Richardson Transfer & Storage Co., Inc.

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richardson Transfer & Storage Co., Inc. and Robert L. Woodin Richardson Transfer & Storage Co., Inc. and Calvin K. Williams Richardson Transfer & Storage Co., Inc. and Ronnie E. Gipe Richardson Transfer & Storage Co., Inc. and Truck Drivers and Helpers Local Union 696 , affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen , and Helpers of America, Petitioner. Cases 17-CA-3642-1, 17-CA-3642-2, 17-CA-3642-3, and 17-RC-5826 June 10, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On March 26. 1969, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action. as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions only to certain portions of the Recommended Order and Notice of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the General Counsel's limited exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and orders that the Respondent, Richardson Transfer & Storage Co., Inc., Salina, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein: 1. Substitute the following for paragraph 2(b) from the Trial Examiner's Recommended Order: "(b) Offer immediate, full reinstatement to their former or substantially equivalent positions, without prejudice to existing wage rates, seniority, and other rights, privileges, benefits and emoluments, to all employees who went on strike on July 31, 1968, Darlene Hatfield, James McLaughlin, Shannon Thompson, Fran Wyatt, and all other similarly situated employees, and make each of them whole for any loss of earnings, together with interest, resulting from Respondent's failure and refusal to reinstate them on and since August 6, 1968, as more fully set forth in "The Remedy" section of this Decision; discharging, if necessary, any replacements or other employees hired in their stead." 2. Add the following to the third line of the seventh indented paragraph of the notice, after the name Wyatt. "and all other similarly situated employees,". TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT STANLEY N. OHLBAUM, Trial Examiner : These unfair labor practices proceedings, involving alleged violations of Section 8(a)(1) of the National Labor Relations Act (29 U.S.C. Sec. 151, et seq., as amended; "Act"), consolidated for hearing with a related Representation case' were tried before me in the Saline County Courthouse, Salina, Kansas, on November 13-15, 1968, with all parties participating and represented throughout by counsel. The documentary and testimonial evidence, as well as the parties' arguments and briefs, having been carefully considered, upon the entire record = including my observation of the witnesses I make the following: FINDINGS AND CONCLUSIONS 11. PARTIES; JURISDICTION Respondent, a Kansas corporation engaged in the business of moving and storing household goods, with its main office located in Salina, Kansas, annually receives gross revenues exceeding $50,000 for the transportation of household goods from points outside of the State of Kansas. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that assertion of jurisdiction herein is proper. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issues presented are: (1) whether, in violation of Section 8(a)(1) of the Act, Respondent on 'The consolidated complaint and consolidation order, dated October 3, 1968, of the Board's Seventeenth Regional Director (Kansas City, Missouri) in the unfair labor practices proceedings are based upon charges filed separately on August 13, 1968 , by alleged dischargees Woodin, Williams, and Gipe . By further order of the same Regional Director, dated October 30, 1968, the related issues arising out of Representation Case l7-RC-5826 were consolidated for hearing with the unfair labor practices proceedings. The Representation case issues involve an election contlucted by the Board 's Regional Director on October 18 pursuant to his Decision and Direction of Election dated September 27 based upon the Union's petition filed on August 22, 1968. 'Hearing transcript as corrected by my March 5, 1969 , order on notice. 176 NLRB No. 64 RICHARDSON TRANSFER & STORAGE CO., July 29 and 30, 1968,' discharged, and has since failed and refused to reinstate, four employees° because they participated in protected concerted activity; (2) whether Respondent's employees went on strike on or about July 31, and if so the cause and nature of that strike and why it continued, and whether in view thereof striking employees have the right to be reinstated to their jobs; and (3) whether certain ballots cast under challenge on October 18 in a Board-conducted Representation election are valid and should be opened and counted. B. Background Respondent, established some 50 years ago in Salina, Kansas, is still in the warehouse and moving business there, in a 50,000 square feet 5-story building. Its primary activity consists of the packing, crating, and moving of household goods of servicemen and their dependents stationed at nearby Armed Forces facilities, perhaps principally Schilling Air Force Base or "Schilling Manor." These household goods are usually packed, for storage or shipment, by Respondent's female part-time employees,' hauled locally by Respondent's warehousemen-truckdrivers,' and long-hauled in 32 states by Respondent's over-the-road vanline drivers. At all times here material, the active operating head of Respondent's business was its principal and Managing Director, Mrs. Viola Larsen. Her husband, Harry Larsen, apparently formerly an over-the-road truckdriver, has been less active in the actual day-to-day operation of the business; according to Mrs. Larsen, he was "in charge of agency relations, estimates and sales locally." Next under Mrs. Larsen operationally is Roy L. Fritz, with the title of Dispatcher; under Fritz, Warehouse Foreman George Montis. The full rank-and-file warehouse workforce comprises less than a dozen employees. C. Events of July 27 - August 2 1. Saturday, July 27' On Saturday, July 27, Respondent' s warehouse employees had a discussion and decided to "do something with regard to . . wages and working conditions" by "approach [ing] Mrs. Larsen [Respondent 's principal and Managing Director] and ask[ing ] if we could speak with her and tell her our dissatisfaction and see if we could work out some plan that satisfied the entire warehouse." Matters of concern to the employees included the fact that, unlike other warehousemen in Salina who were being paid $1 . 