dent informed the production and maintenance em- ployees at Berkeley Springs that a picket line was expected to appear the next day. Respondent's representatives also said that Respondent intended to continue operating and that any employee who did not report for work would be placing his job in jeopardy. On the evening of April 17 Respondent 9 By motion , the General Counsel has requested some 43 corrections of the transcript In its brief, Respondent requests a few other corrections. Without opposition , these requests are granted The Examiner also notes that there are numerous additional errors throughout the transcript Because of the number and the fact that most of them are obvious on the the face and do not affect the substance of any critical issue , no formal ac- tion is here being taken to correct them On occasion in the course of this Decision , the Examiner has taken the liberty of correcting obvious errors when quoting from the record 4 Some of Respondent 's other facilities are also unionized Respondent's general manager for operations testified that the Company has had bar- gaining relations with the following unions GBBA , United Stone Clay & Allied Products Workers, Steel Workers, Laborers & Hod Carriers, Operating Engineers , Teamsters s In 1953 another union had made an unsuccessful campaign , involving a strike, to organize these workers. PENNSYLVANIA GLASS SAND CORP. 517 issued a press release (also discussed in detail below ) reciting the securing of an injunction and asserting that any employees who absented them- selves would be deemed to have given up their jobs and authorized the Company to replace them. On the afternoon of April 17 Harold Miller, busi- ness agent for Teamsters Local 992, after in- vestigating the matter, advised its members that the GBBA strike and picketing were lawful and requested the Teamsters members to honor the picket line . Thereupon, commencing with the third shift, which ran from midnight to 8 a.m. on April 18, production and maintenance employees started to walk out and many of them joined the picket line. Production and maintenance employees con- tinued to walk out through April 24, but the majori- ty of them did so on April 18 or 19. The exact number of production and maintenance employees who walked out does not appear but Respondent's witnesses estimated the maximum number as some 50. Apparently some returned to work before being replaced. On April 20, the employees at the New Jersey facility also went on strike, closing down that operation." At or around 5:30 p.m. on April 21, Respondent announced a 14-cent-per-hour across-the-board wage increase for its production and maintenance employees at Berkeley Springs. Then Respondent started to recruit and hire employees, with inter- viewing and hiring commencing on April 21 or 22. On April 22 a meeting of Teamsters Local 992 was called for the afternoon of Sunday, April 23. At the meeting there was a unanimous vote to picket the Company. The next morning, signs reading "Pennsylvania Glass Sand Unfair To Teamsters Local 992" appeared in the picket line. Under date of April 28, Respondent sent by cer- tified mail a notice to each striker that his group life and hospitalization insurance had been discon- tinued as of May 2. On May 12 agreement was reached between Respondent and GBBA on contract terms for the Pennsylvania plants and, presumably, for the con- struction and repair unit at Berkeley Springs, whose contracts generally conformed to those at the Pennsylvania plants. Pursuant to agreements, Respondent fully reinstated all the striking em- ployees at the Pennsylvania and New Jersey plants and the GBBA-represented construction and repair employees at Berkeley Springs. Commencing on or about May 2, production and maintenance employees at Berkeley Springs started to request reinstatement. On May 15, 3 em- ployees asked for reinstatement of all of the strikers, who then numbered 38, less a few who had accepted reemployment as "new hires" at jobs dif- ferent from their former ones. Respondent main- tained that all of the strikers except two had been permanently replaced and thus would not be rein- stated. Most of them were offered employment as "new hires" at jobs other than those they had held before the strike. About 10 of them accepted em- ployment so offered, while the others declined. Teamsters Local 992 continued to picket until May 22. The present complaint was issued on May 25, based on charges filed on May 3 and 17. On June 15, a panel of the Board issued its deci- sion in the representation proceeding. It sustained the Regional Director's recommendation that three of Respondent's four objections to the election be dismissed. Further, however, it rejected the Re- gional Director's recommendation that a hearing be held on the remaining objection, which it ordered dismissed. It thereupon certified the Union. Respondent's motion for reconsideration of that decision by the full Board was pending at the time of the hearing in the present complaint proceeding. It was denied on July 31, a few days after the close of the present hearing.' B. The Alleged Violations of Section 8(a)(1) 1. Unrelated to the strike In the preelection period Respondent vigorously campaigned against the Union by means of written communications to the employees at their homes," radio speeches by Hale Andrews, Respondent's ex- ecutive vice president, and a speech by Andrews at work 2 days before the election. The General Counsel introduced into evidence six letters sent by Andrews to the employees between February 18 and March 1. Attached to these letters (which con- sisted of 13 pages) were photocopies of 18 newspaper items concerning the Teamsters Union or its officers and 2 newspaper items generally antiunion . While it is not alleged that these commu- nications by Andrews were violative of the Act, they do clearly establish Respondent 's animus against the Teamsters" and provide the background against which Respondent's conduct must be ap- praised. Hendrix Manufacturing Co., Inc. v. N.L.R.B., 321 F.2d 100 (C.A. 5). The credited testimony of witnesses for the General Counsel establishes at least 22 incidents of interrogation and threats violative of Section 8(a)(1) before the election of March 3 by Roy Mc- Gee, third-shift foreman; Robert Harris, main- tenance foreman ; Charles Stroup, superintendent of "A day or two earlier a picket sign had appeared briefly at Berkeley Springs prematurely announcing that New Jersey was out on strike r During the present hearing, it was stated that a negotiating session had been tentatively scheduled, despite the pendency of Respondent's motion for reconsideration " Employee Foster Michael testified "I know I got enough letters that I could have fired a furnace for six months I know I got a lot of letters Got more mail than I ever got in my life " "Employee Roger McCarty testified that sometime in January or February, Foreman McGee said to McCarty and another employee that the employees "don't need the Teamsters, what they need is something like the GBBA " 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the dry processing department; Harold Whisner, quarry foreman; Jack Steiner, assistant plant manager ; and Emil Barney, superintendent of Mor- gan Mills. Employees Apple, Fisher, Courtney, Kenneth McBee and Richard Young credibly testified that before the election McGee had questioned them concerning their union sympathies and/or their "gripes." The testimony made it clear that the questioning was part of a systematic program of in- terrogation. For example, Courtney testified that McGee said he was "authorized to talk to each and every individual about this election-not the elec- tion, the Union. And he said, 'What is your gripes?"' Courtney testified that McGee also said that if the Union came in the employees would not have any insurance. Employee Fisher testified, credibly and without contradiction, that before the election he was twice interrogated by Foreman Mc- Gee, first as to whether he was "for the Union or for the Company," and then as to whether he had any gripes. Fisher told McGee he was "for the Company." Employees John Hiles, Shifflett, Henry, Nelson and Shambaugh testified to having been questioned about their Union sympathies by Stroup before the election. John Hiles quoted Stroup as having said that "we are going to draw a line on this thing and beat the Teamsters down to the ground," adding that "the Union ain't paying you and that your brother also ain't paying you." Employee Henry testified that 2 or 3 weeks before the election Stroup called him and another employee into his office. At that time Stroup said he had heard that Henry had been handing out union cards on Com- pany premises, thus giving the impression of sur- veillance. Employee Hamil Farris testified that Stroup said to him and employee Lopp, a union sympathizer: "I know how you two stand about the Union .... It is Company policy from here on out 15 minutes is all you get for dinner."10 Stroup then said to Farris: "You and Lopp is the instigators of this whole thing." Shifflett testified that on November 23, 1966, after his union sympathies became known to Steiner, he was no longer permitted to leave the pump house, where he was stationed, although he had previously done so freely.t1 Employee Jack Hiles testified that shortly before the election he heard Barney tell another employee "that there was a guy there with five children and he better make sure that the Union get in or he would be fired." Hiles thereupon told Barney that he had six children and had signed a union card, at which Barney had said Hiles "had better hope to hell that the Union got in." Employees Lopp and Junior Michael also testified that Barney had questioned them concerning their union sym- pathies. Foster Michael quoted Barney as having said, angrily, "that he didn't give a damn whether the Union come in or not; the Company wouldn't sign no contract." And employee Richard Johnson quoted Barney as having said that Jimmy Hoffa was "going to cause a man with five children to lose his job." Lopp testified that Barney, in the presence of another employee, had said to Lopp: "I hear you are a Teamster." Employee Kyne testified that before the election Foreman Harris questioned him about his union sympathies twice and Foreman Whisner questioned him once about his union sympathies and his "gripes." Although each of the named supervisors except Robert Harris testified on behalf of Respondent, none of them was examined concerning the in- cidents involved and thus none of them denied the testimony of the General Counsel's witnesses. Respondent does not discuss any of these incidents in its brief. In addition to the incidents above referred to, the complaint alleges and the evidence establishes seven additional incidents of unlawful threats and interrogation before the election by Assistant Su- perintendent Alvin Mullans. Without denying the factual allegations and the evidence in support thereof, Respondent maintained at the hearing, and argues in its brief, that Mullans was not a supervisor at the time of the alleged incidents. Since the un- contradicted evidence establishes a systematic pat- tern of preelection interference with the employees' exercise of their rights under Section 7 of the Act, without reference to Mullans' conduct, the Ex- aminer finds it unnecessary to determine his super- visory status since findings based on his conduct would be merely cumulative and would not affect the remedy to be recommended. Fisher testified that after the election McGee asked him if he was "still with the Company." To this Fisher said that he was still with the Company, but, since the Union had won the election, he was going to attend meetings. According to Fisher's testimony, still uncontradicated, McGee replied: "Well, it really doesn't make much difference; they won't give them a contract anyway." Fisher also testified without contradiction as follows concern- ing a conversation he had with Foreman Albert Young after the election: [Young] said ... "I am quite sure you have never signed a union card." He says, "The Company would like for you not to sign one." I said, I feel it is not the Company's business if I sign one, or yours, either. That the election was over does not minimize the coercive nature of McGee's and Young's conduct Employees are paid for meal time Shifflett testified that he was in the construction shop when Steiner came in His testimony continued " [Stemer] asked me if l worked there I said no He said,' Well, get the hell back over to the pump house where you belong and stay there We know what you are doing.' He said, 'That Big T you are mouthing off about, if it gets here, you are going to work, and if it don't you are fired I am telling you that right now ". PENNSYLVANIA GLASS SAND CORP. 519 since, as set forth above, Respondent filed objec- tions to the election and hoped to have it set aside and a new election held. On the credited and uncontradicted employee evidence, the Examiner finds and concludes that Respondent violated Section 8(a)(1) of the Act by systematic and widespread interrogation of em- ployees concerning their union sympathies (Koch Engineering Co., 155 NLRB 1272; Charlotte Union Bus Station, Inc., 135 NLRB 228); by threats of reprisal or loss of benefits if the Union became the bargaining agent for the employees (N.L.R.B. v. Zelrich Co., 344 F.2d 1011 (C.A. 5)); by creating the impression of surveillance (Plasticoid Co., 168 NLRB 135, fn. 3); and by impliedly promising benefits when it solicited employees' complaints or "gripes." 