75 and more per hour, Respondent's warehousemen were only being paid $ 1.60 per hour (the Federal minimum wage ) notwithstanding that Respondent was "the largest company" with "the largest moving 'All date references are to 1968. 'Robert L. Woodin, Calvin K. Williams, Ronnie E . Gipe, and Jess Goodwin Although all except Goodwin filed charges with the Board, each charge as well as the complaint encompasses all four. 'According to uncontradicted testimony of General Counsel witness Shannon Thompson , all of the packers are women with the single exception of Carl Smith , "an old man who packs and drives the truck." 'As explained by General Counsel witness Williams, Respondent's warehousemen's duties include loading and unloading trucks , driving locally, stacking goods in the warehouse, and taking inventories. 'Based upon credited testimony of General Counsel witnesses Williams, Woodin , Thompson, and Montis. 505 business" in town; and the manner in which hours of work were assigned, so that an employee might work 12 hours on Saturday, and 12 or 15 in the first days of the week, aggregating 40 hours early in the week followed by layoff for the remainder of the week and hiring of others at regular rather than overtime pay.' Accordingly, about 10 of the warehouse employees, of a total complement of 11 or 12, signed union cards; and, as stated, it was decided to approach Respondent's principal and active operating managing director, Mrs. Larsen, to discuss these matters. 2. Monday, July 29' In accordance with this decision of the warehouse employees, at about 8 a.m. (the usual starting time) on the following Monday morning, July 29 (the next working day after the employees' Saturday meeting), 4 of Respondent's warehousemen - Calvin K. Williams, Robert L. Woodin, Ronnie E. Gipe, and Jess Goodwin - presented themselves outside of Mrs. Larsen's office in the warehouse for the purpose of speaking to her regarding "wages, working conditions, and hours."10 After about a half hour, they asked receptionist Mrs. Burch whether Mrs. Larsen was there yet and were told she was not." 'In partial corroboration of the foregoing, Respondent 's Warehouse Foreman Montis testified that on Saturday, July 27, he by chance encountered some drivers and employees , including the four warehousemen here involved, at a tavern where he had dropped in with his wife. Apparently the men indicated they were in process of organizing and wanted to know where Montis stood . Montis indicated he did not know, that although he was "sympathetic" he "had an obligation to the company," and he "discouraged them " However, the men "said that they absolutely weren't going to work any further until they had conversation with the management to try to iron out the problem they had, wage, hours, working conditions However, I dismissed it as a beer talk . it boiled down to the fact they were unhappy with their situation , and they wanted to see management as a body [on Monday , July 29]... and talk over the situation they were in , and see what they could do to iron it out." 'Based upon testimony of General Counsel witnesses Williams , Woodm, and Montis, and of Respondent's witnesses Burch , Dulohery, Talbert, Fritz, and Mrs. Larsen. "The four warehousemen had first notified Warehouse Foreman Montis that "we were not going to clock in until we had talked to Mrs. Larsen," since "We didn't want to talk to her [Mrs. Larsen] on their [Respondent's] time " Corroborating this, Warehouse Foreman Montis testified that at around 8 a.m. on Monday, July 29, the four warehousemen, with Williams as spokesman , told hum "that they wanted to have a conversation with Mrs. Larsen before they went to work I went to Mr Fritz [i e., Respondent's dispatcher and Montis' superior] and explained the situation. ... That I had some men that wanted to have a conference with the management to iron out some difficulties over wages and hours before they went to work." Dispatcher Fritz denied that Montis told hum this; and insisted that although he, as the man directly in charge, under Mrs Larsen, of all Company operations, was told by Montis later that morning that the four warehousemen - comprising about the total warehousemen work force - had "walked out," he neverthesless not only did nothing about it but did not so much as mention it to Mrs. Larsen since he "didn't think it was [my] responsibility to report this to Mrs Larsen" and that he did not even ask Montis why the men had walked out since he was "not at all. . . interested." Based upon Fritz's foregoing testimony , which I find it difficult to believe , and Fritz's testimonial performance generally, I credit Montis' testimony that he informed Fritz at the start of the working day on Monday, July 29, that the four warehousemen wished to speak to Mrs. Larsen at once about wages and other work problems "Describing the configuration of her office and outer rooms, Respondent's principal, Mrs. Larsen, testified she occupies a "private office or conference office [and also an adjoining room] . . next to [receptionist Mrs.] Della Burch," who sits "immediately inside the front door"; that paymaster or payroll clerk Mrs . Talbert has a separate office, to reach which it is necessary to go through two doors - including an 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When, shortly thereafter, the waiting employees learned from a truckdriver that Mrs. Larsen had left with receptionist Mrs. Burch for coffee, the four warehousemen also left for coffee .' 2 Returning to the warehouse, the four men waited outside of the building for Mrs. Larsen to return . They there told truckdriver Hoffman that they were waiting for Mrs . Larsen to "see if we couldn't get something straightened out about working conditions." Soon Mrs. Larsen's husband drove up, alighted from his car, and started to walk toward the four waiting warehousemen , but was intercepted by truckdriver Hoffman, who walked up to Larsen and spoke to him. At this point, Mrs. Larsen arrived with Mrs . Burch (the receptionist). Alighting from her car, before any of the four employees could say anything to her Mrs. Larsen told them , "You can all go home . We don' t need you."" Although Larsen indicated to his wife that "they just want to talk," Mrs. Larsen and Mrs . Burch merely strode into the building , leaving the four employees standing together outside." Thereupon, considering themselves discharged by Mrs. Larsen, the four warehousemen went to paymaster or payroll clerk Mrs. Talbert to collect their pay for their previous Saturday's work.16 Mrs. Talbert "looked at us funny . . . . [and] said, `Are you quitting?' We said, `No, we are fired.' "' f office in whici bookkeeper Mrs. Dulohery works - from Mrs. Burch's location . Mrs. Larsen conceded on cross-examination that receptionist Mrs. Burch knew she was in that morning ; nevertheless, Mrs. Larsen insisted that nobody told her that the men were waiting to see her. Conceding that she saw the four employees in question in the reception room on Monday morning before she went to coffee with Mrs. Larsen, Receptionist Mrs. Burch testified that she could not remember how long they stayed there and that she could not recall whether any words passed between them and her; and she testified that she could not remember whether they asked to see Mrs. Larsen. Comparing testimonial demeanor and considering Mrs. Burch's allegedly deficient powers of recollection, I find that the four warehousemen did in fact indicate to her that morning that they wished to see Mrs. Larsen and, from what earlier and later transpired, that Mrs. Larsen knew they were there to see her. Although Mrs. Larsen repeatedly denied that anybody told her on Monday, July 29, that the warehousemen wanted to see or talk to her , during cross-examination Mrs. Larsen testified that "I don't recall anyone mentioning that they wanted to see me on Monday [July 291." (Emphasis supplied.) "The testimony of Mrs. Larsen and of receptionist Mrs. Burch corroborates that they went out together for coffee, after Mrs. Larsen had gone over her mail and engaged in some telephone conversations, including one with her husband , whom she arranged to meet at coffee . According to both Mrs. Larsen and Mrs. Burch, this was around 9:30. Mrs. Burch testified she saw the four employees in the reception room "close to 8:30," which was about the time of Mrs. Larsen's arrival according to the latter's testimony. Mrs. Larsen conceded that she considers it serious and significant for four employees to "quit" (in her usage) in a group. At the very least, it must have been extraordinary for four warehousemen - practically the full complement of warehousemen - to present themselves at her office the first thing Monday morning to talk to her as a group. Nevertheless, Mrs. Larsen insisted in her testimony that she did not 'discuss any business' with Mrs. Burch at coffee. Mrs. Burch, however, testified that she was unable to recall whether the four employees were mentioned or whether the Larsens (Mr. Larsen had joined them as arranged ) asked what was going on, during their 45-minute coffee session. Larsen did not testify . Under the circumstances, and considering what had discussed or even mentioned. "Respondent's pay week ends Friday. "According to Mrs. Talbert, the four employees came into her office around 8:30 with their timecards and informed her that they had "quit" and would be back in an hour to pick up their checks . The testimony of warehousemen Williams and Woodin (in part corroborated by Warehouse Foreman Montis) indicates that they merely turned in their timecards around 8:30 to cover their previous Saturday's work, in accordance with normal warehouse routines, and that they did not tell Mrs. Talbert at that The four warehousemen then sought out and acquainted Warehouse Foreman Montis with these facts. Montis describes his reaction as, "You could have knocked me over. . . . I was stunned." Further according to Montis' testimony, he returned to the warehouse, where Mrs. Larsen "told me [Montis] that she had a problem and she wanted me to find out who was involved, and especially the ringleader, and report to her that afternoon.... I told her I would." That afternoon, he saw the four employees (who had returned for their pay, which was not ready). As recounted by Montis: . they were stunned, I was stunned, nobody knew which way to go. The main thing I was interested in was the terrific work load we had. I had to have the manpower to carry on the task I was assigned. The main point in my mind at the time was to get the men back to work and get this thing settled up and get the work load off our backs. . . . I asked if they would come back to work the next morning, to see if I could talk to Mr. Fritz and Mrs. Larsen to straighten the thing out. The warehousemen agreed to return to work the following morning (Tuesday, July 30), which they did. 3. Tuesday, July 30 In accordance with their arrangement with Warehouse Foreman Montis on the preceding afternoon, the four warehousemen reported to work at the warehouse at 8 a.m. on Tuesday, July 30. Credited testimony of warehousemen Williams and Woodin indicates that at that time Warehouse Foreman Montis, after checking with Dispatcher Fritz, told the four warehousemen to "go to work" and assigned to them various work tasks which they proceeded to fulfill. The warehousemen's testimony to this effect is corroborated by credited testimony of Warehouse Foreman Montis, who swore that "When they [i.e., the four warehousemen ] came in , I [Montis] asked them if they were ready to work and they said they were. I reported to Mr. Fritz and told him that the men had left the job Monday or were fired, however it happened to be, were back at the office and were ready to go to work. And he [Fritz] said, `Do you feel that you really need them?' I answered, `Why, yes, we need them.' And he [Fritz] said, 'O.K., put them back to work.'. . . I put them to work. . . . got the work load allocated and got Mr. Williams on the road, and the rest of the employees taken care of. ..." Later, however, when Montis went to see Fritz about an unrelated matter, a telephone call was received by Fritz, seemingly from Mrs. Larsen, and Montis heard Fritz say that "they [i.e., the four warehousemen] were back to work and we needed them." (or at any other) time that they had "quit" or were "quitting." Testifying as Respondent's witness, Respondent's bookkeeper Mrs. Dulohery, whose office is only 8 feet from that of Mrs. Talbert, stated she saw the four employees go into Mrs. Talbert's office at some unremembered time that morning and "ask for their pay," without any mention of "quitting." Based upon comparative testimonial demeanor observations , I have no hesitation in believing Williams in preference to Mrs. Talbert, of whose veracity I formed an indelibly poor impression , particularly in view of the attempts to mislead through deliberate alterations of Respondent's timecard records - impounded in evidence here - as will be described. Furthermore, it indeed seems strange that if the four employees comprising