2. Related to the strike a. Threats of discharge (1) Oral warnings On April 16 company representatives and foremen informed Respondent's production and maintenance employees that a picket line was ex- pected to appear at the plant the next day and that the employees were expected to report to work as usual . Employee Apple testified that Foreman Roy McGee called the 15 to 20 third-shift employees into the doghouse and- said they was expecting trouble on Monday morning. That was the next morning, April 17th. And that we was to remain on our jobs and to hold our posts until we were relieved . . .. And that if we didn't remain , that our jobs would be in jeopardy. Employee Douglas Maconaughey testified that su- perintendent Charles Stroup told three employees that Respondent was "expecting the Glass Blowers pickets down here the next morning and that they had work for us and expected us to work and if we didn't we would be on our own." Employee Jack Hiles similarly testified that Stroup had said to him and a fellow employee "that there would be a picket line ... and they expected us to be there, and if we weren't there, we took a chance of losing our jobs." In answer to a leadin* question on cross- examination, Hiles credibly denied that Stroup had said anything "about being replaced." Employee Henry also quoted Stroup as having said that "in the morning there was going to be pickets down there [and ] if we didn't report for work ... we'd be taking a chance with the Company." Employee Herman Nelson quoted Stroup as having said to three employees that if the workers did not report to work despite the expected picket line they would "be on [their] own." On cross-examination Nelson also denied that Stroup had said anything about strikers' being "replaced." Employee Shambaugh testified that as he was driving along the road on Sunday, April 16, a truck driven by Assistant Su- perintendent Mullans, with Stroup as a passenger, drove up beside Shambaugh's car. Stroup informed Shambaugh of the expected pickets and said he "expected me in to work or it could be my job, or it meant my job ... it meant I might not have a job." Employee James R. Lopp testified that on April 16 Stroup told a working gang of employees- ... that there would be pickets there on Mon- day morning and that the plant was going to continue working and that we were not cer- tified and that if we did not show up for work the Company thought we would be giving up our jobs. Employee Donald Kyne testified that Assistant Shop Foreman Robert Dunham told several em- ployees that- ... effective Monday morning there would be a picket line in front of the Pennsylvania Glass Sand Company; that we would be expected to be on the job, and if we weren't the Company would feel we was in sympathy with the Union and our jobs would be terminated. Although Respondent produced McGee and Stroup as witnesses, they were not questioned about the statements attributed to them as quoted above. The testimony of the employee witnesses was not denied or otherwise impeached, either by the company representatives or by other em- ployees. Presumably Respondent could have produced other employees to testify that they had simply been warned of possible replacement if that had been the fact. Respondent did not produce Dunham as a wit- ness, but maintains that he was not a supervisor and therefore that Respondent cannot be held responsi- ble for his statements. The Examiner finds it un- necessary to determine whether Dunham was a su- pervisor within the statutory definition, since it is clear that, in making the statement in question, he was at least held out as an agent of Respondent. Cf. John Stepp's Friendly Ford, Inc., 141 NLRB 1065, enfd. in part 338 F.2d 833 (C.A. 9). The statement was made at work, while Dunham was wearing a yellow helmet, the Company's indicia of directive authority on the job. Dunham's statement was in line with those of admitted supervisors and clearly part of Respondent's program of advising em- ployees generally of the expected picket line and the Company's requirement that the employees nonetheless report to work. See N.L.R.B. v. Des Moines Foods, Inc., 296 F.2d 285 (C.A. 8). Employee John Hiles testified that on April 19, 2 days after the picketing started, Mullans said to him: "I want to see you at work tomorrow .... Because if you don't show up ... you are auto- matic[ally] giving up your job, you are quitting." This testimony was totally uncontradicted and Respondent concedes that at the time Mullans was a supervisor. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) The news release of April 17 The Berkeley Springs construction and repair employees, represented by GBBA Local 197, joined the picket line when it was established on April 17. The production and maintenance em- ployees, however, worked as usual that day, absen- teeism being no more than usual. During that after- noon, however, officials of Teamsters Local 992 determined that the GBBA strike was lawful and thereupon requested their members to honor the GBBA picket line. That evening Respondent issued the following press release: A Pennsylvania Glass Sand Corporation spokesman states that an injunction against mass picketing and violence has been issued by Judge Gray Silver. This means that law and order will be preserved and violators of the in- junction will be in contempt of court and sub- ject to imprisonment. The Company was forced to resort to this injunction to protect its employees and the community of Berkeley Springs against this invasion by outsiders when there was no dispute between the Company and its Berkeley Springs employees. The Company will stand behind any em- ployee who is threatened or whose access to the plant is blocked by illegal picketing. Spokesman stated "The Berkeley Springs plant has no labor dispute with anyone. It in- tends to carry on normal operation, and in view of the injunction and protection afforded by reinforced local and state police authorities, we will have to assume that any employee who fails to report for work has in effect given up his job and authorized the Company to hire a replacement. In its brief, Respondent argues: Respondent submits that the news release was at all times directed at the membership of Local 197, who were on April 17th engaged in a strike in violation of their contract. This con- tention is supported by the fact that at the time the news release was issued, Mr. Andrews was not aware that any of the Berkeley production and maintenance employees were on strike or contemplated honoring the GBBA picket line. The above facts are uncontradicted. They establish that the news release was not directed, nor did it threaten production em- " Andrews' subjective intention is irrelevant in appraising Respondent's conduct In any event , for reasons set forth in other portions of this Deci- sion, the Examiner discredits Andrews and thus attaches no weight to his testimony that the press release was addressed to the members of GBBA Local 197, whether that testimony be considered as purporting to state a fact concerning Andrews' state of mind or a conclusory interpretation of the press release " The New Jersey strikers were reinstated even though Respondent ap- pears to have been correct in its contention that the New Jersey strike was in contravention of a contractual no-strike provision. In view of this, it ployees at Berkeley Springs with discharge if they honored the GBBA picket line .... The Examiner rejects Respondent's contention. As previously found, on April 16, before the picket- ing began, Respondent, through its supervisors and agents, had warned its production and maintenance employees that their failure to report to work despite the GBBA picket line would put their jobs in jeopardy. Had Respondent wanted to address its construction and repair personnel, it could easily have worded the press release to make that clear. 2 In stating that "the Berkeley Springs plant has no labor dispute with anyone," Respondent was over- looking the fact that its contract with GBBA Local 197 covering the construction and repair em- ployees had expired and that those employees were then on strike. The strike by GBBA Local 197 was not in viola- tion of its contract, as claimed by Respondent. The term of that contract was "through March 31, 1967 and as long thereafter as regular negotiations for making a new contract shall continue." Negotia- tions with the GBBA in Pennsylvania had, in An- drews' own words, "broken off" on March 31, when the parties reached an impasse on the wage issue . So far as appears, there were no separate negotiations with GBBA Local 197. To speak of "this invasion by outsiders" served to emphasize an appeal to the production and maintenance em- ployees, the only ones to whom GBBA might con- ceivably be considered "outsiders." Respondent's contention that the press release of April 17 was directed only to the employees represented by GBBA Local 197 is basically incon- sistent with its claim that it did not threaten its production and maintenance employees with discharge but rather simply warned them of possi- ble permanent replacement if they struck. The press release is the only statement by Respondent's representatives, either oral or written, which referred to possible "replacement." Thus, if one were to accept Respondent's argument that the press release was not addressed to the production and maintenance employees, the testimony by em- ployees that they were simply threatened with possible loss of their jobs would remain totally un- diluted. Finally, it should be noted that no construction and repair employees were replaced. All strikers except the production and maintenance employees here involved were fully reinstated as part of the settlement reached with GBBA on May 12. t' comes with ill grace from Respondent to suggest , as it does, that the strik- ing production and maintenance employees at Berkeley Springs owe their sorry plight, not to Respondent, but to the GBBA , which allegedly promised that in settling its dispute with Respondent it would protect the jobs of Teamsters members who supported the GBBA strike Respondent's agreeing to reinstate the New Jersey strikers while refusing to reinstate the Berkeley Springs striking production and maintenance employees appears to reflect Respondent 's constant awareness that Local 992 had not as yet been certified , although it had won the election. PENNSYLVANIA Respondent's press release is very similar to a letter written to employees in Ekco Products Com-' pany, 117 NLRB 137, 145, which read, in part, "Your failure to report to work [within the next 4 days ] will be taken to mean that you have quit your job and we will therefore replace you." The Board held (p. 146) that the " letter to `active' employees constituted a threat to discharge those employees who continued to strike after " the specified date. Citing Robinson Freight Lines, 114 NLRB 1093; Coca-Cola Bottling Company of Louisville, 166 NLRB 134; and Missoula Motel Assn., et al., 148 NLRB 1477, Respondent argues that "The news release was no more than a lawful statement of the Respondent's legal position " that it could per- manently replace employees who went on strike. These cases, however, are all distinguishable from the present one. In Robinson the striking employees were advised by letter that they had been tem- porarily replaced and were given 5 days within which to return to work before they would be per- manently replaced. In holding that the employer's letter, which included a statement of its position that the employees had "abandoned [ their ] jobs," the Board emphasized the facts that "the Respon- dent and the Union [had] had amicable relations for more than 2 years and that there [was] no evidence in the record of either unfair labor prac- tices or of antiunion animus during that period," and that the letter to the strikers "was not part of any pattern of illegal opposition to the purposes of the Act; [ n]or was it designed to undermine the Union." In Coca-Cola the supervisor "immediately corrected himself" and "immediately retracted" his statement that he would "fire" employees who struck. The Examiner ( affirmed by the Board) ex- pressly found that " immediately after stating that he would fire all employees who went on strike, Su- pervisor Dettlinger explained that what he meant was that he would replace all who went on strike because it would be unlawful to discharge strikers." The Examiner emphasized that the evidence "reveal[ed ] in the Respondent a total lack of a desire to get rid of-to discharge-all striking em- ployees" and a "lack of animosity toward the strikers." In Missoula the employer had locked the employees out. However, it then terminated the lockout and notified the employees to return to work . Wh9n the notice had gone unheeded for a week, the employer sent another notification that if the strikers did not return to work the next day they would be terminated. So far as appears , neither notice was alleged as an unfair labor practice in it- self. In finding that the employer had not dis- criminatorily discharged the strikers , the Board said that "in the circumstances of this case [the em- ployer] was actually doing no more than warning [the strikers ] that if they refused to work he would hire replacements so that he could continue his business." In the present case there is a total absence of GLASS SAND CORP) 521 evidence that the supervisors ever explained that any loss of jobs would result from their being replaced; the employees were told simply that they would be expected to work and failure to do so would jeopardize their jobs. And the purport of the press release was to put the strikers in the position of voluntary quits. Had Respondent intended simply to assert its legal right to replace strikers, it could easily have said so. Its legal right to replace economic strikers did not depend on "authoriza- tion" from the strikers. Andrews' press release, therefore , was "a spe- cious attempt to shift the responsibility of termina- tion from the Respondent to the striking em- ployees." United States Cold Storage Co., 96 NLRB 1108, 1110, enfd. 203 F.2d 924 (C.A. 5), cert. de- nied 346 U.S. 818. Additionally, in marked contrast to the cases on which Respondent relies, the present record is replete with evidence of union animus and widespread unfair labor practices designed to undermine the Union . Perhaps most importantly, there is a plethora of evidence, both negative and positive, that Respondent was seizing on the strike as a means of ridding itself of union adherents, or, at the very least, securing sufficient new employees to affect the outcome of the second election which Respondent then hoped to secure. Subsequent events cast considerable light on the nature of Respondent's conduct on April 16 and 17. Although Andrews testified that he had not wanted the men to go on strike and certainly wanted them to return to work, Respondent never made any attempt to communicate to the striking employees that they would be welcome back. Respondent 's witnesses testified that in the meetings of supervisory personnel that were held before replacements were hired there was no discussion of the desirability of having the strikers return to work or of possible means of persuading them to return. Although recruitment and hiring of replacements commenced on April 22, just 5 days after production and maintenance employees started to walk out, no public announcement was ever made of the intention to hire replacements. Although Andrews and Marshall testified that they decided to hire replacements on a permanent basis in order to secure "the caliber" of men they needed, all recruiting was done solely by word of mouth, i.e., recommendation and solicitation by su- pervisory personnel and nonstriking employees. In view of the frequency with which Respondent com- municated with its employees by mail during the preelection campaign and the readiness with which it normally issued press releases, one can conclude only that its course of conduct was dictated by its desire to rid itself of the union majority which had been shown at the election on March 3. Another incident confirms this view. On the morning of April 18, employees Roscoe Johnson and Junior Michael reported for work. Superinten- dent Barney and his assistant, Melvin Shoemaker, 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sent them home, saying that the other men refused to work with them. Marshall testified that, on April 20, on the advice of counsel, he advised Barney to recall them. Barney did so on April 22 and 23, but neither employee returned to work. Respondent gave no specific explanation of the alleged "person- nel" problem which led to Barney's "possible er- ror," as Respondent's brief refers to the discharge. However, the record clearly suggests that the al- leged "personnel" problem centered around John- son's and Michael's zealous espousal of the union position. The inadequacy of Respondent's explana- tion of this incident14 (coupled with the Examiner's generally discrediting Respondent's witnesses) compels the inference that the discharge of John- son and Michael was part of Respondent's plan to use the strike as a means of ridding itself of the union employees. Barney simply