virtually the entire complement of warehousemen announced they were "quitting," Mrs. Talbert would not (as she claims) inform Mrs. Larsen until two hours later, after going out for coffee. (According to Mrs. Talbert, when she informed Mrs. Larsen at 10:30 that the men had "quit," Mrs. Larsen "was lust as dumbfounded as I was, really." It is puzzling why Mrs Larsen should be "dumbfounded . . really," since she of course then already knew all about the situation, according to her testimony.) RICHARDSON TRANSFER & STORAGE CO., 507 Hanging up the telephone, Fritz explained that Mrs. Larsen had been on the other end of the wire, and told Montis "to go out in the warehouse and fire the men, the four men, by name, and get them off the property. I [Montis] said, `That is an awfully big order .' And he [Fritz] said, `If you have any trouble, call the police.' And I said, 'O.K., I will do it .' " Montis thereupon told the employees that " I had been ordered to fire them . I wasn't doing it out of spite . It was just my job. I had to get them off the property at once and if they didn't go , I was to call the police." He told Woodin to find Williams and have him park the truck with its load. According to Warehouseman Woodin: I [Woodin] believe we were unloading a truck and I had worked probably an hour when Mr. Montis came out and said that we all had to get off the dock , that we were fired and if we did not leave, he would have to call the police and he did not want to do that, so he asked me if I would go out to the base and have Calvin [Williams] bring the truck back. . . . We went out to tell Calvin [Williams] to bring the truck back. . . . He [Williams, on his return to the warehouse ] parked the truck and went to the dock and unloaded at the door and started to take the case in and George [Montis] said no, just to leave them, to him , it would be best not to come in the warehouse.... According to another of the warehousemen , Williams: It was close to 9 o'clock and I [Williams] had just finished unloading this packing material and spreading it around and my car drove up behind the truck. There was Bob Woodin and Jess Goodwin and Ronnie Gipe. I walked over to the car and I was told to take the pickup back. We were fired again . I was to give the keys to George [Montis] and get off the property. I proceeded to do this.... I parked the truck in the normal parking place on the lot and walked around to the back dock and yelled at Mr. Montis. He was on the warehouse floor. I started to step up on the dock. He told me not to. He said, "You had better stay out of the warehouse. Just give me the keys and get off the property . If there is any trouble I have to call the police." As of this time, according to the testimony of Warehouse Foreman Montis, the supervisor of the warehousemen , the four warehousemen in question had been "good employees," with no intention on his part or indication to him to terminate them. Upon attempting to obtain their pay - for the time worked that day (Tuesday, July 30) as well as the preceding Saturday (July 27 ), for which they had not yet been paid, the warehousemen were informed by paymaster Mrs. Talbert that "we [warehousemen ] couldn't pick up our checks until we talked to Mrs. Larsen ." Warehouse Foreman Montis' credited testimony establishes that "Mrs. Larsen asked me to verify the time that they worked" on Tuesday morning, which he "verified [as] the one hour," and the men later "told me they were paid." It is appropriate to pause at this point to consider some of Respondent's contentions concerning the aforedescribed events of Tuesday morning. Respondent appears to contend that Montis lacked authority to put the warehousemen back to work on Tuesday morning; that neither Fritz nor Mrs. Larsen knew that the warehousemen had returned to work on Tuesday morning; that the warehousemen did not in fact work for Respondent on Tuesday morning; and that the warehousemen were not paid by Respondent for working on Tuesday. Credited evidence" establishes that, as Warehouse Foreman, Montis not only assigned and directed the work of warehousemen and told them what to do , but also possessed and personally exercised the power to hire and fire employees as well as responsibly so to recommend to Dispatcher Fritz (who "is in charge of the operation of the company in the absence of Mr. or Mrs. Larsen"), who "took my [Montis'] judgment" in that regard. On the question of Montis' authority to restore the warehousemen to work on Tuesday morning as he did, Dispatcher Fritz first testified that he (Fritz) "had the authority . . . . to put these four employees back to work without conferring with Mrs. Larsen" and could not answer as to whether Montis (Fritz's subordinate) had the authority since "I can't speak for Mr. Montis." However, Fritz later conceded that he (Fritz) not only had the authority to restore the men to work and to authorize Montis to do so, but that Montis also had that authority." Mrs. Larsen, after conceding that she "did not tell him [Montis] not to" restore the warehousemen to work on Tuesday morning, further conceded that "perhaps it was . [within Montis' authority to call these four men back if he wanted to, although] it was possibly not exercising too excellent a judgment . . . ." On cross-examination, Mrs. Larsen unreservedly conceded that "He [Montis] had the authority to put the [four warehouse] men to work." Fritz conceded on cross-examination that around 8 a.m. on Tuesday, July 30, Montis informed him that the four warehousemen "were back to work " and that "I [Fritz] didn't comment. . . . I didn't give it any thought ...." According to Fritz , he (Fritz) was "not at all . concerned about it." Fritz further conceded that he did not tell Montis that he [Fritz] did not want the four warehousemen in question working there, until he received a telephone call from Mrs. Larsen in which she said this;19 according to Fritz, he had not indicated to Montis not to restore the men to work since "I [Fritz ] was disconcerned about them. . . [and] . . . didn't care if they worked or not." According to Fritz, while Montis was in his office on Tuesday morning" he received a telephone call from Mrs. Larsen "about those men. . . . She told me not to put them back to work ." 21 He passed this on to Montis - "Testimony of General Counsel witnesses Williams, Woodm, and Montis; and of Respondent's witnesses Mrs. Larsen and Fritz. "This is not to say that Fritz was consistent in this regard . Fritz weaved to and fro in his testimony to the extent of contradicting or unconvincingly attempting to qualify much that he said, conveying the impression of an ubiquitous prevaricator unskillfully attempting to tailor his testimony to accord with the supposed best interest of his employer . For example, at one point he even swore, "I don't do anything on my authority. I am not that well qualified." At one juncture or another he oscillated in all directions on the question of Montis' authority to restore the men to work, saying that Montis had it, did not have it, "It could have been changed," it "was changed" (without furnishing any factual substantiation ), and that he (Fritz) did not know. Upon the basis of the foregoing and the highly unpersuasive character of Fritz's testimony in numerous other respects (some to be detailed), I was finally left in the state of mind where I would have difficulty in believing almost anything Fritz testified to here unless convincingly independently corroborated. "According to Fritz, this telephone call came in coincidentally while Montis was in the office for the first time telling him the warehousemen were "back to work"; but according to Montis it occurred while Montis was in Fritz's office for an unrelated purpose after Montis had already put the men to work in accordance with Fritz 's approval. I credit Month. "See fn. 19, supra. " Neither Fritz, Mrs. Larsen, nor anybody else indicated how Mrs. Larsen had learned or why she supposed, that the men were working or 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who, however, as will be recalled, had already restored the men to work with Fritz's express approbation. Although there can be no question that the four warehousemen actually worked in their jobs for Respondent for about an hour on Tuesday morning until ordered to stop and leave the premises, and also no question that they were paid for that time, Respondent, in an obvious attempt to mislead, crudely altered its timecards to bolster its contention that the men were not paid for that hour's work on Tuesday and therefore did not work on that day. Respondent did so by changing the amount of time shown by the timecards as having been worked by these four warehousemen on the previous Saturday so as to reflect an extra hour on that day. The alterations are plain, deliberate, and unmistakable. The original altered timecards have been impounded for the use of any reviewing authority and for any other purpose deemed appropriate. According to the testimony of Respondent's paymaster or payroll clerk Mrs. Talbert, the four employees' timecards (Resp. Exhs. 2A2, 2B2, 2C2, & 2D2) in their present form do not "reflect any payment for any work on Tuesday [July 30].... [and] reflect payment for Saturday [July 27] work only." Attached to each timecard is a white "face sheet" which is "in my [Mrs. Talbert's] handwriting with their [warehousemen's] signatures at the bottom, `Accepted as correct,' by each of the four individuals." Mrs. Talbert conceded that there is an exact yellow copy of each, which may be retained by the employee if desired. One such carbon copy was produced at the trial by one of the four employees, who had retained it. The original does not correspond to the copy, the original having been changed by the Employer after having been signed "Accepted as correct" by the employee. It is perfectly apparent and I find that, as contended by General Counsel, Respondent altered the would be in to work that morning . On cross-examination , Fritz modified the testimony he had given on direct examination so as to state that when Mrs Larsen telephoned him that morning she first "asked me [Fritz] who showed up for work" and that when he thereupon informed her that the four warehousemen had, she "told me they were not to work ," which instructions he transmitted to Monts but that he was unable to "remember" what else he may have told Montis . The character of Fritz 's general testimony may be savored by his response to the simple question of whether the four warehousemen worked on Tuesday morning - which they plainly did as shown above, until actually called off thew jobs and ordered off the premises Q. [By Counsel for General Counsel] Do you know, Mr. Fritz, whether or not those four employees worked that Tuesday9 A [By Fritz] No, they didn't work Tuesday. Q. Do you know that? A. Insofar as I know , they didn't work. Q. And from where did you get that information? A They were not to work, anyhow. Q. My question is, do you know whether or not these four employees worked Tuesday? A. They could have worked somewhere else Q. For Richardson Transfer. A. No, they did not work for Richardson. TRIAL EXAMINER There is a big difference in saying they were not to work and saying that they did not work . I think counsel is interested and I am , too, in finding out from you whether they worked at Richardson on Tuesday. THE WrrNESS . They didn 't work , as far as I know TRIAL EXAMINER - As far as you know? THE WrrNESS . Right. TRIAL EXAMINER That means you don't know one way or the other other? THE WrrNESS: I didn't work them TRIAL EXAMINER You didn't work them , is that what you mean?" THE WITNESS' Right. entries on the white "face sheets" after they had been signed "Accepted as correct" by the four employees, and also on the original timecards, in a crude attempt by Respondent to support its claim that the four employees in question were paid on Tuesday (July 30) only for work on the preceding Saturday (July 27) and not for any work on Tuesday (July 30). Thus, for example: (1) The entries on the white "face sheet" (Resp. Exh. 2D1-Ident.) allegedly signed "Accepted as correct" by warehouseman Woodin do not correspond to those on the carbon copy thereof (G.C.Exh. 3) produced by Woodin; among other things, the date "July 29" (sic) has been added on the original signed "face sheet" after the number of hours ("12") shown to have been worked. The same changes were made on the original "face sheet" of warehouseman Goodwin (Resp. Exh. 2C1-Ident.)