jumped the gun, probably because Respondent's plans had not at that time been fully formulated and/or commu- nicated to the supervisory staff. When Johnson and Michael joined the strike, and did not return to work, they were engaged in protected concerted activity. Respondent's plan to use the strike as a means for undermining the Union is further demonstrated by the announcement of an across-the-board wage increase on April 21 and the method of hiring replacements on and after April 22, which matters are discussed below. It is sufficient at this point to state that they add circumstantial evidence in sup- port of the finding that Respondent's oral warnings on April 16 and its press release of April 17 were part of a single campaign by Respondent to rid it- self of prounion employees while the representation proceeding was still pending. They cannot be viewed as a lawful statement of Respondent 's legal position that it could permanently replace economic strikers within the holdings in Robinson Freight Lines, Missoula Motel Assn., and Coca-Cola Bottling Co. of Louisville, supra. As the Examiner sees this case, based on con- sideration of the evidence as a whole, Respondent's warnings of April 16, 17, and 19 were designed to persuade, through fear of discharge, sufficient em- ployees to remain at work to keep the plant operat- ing, while permitting the Company to take ad- vantage of the situation to rid itself of committed union adherents. Accordingly, on all the evidence, the Examiner concludes and finds that, as alleged in the com- plaint, Respondent, through oral statements by its supervisors and agents and by a public news release, threatened its employees with discharge if they exercised their right under Section 7 to engage in concerted activity.' b. The wage increase (I) Alleged public announcement On April 18, production and maintenance em- ployees started to walk out and many of them joined the GBBA picket line. The majority of those who walked out did so on April 18, but others went out through April 24. The employees at Respon- dent's plant in New Jersey went out on strike on April 20. The two Pennsylvania plants and the New Jersey plant were completely closed down. On April 21 Respondent posted the following notice on its bulletin boards at the Berkeley works: Effective Saturday, April 22, beginning with the 8:00 a.m. shift, our straight-time hourly rates for all Production and Maintenance em- ployees are being increased by fourteen (14) cents per hour. We have as a matter of practice put into ef- fect here increases negotiated by the Glass Bottle Blowers Association for our Keystone and Hatfield plants. The last of these increases was effective after our last contract was signed October 15, 1965. Our negotiations in Pennsylvania were ter- minated March 31, when GBBA went on strike. In our last offer to that union we proposed a 14 cent hourly increase for 1967, as part of a three year contract. Since the strikes started in Pennsylvania, there have been continued negotiations, par- ticipated in by the Federal Mediation Service. These were recessed Thursday of this week, when Locals 77 and 27 remained adamant against acceptance of the Company's offer. In view of all this, the Company does not be- lieve employees of the Berkeley Works should suffer or be penalized because of what has oc- curred elsewhere. Therefore, we are putting into effect the hourly rate increase we have of- fered Keystone and Hatfield, in the belief it is fair, substantial and in line with what other companies are doing. The complaint alleges, and Respondent denies, that the foregoing announcement was publicly released to the local press and radio station. In sup- port of its denial, Respondent produced Hale An- drews, its executive vice president, as a witness. Based on Andrews' demeanor, inconsistencies in his testimony, and credited contradictory " Although both Johnson and Michael testified , Respondent did not question them about the alleged recalls "The walkout of Teamsters Local 992 members would he lawful pro- tected activity even if it were simply a strike in sympathy with GBBA, with no immediate or direct impact on the production and maintenance em- ployees at the Berkeley Works Redwing Carriers, Inc., 137 NLRB 1545, 1546-47 However, according to Respondent's own evidence, the produc- tion and maintenance employees had a direct , personal stake, since GBBA was striking for a wage increase and Respondent had assured the produc- tion and maintenance employees that they would receive wage increases negotiated with GBBA at the Pennsylvania plants And the strike would he protected even if it were for recognition , as Respondent suggests in its brief Ekco Products Co., 117 NLRB at 141-145 Cf Cactus Petroleum, Inc, 134 NLRB 1254, 1260 PENNSYLVANIA GLASS SAND CORP. 523 testimony, the Examiner finds Andrews an unrelia- ble witness and gives no weight to his testimony. As to the announcement of the wage increase, An- drews testified that no public release could or would have been made by Respondent without his authorization and approval and that he had given no such authorization or approval . However, it is undisputed that both the local newspaper and the local radio station carried the announcement ver- batim . Kenneth Robertson, the owner and manager of the local radio station , was called as a rebuttal witness by the General Counsel . Robertson testified straightforwardly and with obvious candor concern- ing the details of the announcement's having been sent to him by Walter Shockey, Respondent's public relations representative. Shockey did not tes- tify. Respondent produced Warren Buzzerd, editor of the Morgan Messenger, a weekly newspaper published in Berkeley Springs . He testified that he "knew about the 14 cent an hour increase." On cross-examination concerning an article appearing in the Morgan Messenger for April 27, Buzzerd testified as follows: Q. Do you have any memo concerning whether before you wrote R. No. 6 you talked to Mr. Andrews, or did you merely repeat the press release which he gave you? A. I know on this particular occasion I called and talked to Mr . Andrews and he told me that time- 0. Did Mr . Andrews at that time tell you that negotiations with the GBBA terminated on March 31? A. Yes. Q. And he also told you about the 14 cent proposal? A. I don't know that he told me verbally a 14 cent proposal . I think that was a company release. * I don't know that I questioned him at all on the 14 cent an hour increase other than that it was in the form of a company news release. Most of these items are. Q. Are what? A. Based on conversations and in some respects with a release. This particular one, this is probably a portion of the release. When asked if Andrews had explained why "he waited 3 weeks to put the 14 cent increase into ef- fect," Buzzerd replied: "to the best of my knowledge, he explained, probably in the news release, that this would put them more in line with what the GBBA in Pennsylvania group was getting." The Examiner finds that, as alleged in the com- plaint, on April 21, Respondent publicly announced the 14-cent wage increase which was put into effect on April 22.16 (2) Alleged unlawfulness of the increase The General Counsel maintains that the 14-cent increase was unlawful because it was designed as an inducement to the strikers to abandon the strike and was calculated to influence the outcome of the second election which Respondent was at that time trying to secure through its pending objections to the election. Respondent contends that the wage in- crease was uninfluenced by any such considera- tions, but was given simply in conformity with established practice of the Company. Respondent maintains that at least since 1954 it had always given its Berkeley Springs production and main- tenance employees the same wage increases (but not the same fringe benefits) that it negotiated with GBBA at the Hatfield and Keystone plants in Pennsylvania. i' Respondent introduced into evidence announce- ments of wage increases at the Berkeley Works in each of the years 1954 through 1965, with the ex- ception of 1964. None of those announcements makes any reference to the Pennsylvania plants. Only one, that of 1960, which announced only a 1.3 percent cost-of-living adjustment refers to any customary pattern, and that says only that "[f]or the past several years the Company has been grant- ing an increase in the hourly rates at Berkeley Springs as of November 16." Respondent produced no evidence, documentary or oral, concerning wage increases actually granted at the Keystone and Hat- field plants. Apart from the oral testimony of An- drews, there is no evidence that the Berkeley Works production and maintenance employees had customarily received annual wage increases identi- '"In the course of the present hearing , Respondent addressed to the Board a telegraphic request for leave to appeal from a ruling of the Trial Examiner. The complete text of the telegram was reprinted in the Morgan Messenger and a quotation therefrom appeared in the Tri-State News, published in Hagerstown , Maryland , before counsel for the General Coun- sel and the Charging Party were served with copies or advised of the text Buzzerd testified that while he was preparing the July 21 edition of the Morgan Messenger, at about noon on Wednesday , July 20, a representative of Respondent telephoned to advise him that Respondent was sending him material which it would like to appear in that edition The material referred to was Respondent's telegram to the Board Andrews at first denied that he had authorized release of the text of that telegram to the press but later insisted that it was he who decided it should be released and so advised Shockey, after consulting counsel That in- cident, with Andrews' initial denial of involvement and his equivocation as to the circumstances of the press release , and his final assumption of responsibility bears considerable resemblance to the public announcement of the 14-cent wage increase on April 21 "This contention appears inconsistent with Respondent's position when , early in the hearing , counsel requested and was granted a continuing objection, on the grounds of relevancy, "to any testimony elicited by General Counsel concerning negotiations with a union other than Charging Party at some other plants other than Berkeley Springs , 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cal to those negotiated with the GBBA at the Keystone and Hatfield plants." In its brief, Respondent maintains that three em- ployees corroborated Andrews' testimony concern- ing the Company's past practice of granting at Berkeley Springs the wage increases negotiated in Pennsylvania. The record, however, does not sup- port this assertion . Employee Fisher testified that Respondent said that the Berkeley employees received the same wage increases negotiated at Pennsylvania and that Fisher "took their word for it." Respondent brought out the fact that Fisher's prehearing affidavit to a Board agent had said: "In the past we would often get a raise when the Pennsylvania plants got one but I do not know if it was the same amount." Employee Apple similarly testified merely that "We were supposed to" receive the same increases as were granted in Pennsylvania . In answer to leading questions on cross-examination , Cecil Shifflett stated that past wage increases at Berkeley Springs had been "about" the same as those granted in Pennsylvania. No employee appeared to have any knowledge of the matter other than Respondent 's statements. So far as appears, Respondent 's first general dis- closure of the alleged relationship was made as part of Respondent's preelection campaign to defeat the Union. Andrews testified as follows concerning a speech he made to the Berkeley employees on March 1: I said that we were prevented from making any wage increase during the election cam- paign. This, of course, was two days prior to the election here on March 3rd. I explained this philosophy of making wage increases at Berkeley as we had at Keystone, and I said we intended to continue this policy. The message was clear: Berkeley Springs produc- tion and maintenance employees could have the ad- vantages of a union contract without the obligations of union membership.'a Andrews' statement in the course of Respondent's campaign to defeat the Union does not constitute probative evidence of the alleged pattern . In view of the Examiner 's discredit- ing of Andrews and the absence of any documenta- ry or testimonial evidence permitting a comparison of the annual wage increases at Berkeley Springs with those at the Hatfield and Keystone facilities, the Examiner concludes that Respondent has failed to establish the existence of the customary pattern IN And Andrews himself testified that the wage rates at the Berkeley Works were not identical with those at the Pennsylvania plants, even though the similarity of the plants as to nature of operations , community characteristics, etc , was described in some detail He also conceded that changes in fringe benefits negotiated in Pennsylvania were not put into ef- fect at the Berkeley Works . Differences in the terms of employment at the 2 locations include , inter ada, the fact that the GBBA contract provides double time for Sunday work , whereas at the Berkeley Works Sunday is considered a regular working day with time and a half accruing only after 40 hours' work in any week 1° This testimony establishes a violation of Section 8(a)( I) under the Board 's recent decision in Casey Manufacturing Co , 167 NLRB 89. Since of parallelism by which it seeks to explain the 14- cent across-the-board wage increase granted to the production and maintenance employees at the Berkeley Works on April 22.20 In any event, the 14-cent increase granted at Berkeley Springs on April 22 did not conform to any increase at Pennsylvania. On March 31 the Pennsylvania employees had rejected the Com- pany's offer of 14 cents and had gone on strike for a greater increase . When the 14-cent increase was announced, many of the Berkeley Springs produc- tion and maintenance employees were supporting the GBBA strike.21 The contract finally negotiated with GBBA granted increases of 15 cents the first year and 10 cents in each of the second and third years, plus additional 2-cent increases for some classifications in the second and third years. Under all the circumstances, one cannot accept at face value Respondent's statement of April 21 that it was granting the 14-cent increase at Berkeley Springs because it did "not believe em- ployees of the Berkeley Works should suffer or be penalized because of what has occurred else- where." If, as Respondent contends, it was concerned because the Berkeley Works production and main- tenance employees "expected" an increase and it had on March 1 announced its intention to grant at Berkeley Springs any wage increase negotiated in Pennsylvania, its obvious course would have been to advise the employees of the state of affairs at. Keystone and Hatfield and assure the Berkeley Springs employees that the final wage settlement in Pennsylvania would be extended to the Berkeley Works. On all the evidence, the Examiner finds and con- cludes that the 14-cent across-the-board increase announced on April 21, effective April 22, was not in accord with Respondent's past practice. Properly to evaluate the quality of the 14-cent in- crease it is essential to