." (2) The original signed "face sheet" of warehouseman Gipe clearly shows the number of "Total Hours" for Saturday, July 27, to have been "12 1/4," visibly overwritten as "13 1/4." (Resp. Exh. 2A1-Ident.) (3) All four original timecards of the four warehousemen in question (Resp. Exhs. 2A2, 2B2, 2C2, and 2D2) show unquestionable indications of having been tampered with and changed so as to reflect one alleged hour later clocked out on Saturday, July 27 (22:00 or 10 p.m., rather than 21:00 or 9 p.m.) and one alleged additional hour worked on that day. The timecard alterations were so crudely manipulated that, for example, on the original timecard of warehouseman Woodin (Resp. Exh. 2D2), although the total hours on the right side of the card were changed from "11:06" to "12:06," the "Daily Total(s)" is still shown as "11:06" at the bottom center of the card through neglect to make the corresponding alteration there; warehouseman Goodwin's original timecard (Resp. Exh. 2C2) shows an unmistakable alteration in two places of total hours worked on Saturday, July 27, from "8:51" to "9:51"; and the original timecards of warehousemen Williams (Resp. Exh. 2B2) and Gipe (Resp. Exh. 2A2) likewise show unmistakable alterations of hours worked on Saturday, July 27, so as to reflect an additional hour in each case. (4) The original timecards of 3 of the 4 warehousemen in question show handwritten (rather than timeclock-printed) entries of the quitting time on Saturday night (July 27) since, according to Mrs. Talbert, "the office was not open for the men to punch it when they got out, off of work." In the case of Goodwin, however, apparently the office was still open;" since his quitting time on Saturday, July 27 - alone of the 4 warehousemen in question - was 5:19 p.m., which is timeclock-printed. Notwithstanding that Goodwin's timeclock-printed timecard (Resp. Exh. 2C2) clearly shows he worked only 8 hours and 51 minutes on that day and his morning and afternoon hours are so totaled ("4:02" plus "4:49" on the card itself, presumably by Mrs. Talbert, who swore she made these entries), Goodwin was nevertheless paid for an extra hour "Cross-examined on voir dire regarding this, Mrs Talbert conceded she had altered the original "face sheet," swearing that she did this "for identification purposes only . because at the time that they picked this check up we didn't even dream that anything like this would come up, so I did this [added the words] on here [original, after it had been signed by employee] " Mrs Talbert then stated that she did this "Just before when we were getting this paperwork ready for this hearing I don't generally do those things, no I did this time for this hearing only" Although Mrs Talbert testified that the source of her information for the "July 29" entry which she thus added to the original "face sheets" after the employees had signed them, was the original payroll cards, it clearly appears from each of those original payroll cards ( Resp Exh 2A2, 282, 2C2, and 2D2) that nowhere on those cards does the date "July 29" appear, but only "July 27 " "Mrs. Talbert indicated it is usually open until 6 p.m. RICHARDSON TRANSFER & STORAGE CO., nowhere shown on his timecard to have been worked on Saturday, July 27; the total "8:51" hours having been crudely altered in two places thereon to "9:51" hours. Mrs. Talbert's absurdly false explanation for this was that "I probably readded it and added it wrong." As for the altered figure "22:00" overwritten on the other three timecards, Mrs. Talbert conceded that "I did that," but when asked "What was written on there before you wrote the 22:00," she replied, "I can't say, sir." Later, however, she admitted that at least one of the timecards (that of Williams, Resp. Exh. 2B2) would indicate that it was 9 p.m. (i.e., "21:00" in her system of denotation), or, one hour earlier before altered so as to make it one hour later. Confronted with this admission, she then stated that she changed Williams' timecard from 9 to "22:00" (i.e., 10 p.m.) so as to pay him for an extra hour for Saturday because the other 3 warehousemen had worked until then. This is, of course, untrue; indeed, Goodwin's timecard clearly establishes that he worked only until 5:19 p.m. Asked why she "corrected" and paid Williams for an extra hour's work on Saturday, July 27, which he himself was not claiming, Mrs. Talbert's unconvincing reply was, "It is better to give an extra hour when in doubt than it is to take away an extra hour." Mrs. Talbert later conceded that she changed all of the timecards to reflect an additional hour of work for Saturday, July 27; asked why she did this, her reply was, " I can't answer that, sir." Finally, Mrs. Talbert, Respondent's paymaster or payroll clerk of 16 years' standing, contended or conceded that she made an error of one extra hour on each of three of these timecards on Tuesday, on the simple arithmetic involved. _' Upon the record as a whole, I find that Montis possessed in independent authority to restore the four warehousemen in question to work on Tuesday morning, July 30; that Montis in fact exercised the authority, with the express approbation and further authorization of his immediate superior, Fritz - who also possessed such authority - to and did in fact restore the four warehousemen in question to work on Tuesday morning, July 30; that the four warehousemen in question, pursuant to such authorized restoration to work, in fact resumed their jobs and worked for Respondent for approximately l hour on Tuesday morning, July 30, until they were thereupon summarily discharged by Respondent as described, upon direct order of Mrs. Larsen; that each of the four warehousemen in question was paid by Respondent for said hour of work on Tuesday, July 30; and that Respondent thereafter, in an attempt to misrepresent and mislead, deliberately altered its payroll cards for the four warehousemen so as to omit therefrom or not to show said hour's work performed on Tuesday, July 30, and so as to make it appear that said hour had been worked by each of the four warehousemen on the previous Saturday, July 27. We return now to the described discharge of the four warehousemen on Tuesday morning, July 30. As has already been shown, when they called for their pay they were told by Mrs. Talbert that they would first have to speak with Mrs. Larsen. After waiting an hour to see Mrs. Larsen, the four were admitted to her office, where she started by telling them, "You all no longer work here. You won't get your jobs back, but I want to know what the problem is." The warehousemen "told her that "Under the circumstances, Mrs. Talbert's testimony may best be characterized as little other than a tissue of fabrications. 