consider the surrounding cir- cumstances. As previously indicated , before the GBBA extended its picket line to Berkeley Springs, Teamsters Local 992 had won an election among the production and maintenance employees at Berkeley Springs and Respondent had filed objec- tions. On April 14 the Regional Director recom- mended a hearing. By April 21, the New Jersey plant had been closed by a strike of its employees, the complaint does not specifically allege this conduct as an unfair labor practice, and any such finding would be cumulative and would not affect the remedy to be recommended, the Examiner makes no finding in this connection even though it was Respondent who voluntarily adduced the evidence '" In so finding, the Examiner is mindful of the fact that neither the General Counsel nor the Charging Party has questioned Respondent's as- sertion concerning its past practice " In its brief, in a different connection, Respondent relies on a quotation from a local newspaper of April 27 to the effect that " the strikers stated that they were on strike, ' because the GBBA was fighting for more benefits and what the GBBA had gotten in the past , most of the men in the local plant had gotten also ' ..." PENNSYLVANIA GLASS SAND CORP. 525 who were represented by Local 676 of the Team- sters. The Berkeley Works were still operating because the request by the officers of Teamsters Local 992 for its members' support of the GBBA strike had been only partially successful.22 Respondent manifestly was gravely concerned about continuing operations at Berkeley Springs.23 Respondent could thus achieve two desired ends by hiring "permanent replacements": it could help maintain production, and it could secure enough new employees to affect a second election .24 But in order to assure that the nonstrikers and the replacements would remain in the Company's employ and could reasonably be counted on to support the Company as against the Union , inducements were desirable, if not essential. Thus, before recruiting and hiring replacements, Respondent announced a 14-cent wage increase. Andrews denied that the wage increase was in any way connected with or related to the hiring of replacements. However, both he and Frank Marshall , general manager of operations , conceded that the decisions to grant the increase and to hire replacements were reached the same day. Andrews' testimony concerning the increase was typically in- consistent, as is shown by the following excerpts from his direct testimony Q. And the question of the NLRB election and the objections did not enter into your deci- sion to make the 14-cent increase? A. That's correct. Q. Was it necessary to put the 14-cent in- crease into effect in order to keep your busi- ness operating in Berkeley Springs? A. Yes. Q. Was that part of the reason you made the decision? A. That was part of the general economic business consideration, that's correct. Q. Was it necessary to put the 14-cent in- crease into effect in order to get strike replace- ments? A. No. Q. Was it necessary to put the 14-cent in- crease into effect in order to get strikers to return to work? A. No. Q. Was the 14-cent increase necessary to your thinking to keep employees in Berkeley Springs working? A. Not to keep them working then at that time but to properly compensate the Berkeley Springs employees over a period of time a wage increase was due. Andrews thus provided the clue to his thinking: he granted the increase with a view to the future. He was aware that, as he testified and as counsel ob- serves in Respondent's brief, "it appeared that cer- tification was far in the future," and, if Respondent was successful in its litigation moves , a second elec- tion would be held. That the 14-cent increase was designed as an in- ducement for antiunion sympathies by the new em- ployees finds corroboration in other facts. All the new employees were hired in the "Labor, Mill" classification, with an hourly wage rate of $1.99-1/2 plus the 14-cent increase, or a total of $2.13-1/2. Respondent's wage schedule, dated October 15, 1965, lists 19 job titles with their pay classifica- tions. The first 2 are: labor, unskilled, at $1.40-$1.60 per hour, and labor, mill, $1.99-1/2 per hour. Marshall testified that for at least 8 to 10 months prior to the strike all employees had been hired in the "Labor, Mill" classification at $1.99- 1/2. Jack Steiner, assistant plant manager at the Berkeley Works, stated that the policy of hiring at $1.99-1/2 had been in effect for about 6 to 8 months. He testified that the decision to raise the entering classification from unskilled labor to mill labor had been made by Marshall, that it had not been reduced to writing, and that it had not been generally announced or disclosed. However, both Steiner and Marshall insisted that the entering wage rate had been $1.99-1/2 for from 6 to 10 months prior to April 20. They testified that only "special payroll" or "temporary employees" (students hired for the summer) were hired at less than $1.99-1/2. In the course of the cross-examination of Steiner, it was disclosed by company records that in the year preceeding the strike 15 regular production and maintenance employees had been hired in at $1.40 per hour, 8 of them within the 8 months preceding the strike, with 1 as recently as January 30. Steiner finally conceded that he did not know of anyone who had been hired in at $1.99-1/2 and Respon- dent at no time presented any evidence that any employee had ever been hired at anything other than the $1.40 rate for common labor.26 The Examiner thus finds that the replacements were hired at a higher classification than called for by Respondent's practice. The entering rate of pay was 59-1/2 cents per hour more than that for the usual hiring. With the 14-cent across-the-board in- crease, the strike replacements were actually hired a Respondent 's unlawful threats of April 16 and 17 to discharge strikers probably contributed substantially to the incompleteness of the strike "Having discredited Andrews as a witness, the Examiner gives no weight to his description of the difficulties Respondent was encountering with its customers However , James B Pnzmger , Respondent 's vice pre- sident in charge of sales , also testified to such problems The Examiner has no reason for discrediting Prizinger's testimony Further , in view of the fact that three of Respondent 's plants in the general area were closed down, the economic desirability of continuing , and even expanding , operations at Berkeley Springs would be obvious even without any direct evidence 24 At the time , there apparently were 38 employees out on strike The Union had won the first election by a vote of 110 to 92, wwith I void ballot and 6 ballots challenged ' Much of his direct testimony was in response to leading questions 's Because of the foregoing inconsistency between their testimony and the facts shown by Respondent's records, in addition to other inconsisten- cies and evasiveness in their testimony , and based on their demeanor, the Examiner discredits both Marshall and Steiner 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in at 73-1/2 cents per hour more than the prestrike entering wage rate.27 Since Respondent 's witnesses maintained , contra- ry to the facts shown by its records, that the hiring rate had been $1.99-1/2 for 6 to 10 months before the strike, Respondent has not sought to explain the increases in the hiring classification initiated on April 22. It cannot be explained on the basis of a desire to secure employees of high caliber, the justification advanced for requiring permanent rather than temporary replacements,2g since the record shows little attention to the educational or experiential backgrounds of the replacements hired.2" For example, Joseph Blankley was allegedly hired to replace Harold Gloyd. Blankley's employ- ment application shows that he was 28 years old, had apparently had only 2 years of schooling (when he was 15 and 16 years old), and was barely literate. The "previous employment record" por- tion of his application showed only that in 1956 he had worked at $1.75 (presumably per hour) and in 1945 had worked for 70 cents (also presumably per hour). Neither the duration nor the nature of his employment was stated as to either of these jobs. The "1945" date for his first employment undoub- tedly was an error, since in 1945 Blankley was only 6 or 7 years old. Donald Lee Miller, aged 25, was hired purportedly to replace Charles Kidwell, who was classified as "Loader, Sand," one of Respon- dent's higher-paid classifications. As shown in his employment application, Miller's prior work ex- perience had consisted of working as an "operter" for "Reo Construction" from April 1964 to June 1965, when he left because it was "To far to travel"; before that he had been employed by "Pulp Wood" at a specified time, with unspecified duties, and for an unspecified wage or salary. On all the evidence, the Examiner concludes that the 14-cent increase was part of a well-planned pro- gram of undermining the Union and influencing the second election which Respondent hoped would be forthcoming. The increase could be reasonably ex- pected to further this end both by its app eal to those employees who had not joined the strike and by facilitating the employment of replacements whom Respondent could reasonably expect to vote against the Union.'" While, as Respondent main- tains, an employer has the right to replace economic strikers, the Examiner does not un- derstand prior Board and court decisions as holding that the exercise of that right may be accompanied or implemented by wage increases and other induce- ments, such as uncustomarily high classifications, designed to undermine the Union, interfere with the free choice of the employees, and affect the result of an anticipated election. There is no question that such inducements are unlawful after an election but while objections are pending. Northwest Engineering Co., 158 NLRB 624, enfd. subnom. United Steelworkers of America, AFL-CIO v. N.L.R.B., 376 F.2d 770 (C.A.D.C.), cert. denied 389 U.S. 932; Admiral Semmes Hotel and Motor Hotel, 154 NLRB 338, 342. The Examiner thus finds and concludes that the announcement and effectuation of the 14-cent wage increase on April 21 and 22 were "part of [a] pattern of illegal opposition to the purposes of the Act" (Robinson Freight Lines, ssupra, 114 NLRB at 1095) and thus violative of Section 8(a)(1) of the Act." c. Alleged assaults on pickets The complaint alleged that on or about May 1, Superintendent Stroup "assaulted and threatened to assault pickets established by the Union and GB- BA." The credited testimony of employee Jack Hale establishes that at or about the date stated Stroup drove a company pickup truck from the highway onto the grounds of Respondent's plant. Entering the plant grounds, he drove directly at three pickets who were at or near the curb, walking slowly across the roadway. Despite some conflict in the testimony, the Examiner finds that the truck did not actually hit any of the pickets, but it came very close and the pickets were saved only by jumping very precipately out of the path of the truck. Stroup then stopped the truck, got out and said "he would run over all of us." Stroup in effect admitted the allegation against 27 The complaint does not allege the 59 - 1/2-cent increase in the hiring rate due to reclassification as violative of the Act. It appears likely that this was not alleged because not known to the Regional Director or the General Counsel until it was disclosed in the course of the hearing , when Respon- dent produced certain material in response to a subpoena dines retain is- sued on behalf of the Charging Party Under the circumstances of this case, with the representation proceeding pending , if the complaint had so al- leged , the Examiner would find the hiring of new employees at higher clas- sifications than had been Respondent 's custom violative of Section 8(a)( I ) In this connection , Marshall testified as follows: There would be no point in this situation of trying to hire people just temporarily . They would not accept jobs on a temporary basis. So we were sure that the success of replacing any workers that had left their jobs was based pretty much on the fact that we could tell them that they were permanent employees and furthermore we didn't feel we could get the caliber of men that we need unless they were sure that this was permanent employment ' Respondent introduced into evidence the employment applications of 12 of the strike replacements The facts here stated are based on those ap- plications, since none of the replacements testified 30 In large part Respondent was able to eat its cake and have it. Although 36 employees were permanently replaced , only 19 inexperienced new em- ployees were hired , other strikers ' positions being filled by transfers of non- striking employees and the recall of I or 2 employees from leaves of absence . Thereafter some 10 of the strikers accepted employment as "new hires" in jobs made available by the transfers " The Examiner notes that if the Union had not gone to an election, but had rather relied on establishing its majority by a bargaining demand fol- lowed by a refusal-to-bargain complaint proceeding , the wage increase would have been violative of Section 8(a)(5). Consolidated Rendering Co., dlhla Burlington Rendering Co., 161 NLRB 1, fn I According to Andrews, the Union's president requested bargaining immediately after the increase was announced PENNSYLVANIA GLASS SAND CORP. 527 him. On direct examination he stated that as he turned into the company driveway the pickets "started to walk out in front of me, I didn't slow down too much until all at once I put my brakes on and skidded my wheels ." He then "went on in, a distance of about 40 to 50 feet, got out of the truck, and then ... told them a thing or two." The president of GBBA Local 197 then approached and said that the picket line was legal, to which Stroup replied : "the hell it is a picket line, I can come in here and leave anytime I want to." On cross-ex- amination, Stroup stated that he "believe[d] they were challenging " him. But he made it clear that he was referring to past conduct by one of the pickets rather than to any present conduct. The complaint also alleges , and the uncon- tradicted evidence establishes, that Melvin Shoemaker threatened Teamsters pickets John Hiles and Foster Michael and a GBBA picket by driving a company pickup truck at or about 20 to 25 miles per hour, without warning, dangerously close to them as they were standing near the curb in the roadway into the company premises. Respon- dent's sole defense to this alleged violation of Sec- tion 8(a)(1) consists of its contention that Shoemaker , assistant to Superintendent Barney, was not a supervisor within the statutory definition. Although considerable testimony was presented concerning Shoemaker 's duties , the Examiner finds one bit of uncontradicted evidence sufficient to establish that Shoemaker was at least held out to the employees as having supervisory status. About 8:15 a.m . on April 18, the second day of the GBBA picketing at the Berkeley Works, Shoemaker in- formed employee Junior Michael that the "guys refused to work with" him and his brother Foster Michael. Junior Michael thereupon left the job. Respondent does not disclaim responsibility for Shoemaker 's conduct in this connection, nor has it suggested that Junior Michael acted unreasonably in leaving the job in response to Shoemaker 's state- ment . It thus appears that Shoemaker was clothed with at least apparent authority to discharge em- ployees. See Wilder Finishing Co., 138 NLRB 1017, 1018. On this basis, the Examiner finds Respondent chargeable with Shoemaker 's assault on the strikers. The Examiner accordingly finds that Respondent violated Section 8(a)(1) by the conduct of Stroup and Shoemaker in assaulting or threatening em- ployees for engaging in protected concerted activi- ty. upon their unconditional offer to return to work. The General Counsel contends that the strike by Teamsters Local 992 was an unfair labor practice strike from its inception on April 18 and therefore Respondent was not at liberty to replace any of the strikers permanently. General Counsel argues, in the alternative, that, if the strike be found to have started as an economic strike, it was converted to an unfair labor practice strike when Respondent announced the 14-cent-per-hour wage increase. Finally, the General Counsel contends that, in any event, Respondent has not established that it per- manently replaced all of the strikers. Respondent argues that the strike was at all times an economic strike and that Respondent per- manently replaced all the strikers, as it was legally entitled to do. Respondent also questions the legal sufficiency of several strikers' requests for rein- statement. 