509 we just wanted to talk to her. She had not given us a chance." After the employees "told her we would appreciate higher wages," Mrs. Larsen informed them that Respondent could not do this in view of losses. There ensued a discussion of work methods and work caliber in the warehouse, as well as of the hours of work. "She [Mrs. Larsen] told us if we were not happy and wanted more money we could go somewhere else. I [Williams] said it seemed to me that we were working hard and doing a good job, that happy, satisfied employees are going to do a better job. She asked why it was just the four of us and I informed her it was not just the four of us, that we were speaking as representatives of the group. She didn't appreciate this. She said, `If the whole group wanted to talk to me [Mrs. Larsen], they could come in and talk to me one at a time after hours.' . the conversation.. . lasted approximately an hour. The last thing I can remember that was said was that she thought we had shown very, very poor judgment in our method or mode of trying to approach her, such as to say it was on a city street in Salina because we were at the front of the building. I told her she had shown equally poor judgment in her method of discharging us. That ended the conversation and we walked out and got our checks and left the building." During this conversation, according to warehouseman Williams, Mrs. Larsen "inferred we weren't fired, that when people walked out on her they quit. . . We said we did not walk out, we wanted to talk. . .. She said we showed poor judgment in not reporting for work on a Monday morning and leaving customers hanging, and we said she [i.e., we! had checked and there were no pressing pickups and there were no pressing jobs and what better time was there than Monday morning to get something worked out." Mrs. Larsen's account of her meeting with the four warehousemen in her office on Tuesday, July 30, is, that her first words to them were, "What is this about?" Then, according to Mrs. Larsen: I told them they used poor judgment in that they appeared beside the building instead of coming in or asking for a conference, and that I did not conduct conferences beside the building.... One of them, either Calvin Williams or Bob Woodin, said, `We would like to have more money or longer hours.' One of the others replied that they did not think it was fair to have to work on Saturday and be laid off on some other day of the week.... About half way through the conversation, as I recall it, I asked why they were concerned, since they no longer, since you no longer work here. . . . I don't recall [their response to that].... I don't recall [any of them] stating they had been discharged. According to Mrs. Larsen, there followed a discussion regarding various work problems, including increasing wages from $1.60 to the $1.75 per hour being paid by other moving companies in town, to which Mrs. Larsen's answer was that "perhaps they could get a job at one of these warehouses that paid higher than we did." She then instructed paymaster Mrs. Talbert to issue the men their checks paying them off. The four warehousemen were then given their terminal paychecks, which, as already shown, included one hour's work for that (Tuesday, July 30) morning and the hours worked on the previous Saturday (July 27). On that evening, Tuesday, July 30, a meeting of all of 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's warehouse employees25 was held in warehouseman Woodin's home, after the others (i.e., other than the four warehousemen discharged as described) had finished work around midnight. According to warehouseman Williams, there ensued a discussion of "our difficulties, the hours, wages, and working conditions. . . . [Employee] Sandy Brown said that it seemed unfair to her that the four of us [i.e., Williams, Woodin, Gipe, and Goodwin] would put our jobs on the line and lose our jobs to try to help the group and for us to do this the group ought to back us and a vote was taken. Each person had a say. We all spoke our piece and our ideas on the matter. A vote was taken and it was decided that no one would work until we all worked. When the four of us were re-employed the whole warehouse crew would be back. The big push was getting us back to work. . . The decision was unanimous that the next day we would not go to work until those of us were taken back to work. . . . Everything said . . . was along the same line. What had happened was unfair." According to discharged warehouseman Woodin (in whose home the meeting was held): We were all teed up about the reason four of us were fired and as we said before, that we had all decided that the four of us would talk to Mrs. Larsen, so this was not sitting very good with anybody and we talked more or less about this and what we wanted, different wages, and we decided that nobody would work Wednesday morning if she would not put us all back to work. Female employee Shannon Thompson, who was also among those at the meeting, described it as follows: We decided that we would not go back to work until they had been given their jobs back, because they had put their jobs on the line for us, because we all wanted it and we decided we would go out on strike and see if we could not go back. We wanted to go back to work, but we wanted better wages and working conditions for the men and for ourselves. Further confirming the general tenor of the employees' meeting following the described discharge of the four warehousemen, Warehouse Foreman Montis testified that he worked at the warehouse that night (Tuesday, July 30) until midnight since "We didn't have adequate manpower to cover the work load." As Montis left in his car, he saw warehouseman Williams and others in a car across the street and still another car which followed his, until Montis stopped about a block away.26 The employees invited Montis to accompany them to Woodin's home, which Montis did. There, according to Montis: ... the general gist of the discussion was the people were sore because the four men [i.e., Williams, Woodin, Gipe, and Goodwin] had been sent out and fired for trying to speak for what they told me [Montis] was the entire group and they were quite upset that night. And after listening to them for a while, I didn't want this thing to erupt to something that couldn't be controlled, so I more or less pleaded and I talked to them, told them what they were doing, to the best of my knowledge, and they held a vote and decided that they weren't going to work the following day until the men were reinstated. "Attending were male employees Williams. Woodin, Gipe, Goodwin, and McLaughlin . and female employees Thompson. Brown, Hatfield, and Wyatt, or a total of nine employees On invitation of the rank-and-file employees, Montis also was there "When Montis got out of his car , he observed Mrs. Larsen and Fritz "standing in the middle of the street." 