1. The nature of the strike on April 18 The General Counsel contends that Respondent's numerous unfair labor practices preceding the elec- tion of March 3 and continuing to some extent im- mediately thereafter establish the character of the walkout as an unfair labor practice strike from its inception on April 18. The testimony, however, was clear and uncon- tradicted that the Teamsters members who walked out on April 18 and in the few days following did so for the purpose of supporting the GBBA , as they had been requested to do by the officers of Team- sters Local 992. The Teamsters had won the elec- tion, despite Respondent 's preelection unfair labor practices, and there was no suggestion at any point in the testimony that the Union contemplated tak- ing any action against the Company pending the resolution of Respondent's objections to the elec- tion.33 Although , as previously held, the Company on April 16 and 17 unlawfully threatened the em- ployees with discharge in the event they refused to cross the GBBA picket line, such threats did not bear any causal relationship to the actual walkout. No union officer or employee indicated that the original walkout was in protest against such threats. Accordingly, the Examiner rejects General Coun- sel's contention that the strike was an unfair labor practice strike at its inception on April 18 because of the prior violations of Section 8(a)(1) heretofore found. Cranston Print Works Co., 115 NLRB 537,' 565-566. Cf. Filler Products, Inc., 159 NLRB 1536, enforcement denied 376 F.2d 369 (C.A. 4). C. Alleged Violations of Section 8(a)(3) The complaint alleges that 3632 named striking employees were unlawfully refused reinstatement i' Respondent 's evidence that two of the alleged discriminatees (Victor McCoy and Richard Young ) were fully reinstated is undemed . The Ex- aminer thus will recommend dismissal of the complaint as to them " So far as appears , the Union did not file any charge with the Board 2. The nature of the strike after April 21 As previously stated, the 14-cent wage increase until May 3 That charge said "At all times material herein the Em- ployer has interfered with, restrained and coerced its employees " The only specific conduct mentioned was the insurance cancellation letter of April 28, which is not alleged as a violation in the complaint 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was announced and widely publicized on the even- ing of April 21. According to Andrews, at 7:50 a.m. on April 22, William Neidig, president of Local 992, telephoned Andrews at his home and requested that Respondent "sit down and negotiate with [the Union] on matters concerning wages and working conditions." Andrews replied that he would have to consult counsel. At or about 7:30 that evening Neidig telephoned Andrews for his reply to the Union's bargaining request. Andrews said he had consulted his counsel and read or paraphrased to Neidig a reply Andrews had written to Mr. Butler, who apparently was another union officer. Although the letter does not appear in the record, it apparently stated Respondent's refusal to bargain at that time . On April 22, after learning of the 14-cent increase , Harold Miller, business agent of Local 992, arranged for a union meeting to be held on Sunday afternoon, April 23, and had the scheduled meeting publicized by spot radio an- nouncements. According to Neidig's credited testimony, at the meeting, attended by some 60 to 65 members, he first brought the membership up to date on the course of the representation proceedings and the Company's refusal to bargain . The discussion then turned to the 14-cent wage increase. Neidig credibly testified that some 20 to 25 individual members expressed great displeasure at the in- crease and asked whether it constituted an unfair labor practice. Having previously consulted coun- sel, Neidig expressed his opinion that the increase did constitute an unfair labor practice. He there- upon presented a motion that Teamsters Local 992 institute a picket line in protest. The motion was carried unanimously, whereupon the meeting ad- journed and many of the members went to the union office to sign up for picket duty. The next morning Teamsters members picketed carrying signs reading: "PGS Unfair to Teamsters Local 992." Thereafter picket lines were maintained by both G13BA and Teamsters Local 992, each carry- ing its own signs.34 Whether the Teamsters picketing in its own name constituted a second strike or a continuation of its original walkout, it is clear that the 14-cent wage increase played a substantial role in the Teamsters picketing thereafter. The law is settled that "if an unfair labor practice had anything to do with caus- ing the strike , it was an unfair labor practice strike." General Drivers and Helpers Union, Local 662 v. N.L.R.B., 302 F.2d 908, 911 (C.A.D.C.), cert. denied 371 U.S. 827; Northern Virginia Steel Corp. v. N.L.R.B., 300 F.2d 168 (C.A. 4); N.L.R.B. v. Fitzgerald Mills Corp., 313 F.2d 260, 269 (C.A. 2). Respondent contends that even if announcement of the 14-cent wage increase was an unfair labor practice, the strike was not thereby converted to an unfair labor practice strike because the General Counsel did not "show that the strike would have ceased if the employer had not committed the un- fair labor practices." No such burden rests on the General Counsel. Once it was shown, as it was clearly shown here, that the employer's unfair labor practices were a factor in a strike, the strike was at least presumptively an unfair labor practice strike, and "The burden was on the Company to show that the strike would have continued even if it had" not committed the unfair labor practice. Philip Carey Manufacturing Co. v. N.L.R.B., 331 F.2d 720, 729 (C.A. 6). See San Antonio Machine & Supply Corp., 147 NLRB 1112, 1113, fn. 1: . we are unable to say that the strike would have occurred even in the absence of Respon- dent's unfair labor practice. The law is settled that where there are several causes for a strike, one of which is wrongful refusal to bargain, "it rest[s] upon the tortfeasor to disentangle the consequences for which it was chargeable from those from which it is immune...." Respondent's own evidence indicates that the original strike was prolonged by the wage increase. Marshall estimated the number of production and maintenance employees out on strike on April 20 as about 45 to 50. However, when the replacements were hired, there were only 38 production and maintenance employees on strike. Andrews volun- teered that "during the first 2 weeks some people may have reapplied for work but [he didn't] know personally." It is apparent, therefore, that some strikers returned to work soon after going out.35 In the absence of any evidence to the contrary, it is reasonable to infer that additional workers would have returned, particularly since the strike never achieved much success. Thus Respondent's unfair labor practice was at least partially responsible for the failure of more strikers to return before they were replaced. That the strike was aggravated by Respondent's unfair labor practices is demonstrated by the fact that at least one employee, Donald Kyrie, did not go out on strike until April 24, after the Teamsters picket line was established. He testified, without contradiction or impeachment, that he worked through the GBBA, picket line but walked the Teamsters line after it was established. In support of its contention that the announce- ment of the wage increase was not a causative fac- tor in the continuation of the strike, Respondent refers to Andrews' testimony that Neidig did not specifically mention the increase in his telephone conversations with Andrews on April 22. Although the Examiner has found Andrews not to be a creditable witness, the accuracy of his testimony concerning these conversations will here be as- Other unionsjoined in sympathy picketing " In his opening statement at the hearing , counsel for the General Coun- sel stated that " A large number of others , not named [ in the complaint] also were honoring the Glass Bottle Blowers picket line " PENNSYLVANIA GLASS SAND CORP. 529 sumed. The first call was made to Andrews at his home at 7:50 a.m., about 14 hours after the in- crease had been announced on the radio and about 10 minutes before the start of the first shift on which it was to be effective. There is no evidence that Andrews is accustomed to such business calls at his home on Saturday mornings or that he was surprised by Neidig's calling at that unusual time to request that the Company negotiate about wages and working conditions. The Union was then ar- ranging a special meeting for the next day (on ex- tremely short notice) and publicizing it by radio an- nouncements. To assume that Andrews was in any doubt as to the occasion for Neidig's call would be to attribute to him considerably less acuity and more naivety than he has professed or showed as a witness. Manifestly, there was no need for Neidig to explain the occasion of his call. In the evening, when Andrews indicated that the Company was not prepared to negotiate, for Neidig to protest the in- crease could achieve nothing other than to tip his hand and possibly limit the Union's flexibility in devising its future tactics. Additionally, the wage in- crease was merely the final straw. Although the Union had not taken action with respect to Respon- dent's numerous earlier unfair labor practices, it had done nothing to waive its rights. It is thus un- doubtedly true that the Union's unanimous vote on April 23 to institute its own picket line, though trig- gered by the wage increase, was also influenced by Respondent's earlier misconduct. Respondent also relies on testimony by Warren Buzzerd , editor of the local newspaper. Although the Examiner finds Warren Buzzerd to have been an unreliable witness,36 it will here be assumed that he testified accurately that Miller, the Union's busi- ness agent, had told him only that the Union be- lieved that Respondent was generally unfair and did not specifically refer to the 14-cent wage increase. With the Union having won an election over 6 weeks earlier, yet still out of sight of bargaining, it is but reasonable that Miller would express general condemnation of Respondent. Even Buzzerd, who manifestly was not expert on labor relations mat- ters, knew that some people were opposing the wage increase and he "assumed" that the Union would oppose it, although he disclaimed any knowledge of the union vote on April 23. Respondent finally contends that if the strike was converted from an economic to an unfair labor practice strike, the conversion took place on April 23, when the Union voted to picket in protest against the wage increase and that any strikers "permanently replaced" before then are not entitled to reinstatement .37 In support of this contention, Respondent cites Erie Resistor Co., 132 NLRB 621, 632. That decision, however, does not hold that conversion of a strike occurs only when a union takes formal action. On the contrary, the Board there said (p. 632): ... it is well settled that an economic strike is converted to an unfair labor practice strike when an employer's unfair labor practices operate to aggravate, or prolong the strike. In Erie Resistor the parties were in the course of negotiations and a strike was in process. While there were still many issues unsettled between them the employer sought union acceptance of its grant- ing superseniority to nonstrikers and strike replace- ments . For a while the employer did not press this demand aggressively and the parties continued to reach agreement on other issues. Eventually, as agreements were reached on contract terms, the su- perseniority issue took on increasing importance. When the employer's adamant insistence on super- seniority, regardless of the other agreements, became apparent, the union voted to remain on strike over that issue. Since the process had been a gradual one, with the parties continuing to negotiate and hopeful of reaching agreement, it was not clear just when the company's superseniority demand became a factor. It was in this context that the Board said: . it is clear that by May 29, the date of the Union's resolution to continue striking over su- perseniority, Respondent's superseniority had served to aggravate and prolong the strike, despite a narrowing of the parties' disagree- ment on other issues.... [Emphasis supplied.] In the present case there is no similar difficulty in determining when the Employer's unfair labor prac- tice became a factor. The wage increase was an- nounced on April 21 and broadcast on the local radio station at or about 5:20 p.m. that day and several times thereafter. Before the start of business the next morning and before any strikers were "replaced," Neidig requested Andrews to bargain concerning wages, and a union meeting was hastily arranged. In The Philip Carey Manufacturing Co., 140 NLRB 1103, 1106, enfd. in part 331 F.2d 720 (C.A. 6), cert. denied 379 U.S. 888, the Board held that an economic strike was converted to an unfair labor practice strike at the time the employer in- sisted upon superseniority to the point of impasse, even though the union never took formal action to relate the continuing strike to that conduct. In af- firming in pertinent part, the Sixth Circuit indicated that the Board might properly have found that the convention took place a month earlier, even before negotiations were broken off. That formal action by the Union was not necessa- •'" This credibility finding is based on Buzzerd 's demeanor , together with the facts that ( I) he professed virtually no present recollection of the events except as to a few details important to Respondent 's position, ( 2) his newspaper was editorially opposed to the Teamsters Union , and (3) he reluctantly conceded that Respondent was probably the largest customer for the printing services performed by his newspaper company " Respondent would include within this group seven strikers- replaced" on April 22 and two on April 23 354-126 O-LT - 73 - pt. 1 - 35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ry to convert the strike from economic to unfair labor practice is clearly established by numerous other Board and court decisions . See N.L.R.B. v. Plastilite Corp., 375 F.2d 343, 347-348 (C.A. 8) ); N.L.R.B. v. Safeway Steel Scaffolds Co., 383 F.2d 273 (C.A. 5). The Examiner accordingly finds and concludes that the strike , which began as an economic strike on April 18, was converted to an unfair labor prac- tice strike on April 21, when Respondent an- nounced an across-the-board wage increase of 14 cents per hour. 3. The alleged permanent replacements a. Replacement versus discharge The foregoing finding that the strike was an un- fair labor practice strike after April 21 makes it un- necessary to pass on Respondent 's contention that some or all of the alleged discriminatees were per- manently replaced . However, since the Board may disagree , in whole or in part , with the conclusions concerning the nature of the strike , the Examiner deems it advisable to set forth her resolution of the issues raised by Respondent's affirmative defense that it permanently replaced strikers. The complaint does not specifically allege unlaw- ful discharge of the strikers , but rather alleges only unlawful refusal to reinstate as violative of Section 8(a)(3). However , if the strikers were wrongfully discharged , refusal to reinstate them would con- stitute a violation even if the strike was purely economic . Whether a striker has been discharged or replaced is a matter of substance rather than of the verbal forms used . Missoula Motel Associatinon, 148 NLRB 1545, 1547. Respondent consistently maintained that none of the strikers had been "terminated." It never made out its customary "termination " notices for any of the strikers , even after it claimed they had been "permanently replaced." Indeed, the evidence established that their names remained on the Com- pany 's rolls at least as late as May 7, after 30 of them allegedly had been "replaced" and more than a week after they had all been informed that their group insurance , having been paid through May 1, would be discontinued as of May 2 . The lack of substance or realism in Respondent 's position is well pointed up by Steiner's testimony . Throughout the first day and part of the second day he was on the stand, he adamantly maintained that none of the strikers had been terminated, although most of them had ceased working and had been "replaced" some 3 months earlier and, after initial refusal, Respondent had paid them for accrued vacations on demand by union counsel. On questioning by the Examiner, Steiner testified as follows: Q. Can I ask you what you had in mind when you said that none of the strikers were terminated? A. I was, I didn 't have anything in mind, only that I was sure that they hadn 't been ter- minated. As previously found, on April 17 Respondent ad- vised its production and maintenance employees that they would be deemed to have quit if they did not report for work . Thereafter, Respondent made no attempt whatsoever to communicate with any of the strikers . Except for the improper statement in the April 17 release that failure to work would con- stitute authorization to the Company to replace strikers, the employees were given no warning that they would be replaced , although Andrews testified that "Word got out on the 20th " of the imminent hiring. Although the record establishes that Respondent frequently wrote to its employees, at least during the election campaign , and issued news releases with great frequency , it did neither in con- nection with the replacement of strikers . It did not publicly advertise for strike replacements, although one might well expect it to follow that course as it was, as Marshall maintained, interested in securing high caliber employees . At one point , when asked why he had not communicated with the strikers, Andrews said simply : "Why should we?" Although Andrews' question was rhetorical , there was an ob- vious answer . He testified that he wanted the strikers to return . But he took no steps to advise them that they would be welcome. On April 28, after consulting counsel , Respon- dent sent each striker (including those who Respondent does not claim had been replaced by that date ) a notice that his group insurance had been discontinued as of May 2. When cross-ex- amined by union counsel about this notice, An- drews testified as follows: Q. Why at that time when you sent this letter to individual named employees, did you not inform them whether or not they had been replaced as of that day? A. They had not asked . We assumed if they wanted to work they would come. A. . I assumed that they knew that we wanted them to work. The plant was operating. I assumed if they wanted to work they would have come up. We assumed they wanted to be doing what they were doing. 0. Had each of them been terminated as of that day? A. No they weren 't terminated. Q. Had each of them been replaced as of that day? A. I don 't know whether they all had been replaced at that time or not. Q. Why did you not indicate to those who had been replaced that this had taken place? PENNSYLVANIA GLASS SAND CORP. 531 A. They didn 't have enough interest to come and find out. Immediately thereafter, on redirect examination by Respondent 's counsel , Andrews testified as fol- lows: Q. You stated in you testimony that you in- dicated some desire that these people should come back to work, did you mean that to in- clude the people who had not been per- manently replaced? A. I made that statement on the radio I think on the 19th. Q. And what did you say? What did you state in that statement if you recall? A. I tried to recall earlier and I think that at the end of that radio speech I made some kind of comment about we are working and expect to continue to work. We want you to come to work or words to that effect. And it would apply to anybody who was not working at the time and I was questioning the date because if that was the 19th I don't know what the status of replacements was on the 19th. Q. Had you made a decision to permanently replace by the 19th? A. No that was discussed. I had the impor- tant talk with Mr. Marshall about that on the 20th and 21st. Q. Did we [counsel] come down to see you on the 20th and 21st to discuss this issue with you? A. Yes. Q. And did counsel have several talks with you ... [d] uring the period the 20th through the 24th of April? A. Yes. In answer to questions by the Examiner, Andrews said that his radio speech of April 19 had been made from a prepared text, a copy of which he had at home; and that all of it had been taped and he thought "the radio station keeps its tapes of all con- troversial matters," into which category his speech presumably fell. However, although there were 4 days of hearing during the next week, Respondent made no attempt to produce either Andrews' manuscript of the speech or the radio station's taped version. On Monday, May 1, Respondent informed all its Berkeley Springs employees of its having discon- tinued the insurance of "each of the nonworking employees." Respondent attached to this notice a copy of the letter sent to each of the strikers. Sig- nificantly, not a word was there said about "replacement." There is no apparent purpose for this action other than to impress upon the em- ployees then working the dire consequences of en- gaging in concerted activities. It certainly could not have been calculated to persuade any of the strikers to return to work although at least 13 had not been replaced before April 28.31 The Examiner finds that Respondent consciously and advertently failed to communicate with the strikers either individually or by public announce- ment with the specific intention of not encouraging them to return to work. While there may be no general legal obligation on an employer to request his striking employees to return to work, Respon- dent's silence in the present case leaves outstanding and unretracted its statement on April 17 that any employee failing to report for work would be deemed to have quit. Accordingly, as each em- ployee joined the strike his discharge became final. See Ekco Products Co., supra, 117 NLRB at 146; Wilder Finishing Co., supra, 138 NLRB at 1020. Respondent's letters of April 28 advising the strikers that their group insurance had been discon- tinued was clearly an acknowledgement of the discharge of the strikers. It could not be considered simply as an acknowledgement or recognition of their replacement because it was sent to strikers who had not at that time been replaced. In addi- tion, Andrews testified emphatically that the can- cellation of the group insurance, which had been cleared with counsel, had no connection with the hiring of replacements. The Examiner thus finds and concludes that the strikers were unlawfully discharged when they went on strike. Accordingly, they are entitled to rein- statement even if Respondent subsequently hired permanent replacements. b. The manner of hiring replacements Andrews and Marshall testified that on April 20 or 21 they decided to replace the strikers per- manently. They consulted counsel, who prescribed the methods for hiring the replacements. Andrews delegated implementation of the decision to Marshall, who, in turn, delegated details to Steiner. Recruitment was done solely by word of mouth through supervisors and nonstriking employees. Robert Diehl, a project engineer, was designated to interview job applicants. Actual hiring was to be done by Steiner, who permitted Barney and Stoup also to hire . Any striker applying for reinstatement was to be referred to Marshall. The entire super- visory staff was advised of the decision to hire replacements and the methods of implementation.39 '" Had this letter of May I to the employees been alleged in the com- plaint, the Examiner would have held it to be violative of Section 8(a)( I ) '" Andrews testified that a meeting of "all our supervisors and depart- ment heads" was held on April 24, which was 2 days after recruitment and hiring had commenced The major , if not sole, purpose of the meeting was to be sure that any striker seeking reinstatements be referred to Marshall Respondent was taking no chances that lower echelon supervisors might in- form any strikers that they had not been replaced 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In virtually every respect the hiring of replace- ments for the strikers differed from Respondent's past practices. It is clear that Diehl , in interviewing applicants, and Steiner, Stroup, and Barney , in hiring, ex- plicitly and forcefully advised prospective em- ployees that any job offered would be "per- manent." Similarly, each nonstriking employee who was transferred to a striker 's job was told unequivo- cally that the transfer was "permanent ." Indeed, Diehl required each job applicant to acknowledge in writing on the back of his employment applica- tion that he had been advised that "this is per- manent employment ... and he will have to suc- cessfully pass a company physical examination." Diehl conceded that few, if any, applicants specifi- cally requested "permanent" employment. Barney conceded that before the strike he had never specifically told any prospective employee that his job would be "permanent ." He did it at this time because he "was instructed by Counsel to tell the men that they were hired on a permanent ba- sis." Steiner testified that the Company had no trouble hiring employees and it was counsel 's deci- sion, transmitted through Marshall , that all em- ployees hired should be told "that their jobs would be permanent." In their initial descriptions of their conversations with prospective employees, none of Respondent's witnesses mentioned having advised any new em- ployee of his wage rate or his "probationary " status or the meaning of that status. For example, Steiner described his hiring process as follows: After their applications were taken they were put in the plant manager 's office . I would pick up an application , look it over and I would call the man and when he would come in, I would tell him that this was a permanent job. He would have to have a physical ex- amination, X-ray of the chest and I would tell him that he was hired and send him to Jack McBee and tell him who his foreman would be. Stroup's hiring methods were similar to Barney's. Typical in the following testimony concerning the hiring of Bernard Stotler: He came into my office and asked for a job and said he had filled out an application. I took him up to the main office and picked up his ap- plication , looked it over and asked Mr. Steiner if it was all right to hire him . He said yes if it suited me so I hired him . I told him that it was permanent employment and he would have to take a physical examination and he would be put on screen tower. In the course of cross-examining Steiner , counsel for the General Counsel introduced into evidence Respondent's Employees' Handbook, which contains the following: Probationary Period All employees are hired on a sixty day probationary basis . After that period our em- ployees are known as regular employees with continued opportunity to make good on the job and become entitled to the full benefits of employment with the Company. Steiner then testified : "It has always been the prac- tice as far as I can remember." When then asked whether the strike replacements had been advised of their probationary status, Steiner said, "I am pretty sure they were." Diehl, however , made it clear that he had not ad- vised applicants of the 60-day probationary period. His testimony was: Q. Did you tell the employees how long they would have to prove their work would be satisfactory. A. No sir. Q. What did you tell them about their work being satisfactory? A. I don't remember exactly, but they would have to be able to do the job that they were as- signed. Q. But you didn't tell them how long they would have to prove themselves? A. I don't recall. In his direct examination Stroup did not indicate that he had advised any of the new employees of their 60-day probationary or status or of the wages they would receive, either upon hire or upon quali- fying for the specific jobs for which he said they were being hired. On cross-examination , however, he testified as follows: Q. What classification were they all hired in as? A. Everybody was hired in and we had a 60 day period ... Q. My question is what classification were these five men hired in as? A. Well, they were breaking in. Q. In what classification were they hired in as? A. Laborers. On further cross-examination , Stroup conceded that before the strike all people he hired had been hired as unskilled labor at $1.40 per hour. He then testified that all the strike replacements he hired he PENNSYLVANIA GLASS SAND CORP. 533 hired as unskilled labor .40 But, their hiring-in rate was $2.13-1/2, the schedule rate for "Labor, Mill" plus the 14-cent increase announced on April 21. On questioning by the Examiner, Stroup testified that he informed the new hires that after 60 days, "[i]f they fulfilled all the requirements," they would be raised to the classification for which they had been hired . He then testified as follows: TRIAL EXAMINER : Have you in the past al- ways increased people at the end of 60 days? A. I would say over the period of the last 6 or 7 months, yes. TRIAL EXAMINER: What about before that? A. It was a longer period. TRIAL EXAMINER: When did this increase in 60 days start? A. Six to eight months ago. TRIAL EXAMINER: How long would it nor- mally take before that? A. I don 't recall how long it was. Stroup's final testimony concerning prior reclassifi- cation practices was: What I have been doing in my department is a man is hired, maybe he works in the yard for two months, maybe he will go onto loading, maybe he will go someplace else. He learns his diversified group of jobs. He doesn't necessari- ly have to, so I can truthfully say that there was no, as far as my department, there was no set amount of time. As previously noted, Steiner had testified that the 60-day probationary period had been company pol- icy for as long as Steiner recalled and Steiner had been assistant plant manager for about 15 years. Emil Barney, superintendent of Respondent's Morgan Mills department, also testified to his hav- ing transferred and hired employees on a "per- manent basis." He then testified: Q. Did you tell them anything about the 60 day probationary period? A. Yes sir, as far as the rates were con- cerned, that they would start at the rate of 2.13-1/2 for 60 days and then they would be given their rate for the job. His testimony then changed somewhat and, when the Examiner sought clarification, Barney said that "it used to take instead of going for 60 days without an increase they were increased at the end of 30 days and then again at 60." Questioned about his hiring of employee Wills, Barney said that he concluded from the employ- ment application, that Wills' education would be helpful in filling the job of employee William Michael, which position required familiarity with virtually all of Respondent's operations. Although Respondent introduced in evidence a number of employment applications, Wills' was not among them. Moreover, Barney further testified that if Wills had not mastered all of Michael's job at the end of 60 days he would nonetheless have been given the classification and pay for the job and Respondent would train somebody else to do the testing, which apparently was a part of Michael's duties requiring considerable skill. As to much of Michael's duties, Barney said "we have yet to have had a man, we have had them in all walks of life, who was not able to do work in the bag crew, ex- cept for a broken leg or neck on something." Andrews disclaimed any knowledge of the Com- pany's policy concerning classification, testifying as follows: Q. ... as far as you know a new employee would come in at the same rate as an old em- ployee? A. I don't know this. There are so many classifications and starting rates. I wouldn't quote from memory. Q. You don't have any policy regarding ... step increases until a man is there 6 months? A. I couldn't quote the policy of the plant, I don't know. Q. Who sets the policy? A. Well of course-I would say the policy is "' The evasiveness of Stroup's testimony is reflected in the following ex- cerpts After counsel for the Charging Party had listed some employees hired before the strike , the cross-examination of Stfoup continued Q Were all the men that you hired, hired of $1 40 an hour' A I just fill the time sheet in, lam not paying attention to the rates Q You didn't know that when you hired those employees A I didn't say anything like that Q Did you know that those employees I have just referred to were hired at $1 .40 per hour" A Yes Q. Was that pursuant to the company wage schedule' A I don't know about it . Q During or after April 20, did you hire any employees at the job classification of Labor Unskilled" A Yes Q. Who" A. I hired, everybody I hired , I hired Labor Unskilled Q. Do you know what wage they were hired as9 A Them, no sir Q You have no idea what their wage was" A You didn't ask the wage I hired them to get the sand down, that is my ulterior motive and I got it down . . TRIAL EXAMINER When you hired them did you tell them what their wages would be" A They were told by Jack McBee to fill out the papers TRIAI EXAMINER You said that you hired them They would accept employment without knowing from you what their pay was going to be" A That 's right Q (By Mr Beins ) Did you when you hired them tell them what their rate was going to be" A I told them what they would work up to TRIAI. EXAMINER Did you tell them what they would start work as9 A I don't recall if I did or not Q (By Mr Beins ) What did you tell them that they could ultimate- ly work up tog A I told the boys that were hired for specific jobs they would work up to that job classification , and the majority of them are on that job classification right now Q Did you mention $2 139 A I may have Based on his demeanor, in addition to the evasiveness , vacilation, and implausibility of much of his testimony , the Examiner discredits Stroup 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set by Mr. Marshall as general manager of operations of the company. Q. Are you in on the decisions, or do you leave it up to him? A. Well it depends on how far-reaching the economic impact of a change is. A general wage increase, I am certainly in on it and I make the final decision. But it depends on the magnitude of the adjustment in classification and policy. Diehl testified that before he commenced inter- viewing he took from the office of Respondent's Personnel Officer Johnson, a copy of the Com- pany's wage schedule, because he knew, from his previous experience in hiring as a field engineer, that the matter of wages was "the first thing" appli- cants inquired about. While his testimony concern- ing the interviewing of prospective strike replace- ments was vague and inconclusive, it does indicate that relatively few applicants asked him about the wage rate. To those who did inquire, he said the "- minimum" entering rate would be $2.13-1/2 per hour and he gave no indication what their actual rates higher than the "minimum" might be. No other witness mentioned "minimum" hiring rates, and Marshall testified that he had told Diehl that the hiring rate would be that for "laborers" or "Labor, Mill," but did not tell Diehl what that rate was. Diehl testified that he did not know what the Company's usual practice was concerning classifi- cation of new employees. He also said that in the course of his interviewing he probably did not refer to the wage schedule "because it would have been no concern to them, other men's wages would not." When asked, both Marshall and Steiner were unable to say whether any of the strike replace- ments had been reclassified to the jobs for which they purportedly had been hired. Steiner said that such information would be shown in the Company's "payroll control sheet" and the "payroll summa- ry." On the eighth (and final) day of the hearing, Respondent recalled Marshall and through him, over the objection of counsel for the General Coun- sel and the Union, introduced into evidence "Change of Status" forms purporting to show that 26 employees hired in the latter part of April and the early days of May had been reclassified, with corresponding substantial increases in wage rates, 60 days after being hired. The payroll documents which Steiner had mentioned were not introduced. Although all of Respondent's witnesses disclaimed knowledge of how or precisely where the Com- pany's records were kept, neither C. H. Bratton, general manager of the Berkeley Works, nor Per- sonal Officer Johnson, nor Chief Clerk Jack McBee was called to testify. McBee was consistently identified as the person who prepared and main- ' It might be noted that such reclassifications, if found , would probably be violative of Section 8(a)(5), since they were all effective after June 15, when the Board certified the 1. mon, and clearly were not discussed with the Union. tained all the records. In view of these circum- stances, the Examiner would be unwilling, if it were necessary, to base any finding on the uncor- roborated "Change of Status" forms reflecting the purported reclassification of the strike replace- ments.41 Respondent's Employees' Handbook states unequivocally that "New employees are given a complete physical examination before going to work," and the evidence shows that this practice was followed with virtually complete uniformity be- fore the strike. However, of 22 persons hired between April 22 and May 9, one had had a complete physical examination before going to work and only 14 had their "X-ray only" upon commencing work. Further, when Respondent reemployed "replaced" strikers as "new hires," it appears not to have followed its prior practice of hiring new employees at a labor classification on a 60-day probationary period. For example, when Roger Mc- Carty went on strike he was receiving $2.27 per hour (including a shift differential) and on his reemployment he received $2.41, the rates for mill operators. He testified that "it was explained to [him] by Mr. Marshall that [he] would never draw below operator's wages even though [he] may do mill helper worker, which is the next grade down." Employee Roger McCarty, Sr., reemployed osten- sibly as a "new hire," was given full credit for his years of past service for the purpose of computing pension rights, vacations, etc. Because of the inconsistencies and vagueness in much of the testimony of Respondent's witnesses, and their discredit based on demeanor, the Ex- aminer is unable to state precisely what Respon- dent's prestrike employment practices and policies were. However, to the extent that the evidence does permit findings in this regard, it is found that the hiring of strike replacements departed from prestrike practices in various respects, including: (1) Replacements were hired as "Mill Labor" rather than "unskilled labor," which gave them an hourly rate 59-1/2 cents (in addition to the 14-cent across-the-board increase) higher than had been the hiring rate before the strike; (2) replacements were not subjected to a probationary period but rather were required to acknowledge that their em- ployment was "permanent," without qualification;` (3) little, if any, attention was paid to the replace- ments' educational or experiential backgrounds although the Company's employment application form indicates that such matters are considered im- portant; and (4) replacements went to work before having physical examinations although the Com- pany's established policy was to require successful 42 As Respondent notes in its brief, the existence of a probationary period does not necessarily negative "permanency " of employment under Board decisions . Anderson, Clayton & Co, 120 NLRB 1208. 1214. PENNSYLVANIA GLASS SAND CORP) 535 completion of full physical examinations before em- ployees were permitted to work. Despite the inadequancies in Respondent's evidence and the discrediting of most of Respon- dent's witnesses, the Examiner does find that Respondent unquestionably informed all the em- ployees who were either transferred or hired to replace strikers that their jobs were "permanent." Indeed, these employees were required to acknowledge that fact even though there is no evidence or any apparent reason to believe that any of the employees might object to such condition of employment.43 It does further appear that, with the exception of some four who subsequently failed their physical examinations and two or three who quit, all the new employees hired to replace the strikers were still in Respondent's employ at the time of the present hearing. On all the evidence, the Examiner finds that Respondent did permanently replace the strikers and it did so for purpose of undermining the Union and securing sufficient new employees to affect the result of the second election which Respondent was attempting to secure. Respondent's position must rest ultimately on the assertion of an unqualified right to replace the strikers permanently, a right which is unaffected by its bad faith. Anderson, Clayton & Co., 120 NLRB at 1214. Respondent appears to have patterned its replacement program on that sanctioned by the Board in Hot Shoppes, Inc., 146 NLRB 802.44 In Hot Shoppes the Board observed (146 NLRB at 804) the absence of any "evidence that Respon- dent, in hiring replacements, acted contrary to its usual practice in any respect, except in preparing and keeping employment memorandums." How- ever, under the basic rationale of the decision, de- partures from past practices would appear to be im- material, at least where, as here, the Employer's obligation to bargain with the Union had not become legally enforceable. The Examiner thus concludes that the strike replacements hired by Respondent were "permanent" within the Hot Shoppes rule. However, the Examiner does not read Hot Shoppes as giving employers carte blanche to replace economic strikers under all circumstances and by any means they may desire. In Hot Shoppes there was a certified union and the strike occurred in the course of contract negotiations. The strikers were warned in advance that they would be permanently replaced if they went on strike. Hot Shoppes thus presented a classi- cally simple case of economic warfare, with the em- ployer's using established means of resisting the union 's economic pressure in support of its de- mands. In this situation, the Board said (146 NLRB at 805): ... the motive for such replacements is im- material, absent evidence of an independent unlawful purpose .... In the present case, however, the Union, though representing a majority, was not certified because of Respondent's continuing attempt to secure a second election. Respondent's purpose to un- dermine the Union and affect the second election it was seeking constitutes the "independent unlawful purpose" which was missing in Hot Shoppes. The 14-cent wage increase and the additional 59-1/2- cent increase in the hiring rate were unlawful acts implementing this basic "unlawful purpose." Cf. J. C. Penny Co. v. N.L.R.B., 384 F.2d 479 (C.A. 10). Similarly, in Coca-Cola Bottling Co. of Louisville, supra, on which Respondent relies, the Examiner specifically based his conclusion that the employer had not discriminatorily discharged the strikers on his finding "that Respondent engaged in no unlaw- ful conduct that undermined the Union or rejected or obstructed the collective-bargaining process, in- dependent of, or apart from the solicitation of strikers to return to work at the increased wage previously offered to the Union" before an impasse in negotiations was reached. The present Examiner is aware of no decision, either by the Board or by any court, which holds that an employer's right to replace economic strikers carries with it the right to engage in con- duct which would otherwise constitute unfair labor practices. Where, as here, the replacement of strikers is accompanied by unfair labor practices and is "part of [a] pattern of illegal opposition to the purposes of the Act" (Robinson Freight Lines, supra), against the background of intense union animus, the hiring of replacements must itself be considered discriminatory conduct. Cf. N.L.R.B. v.i Cone Bros. Contracting Co.,317 F.2d 3, 8 (C.A. 5). See Thurston Motor Lines, Inc., 166 NLRB 862: . Although an employer may replace em- ployees who are engaging in a protected con- certed activity, e.g., a lawful strike, the em- ployer's right to replace is no greater than its proven need to carry on its business. It is not a punitive right. The Examiner thus concludes that, even if the strike had been purely economic and if the strikers had not been discriminatorily discharged, the replacement of the strikers would itself have been violative of Section 8(a)(3) and (1) of the Act under the circumstances of this case. u Whatever obligations the term " permanent" might impose on an em- ployer ( and so far as appears it entailed no obligation on Respondent), it in no way restricts the freedom of an employee at will, as evidenced by the fact that Roger Lee Stotler was hired by Respondent on April 22 and quit on April 25. "Counsel for Respondent here also represented the respondent in Hot Shoppes 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Requests for reinstatement Marshall testified that employees Clyde Perry, Sr., Clyde perry, Jr., and Gene Spears applied for reinstatement on May 2; David Yost on May 3; and Fisher, Lloyd Farris, and Billy Stotler on May 13. On May 15 a group of strikers, which Apple credibly testified included a majority, met infor- mally at the union offce.4S After discussing the question of seeking reinstatement among them- selves and with Business Agent Miller, they delegated three of their number (McCarty, Apple, and Lopp) to visit the Company and request rein- statement of all the strikers. The committee spoke to Steiner. The next day, May 16, Marshall wrote the following letter to McCarty, with copies to Apple and Lopp: This is to confirm your conversation with Jack Steiner last evening in which you requested reinstatement to their jobs for all nonworking employees. Mr. Steiner stated that all such em- ployees had been permanently replaced with the exception of Lloyd Farris [46] and Richard Young. You were further told that Mr. Farris and Mr. Young could return to their jobs im- mediately, and that all permanently replaced employees could reapply for work to fill any job vacancies at the plant. if you should have any questions in this regard, please do not hesitate to contact me. Respondent now contends that several of the strikers are not entitled to reinstatement because there is no affirmative evidence that each of them was at the union office when the committee was ap- pointed and specifically authorized the committee to request his reinstatement. As Marshall's letter shows, Respondent fully ac- cepted the committee as the representative of all the striking employees. It did not question the com- mittee 's authority "but rather relied on the fact that all the strikers had been permanently replaced." N.L.R.B. v. Park Edge Sheridan Meats, Inc., 323 F.2d 956 (C.A. 2). "There is not the slightest evidence that the strikers did not approve of the [committee's] action or that they considered that organization to have exceeded its authority. Nor is there any evidence that the Respondent ever questioned the right of the [committee] ... to apply in behalf of the strikers for reinstatement." Ekco Products Co., 117 NLRB at 147. The Ex- aminer thus finds that the committee's request of May 15 constituted an effective unconditional request for reinstatement on behalf of all the strikers.47 In any event, Respondent had made it unequivo- cally clear, by the cancellation of their group in- surance and their purported permanent replace- ment, that it would not reinstate any of the strikers. Under such circumstances, they were not required to "undertake the futile gesture of offering in per- son to return to work ." N.L.R.B. v. Park Edge Sheridan Meats, Inc., supra, 323 F.2d at 959; N.L.R.B. v. Valley Die Cast Corp., 303 F.2d 64 (C.A. 6); Sea View Industries Inc., 127 NLRB 1402. CONCLUSIONS OF LAW 1. Respondent, Pennsylvania Glass Sand Cor- poration, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, General Teamsters and Allied Workers Local No. 992, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby committed unfair labor practices in violation of Section 8(a)(1) of the Act, by interrogating them concerning their union activities, threatening them with reprisal for supporting the Union, creating the impression of surveillance of union activities, threatening them with bodily harm while they were engaged in lawful picketing, threatening them with discharge if they engaged in protected concerted activity, and impliedly promising benefits and granting a wage increase and favorable hiring clas- sifications for the purpose of influencing their choice of a collective-bargaining representative. 4. By refusing to reinstate the 36 strikers listed in Appendix A on the dates specified therein, although they had unconditionally applied for rein- statement, Respondent discriminated with respect to the hire and tenure of employment of these em- ployees, and committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The complaint should be dismissed insofar as it alleges discriminatory refusal to reinstate em- ployees Richard F. Young and Victor L. McCoy and other unfair labor practices not specifically found herein. THE REMEDY Since the unfair labor practices committed by Respondent are so numerous and widespread and go to the very heart of the Act, the Examiner will recommend that it be ordered to cease and desist not only from committing the specific unfair labor "The evidence shows that during the strike the strikers generally spent considerable time at the union office. 16 The Respondent 's original answer to the complaint alleged that Farris had been offered reinstatement By amendment at the hearing , that allega- tion was withdrawn Strikers Young and McCoy were reinstated 4' It is thus unnecessary to review evidence, including testimony by Marshall, that some strikers personally applied for reinstatement after May 15 PENNSYLVANIA GLASS SAND CORP. 537 practices found but also from infringing any of the rights guaranteed to employees by Section 7 of the Act. The finding that Respondent violated Section 8(a)(1) by granting a 14-cent-per-hour across-the- board increase and by hiring new employees at higher classifications than it had previously is not to be construed as requiring that such benefits must be rescinded or withdrawn. Classifications and wage rates are to be left for the collective-bargain- ing process. Having found that Respondent unlawfully refused to reinstate the 36 strikers who are seeking rein- statement to their former positions and who uncon- ditionally requested reinstatement, the Examiner will recommend that Respondent be ordered to offer to each of these employees immediate and full reinstatement to his former position '48 without prejudice to his seniority or other rights and privileges previously enjoyed by him, discharging, if necessary, any new employees hired to fill such jobs and retransferring any employees transferred to fill such jobs. The Examiner will also recommend that Respon- dent make each of the strikers (listed in Appendix A) whole for any loss of pay he may have suffered by reason of Respondents unlawful conduct since the date of his unconditional request for reinstate- ment until the date when Respondent makes an un- conditional offer of full reinstatement. Such com- pensation is to be computed in accordance with F. W. Woolworth Co., 90 NLRB 289, and shall carry interest in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. See Georgia Highway Express, Inc., 165 NLRB 514; Ekco Products Co., 117 NLRB at 150-151. Under the circumstances here presented, a bar- gaining order is appropriate even though the com- plaint did not allege violations of Section 8(a)(5) and there was no technical legal obligation to bar- gain at the time involved. Cf. J. C. Penny Co., 160 NLRB 279, enfd. 384 F.2d 479 (C.A. 10). Although the violations here found occured only at Respondent's facility in Berkeley Springs, West Virginia, they were intimately related to events oc- curring at Respondent's plants in Pennsylvania and New Jersey. Indeed, Respondent sought to shift responsibility for the strikers' predicament to the GBBA, which represented the Pennsylvania em- ployees. Accordingly, the Examiner will recom- mend that Respondent be required to post copies of the prescribed notice not only at its Berkeley Springs plant but also at the Pennsylvania and New Jersey installations. RECOMMENDED ORDER Upon the entire record in the case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Trial Examiner recommends that Respondent, Pennsylavania Glass Sand Cor- poration, its officers, agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating employees concern- ing their uninon activities. (b) Threatening employees with reprisals, physi- cal injury, or other detriment for engaging in union or concerted activities. (c) Granting or promising wage increases, reclassifications, or other benefits for the purpose of interfering or in a manner tending to interfere with the employees' free exercise of their rights under Section 7 of the Act. (d) Creating the impression of surveillance of employees' union activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist General Teamsters and Allied Workers Local Union No. 992, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that this right may be affected by an agreement in con- formity with Section 8(a)(3) of the National Labor Relations Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) In the manner prescribed in The Remedy section of the Trial Examiner's Decision, offer to the employees named in Appendix A immediate and full reinstatement to their former positions without prejudice to their seniority or other rights and privileges. (b) Make whole the said employees, in the manner set forth in The Remedy section of the Trial Examiner'sDecision, for any loss of pay they may have suffered by reason of Respondent's dis- crimination against them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Upon request bargain with General Team- sters and Allied Workers Local Union No. 992, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the ex- clusive representative of all production and main- " No provision is made for reemployment at "substantially equivalent" positions because Respondent maintained at the hearing that all the strike replacements are actually workers in the very positions formerly held by the strikers See Porto Rico Container Corp , 89 NLRB 1570, 1582, fn 25 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenance employees employed by Respondent at its silica sand mining and processing plant at Berkeley Springs, West Virginia, as the appropriate unit has been defined by the National Labor Relations Board in Case 5-RC-5826. (e) Post at its Berkeley Works and its Keystone, Hatfield , and Bausman plants copies of the at- tached notice marked "Appendix B. "49 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's representative , shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places , including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.SO IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges that Respondent discriminatorily failed to offer reinstatement to Richard F. Young and *Victor L. McCoy and insofar as it alleges violations other than those herein specifically found. " In the event that this Recommended Order is adopted by the Board, the words " a Decision and Order " shall he substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals , the words " a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words " a Decision and Order " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify the Regional Director for Region 5, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A Employees entitled to reinstatement and backpay by Pennsylvania Glass Sand Corporation, and the dates from which backpay is to be computed: May 2, 1967: Clyde Perry, Jr. Clyde Perry, Sr. Gene W. Spears May 3, 1967: David W. Yost May 13, 1967: Lloyd L. Farris Harold R . Fisher Billy J. Stotler May 15, 1967: Clarence H. Anderson Willard F. Apple Charles E. Boherer Edward O. Brakeall Charles C. Courtney Hamil L. Farris Harold S. Gloyd Stanley M. Henry Jack W. Hiles John T. Hiles Edwin D. Hutchinson Roscoe V. Johnson Carl G. Kidwell Vernon L. Kuykendall Donald Kyrie James Lopp Douglas Michael Foster Michael Junior B . Michael William R. Michael Melvin W. Peck Kenneth W . McBee Nyle G. Rankin Roger K . McCarty, Sr, Roland F. Shambaugh Herman O . Nelson Cecil E. Shifflett Paul E. Offord Samuel E. Whisner APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT do anything to indicate to the production and maintenance employees at our Berkeley Springs plant that we are spying on their union activities. WE WILL NOT grant or promise wage in- creases or other benefits to the production and maintenance employees at our Berkeley Springs plant for the purpose of inducing them to refrain from supporting General Teamsters and Allied Workers Local Union No. 992, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. WE WILL NOT threaten the production and maintenance workers at our Berkeley Springs plant with discharge, reprisals, or any other detriment for their supporting the above- named Union or for engaging in concerted ac- tivities. WE WILL NOT discourage union membership or activities or other concerted activities by the production and maintenance employees at our Berkeley Springs plant by discharging them or by discriminating in regard to hire and tenure of employment or in regard to any other term or condition of employment because of their union affiliation or concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce the production and maintenance employees at our Berkeley Springs plant in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named labor or- ganization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities. WE WILL offer immediate and full reinstate- ment to the following named employees, without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them , with interest thereon at 6 percent per annum: PENNSYLVANIA GLASS SAND CORP. 539 Clarence H. Anderson Willard F. Apple Charles E. Boherer Edward O. Brakeall Charles C. Courtney Hamil L. Farris Lloyd L. Farris Harold R. Fisher Harold S. Gloyd Stanley M. Henry Jack W. Hiles John T. Hiles Edwin D. Hutchinson Roscoe V . Johnson Carl G . Kidwell Vernon L. Kuykendall Donald Kyrie James Lopp Douglas Maconaughey Foster Michael Junior B. Michael William R. Michael Kenneth W. McBee Roger K. McCarty, Sr. Herman O. Nelson Paul E . Offord Melvin W. Peck Clyde Perry, Jr. Clyde Perry, Sr. Nyle G. Rankin Roland F. Shambaugh Cecil E. Shifflett Gene W. Spears Billie J . Stotler Samuel E. Whisner David Yost ecutive employees, superintendents, technical employees, engineering em- ployees, research and laboratory em- ployees, janitors, office clerical em- ployees, employees of the Construction and Repair Department, employees of other departments not employed by said Berkeley Works, professional employees, watchmen , guards, and supervisors as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other union, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment 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. WE WILL bargain , upon request , with the above-named Union as the exclusive represen- tative of our employees in the following ap- propriate unit: All production and maintenance em- ployees employed by Pennsylvania Glass Sand Corporation at our Berkeley Works, including gang leaders, but excluding ex- PENNSYLVANIA GLASS SAND CORPORATION (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, Sixth Floor, 707 North Calvert Street, Bal- timore, Maryland 21202, Telephone 962-2909.