4. Wednesday, July 31 On the following day, Wednesday , July 31, Respondent' s warehouse employees" picketed with signs stating: "Richard[son] Transfer & Storage warehouse on strike. No talk, no work" and "One for all, all for one. It is all or none." That afternoon, a meeting was arranged between management and the striking employees, with Williams and Montis" designated by the employees as their spokesmen." When Williams and Montis proceeded into the warehouse for that purpose that afternoon, Respondent declined to speak to Williams, and Montis at the same time. According to Williams, when he and Montis were seated outside the office waiting for the conference to start, "After a few minutes Mr. or Mrs. Larsen came out and said they would speak to Mr. Montis only, so Mr. Montis went in the conference room, Mrs. Larsen's office as you call it. He [Montis] was in there for approximately an hour." Respondent's Warehouse Foreman George Montis corroborated Williams' testimony that outside of Mrs. Larsen's office on Wednesday afternoon, July 31, he and Williams were told that the Larsens "would speak to me [Montis] only," or that they would see the two of them only "separately." For this reason Montis thereupon entering Mrs. Larsen's office alone, there found, in addition to the Larsens, Dispatcher Fritz and a stenographer (Mrs. Virginia Hill, Mrs. Larsen's sister). Montis described the lengthy discussion which ensued. "I [Montis] told her [Mrs. Larsen] that the first point I felt was necessary that there be no reprisals for the men walking off the job, or however it happened to be. They all go back to work." Montis also suggested a 15-cent increase to $1.75 per hour for the warehouse employees, as well as "a little better conditions to work under, especially for the female employees." Mrs. Larsen stated that "the men [picketing] across the street weren't qualified, for one reason or another," including that one "was a trouble-maker." Dispatcher Fritz stated "that according to the law, he [Fritz] was the only legal bargaining agent for those particular people, the group that was in the street, the corner. . . the strikers. . . I [Montis] laughed: "Well, if you [Fritz] are the only legal negotiator, maybe I [Montis] had better change chairs and you can negotiate and I will sit here and watch." And he [Fritz] said, "I [Fritz] will negotiate with them one at a time." And I [Montis] said, "Nothing doing. Negotiate with the whole bunch or none at all." He said, "Under the Taft-Hartley law I can have you put in jail." And I said, "I am willing to go to jail if that is what I have to do.". . Then the conversation ran far and wide and at "All including Goodwin, excepting two elderly employees, one a full-time employee who had formerly been warehouse foreman (Carl Smith) and the other a part-time social security pensioner (Harold Crompton) Mrs. Larsen testified she observed all of the warehouse employees except Smith and Crompton picketing "Montis also stayed out "It was not until this or the previous day that the signed union cards were turned in to the Union RICHARDSON TRANSFER & STORAGE CO., 511 that point the door opened and Mr. Williams came in with a newspaper and everyone became quite excited. Mrs. Larsen reached for the phone and started to dial. She said she was going to call the police. Mr. Larsen jumped up and I thought at the time he was going to strike out at Mr. Williams and I started to get up myself because I didn't want any trouble at all, none whatsoever. And there were some heated words and Mr. Williams left.70 After Williams thus left the room, the discussion continued for perhaps an hour, centering mainly around what Mrs. Larsen apparently insisted was the lack of qualifications of the men, while she also took the position that the employees had "left of their own accord." At the conclusion of the discussion, a further meeting was arranged for the next day.31 According to Mrs. Larsen's version of the foregoing meeting, Montis "introduced the conversation by saying, 'It is strictly an economical strike13 and I [Montis] would like for you to promise that there will be no reprisals,' " to which she responded, "I am listening." Also according to Mrs. Larsen, Montis did not ask that day, but only on the next day (August 1) that the employees be reinstated .33 She conceded that although Williams and Montis arrived for the conference and waited in the corridor together, "We requested George Montis to come in first, alone." Fritz's recollection of the meeting consists of little more than that Montis stated the employees were "on strike" and "wanted more money"; and that when Montis said he represented the employees, "I [Fritz] told him [Montis] I was the [employees'] bargaining representative"" according to Fritz (whom I discredit), Montis "agreed "According to Montis, Williams became angered when Mrs Larsen made a remark which Williams regarded as an "insult. . [to Williams'] intelligence " According to Williams - who was cooling his heels outside of the office while this conference, from which he had been excluded by the Larsens, was going on - "I was getting fidgety there with all the office personnel walking about and I went outside. By this time a Salina Journal, the local newspaper, had come out and the other strikers had a copy of it I read the article and there was some tremendous misquotes on both sides It was all jumbled up and I wanted to show this to Mr . Montis so I took it back inside and was going to knock on the conference room door, but the door was open and Mr . Montis was getting ready to leave I stepped in and handed him the newspaper . Mrs. Larsen said to sit down . I looked around and I saw Mr. Larsen, Mrs Larsen, Roy Fritz, and a stenographer taking down what was said . . . This seemed unfair to me that there would be three of them and one of us if we were bargaining . So I asked Mrs Larsen if the two of us couldn' t speak . She said, 'I am done with Mr. Montis We are ready to talk to you.' I said, 'What is wrong? Are you afraid two heads are better than one?' She said, 'It would take two of your heads to be as good as one of ours.' This made me mad and I said, 'Just don't doubt our intelligence, Viola Larsen' She picked up the phone to call the police and Mr. Fritz threatened to have the Taft-Hartley laws invoked and me thrown in jail . Mr Larsen was throwing his arms around and I walked out the door " On cross-examination , Williams conceded he "got mad" and "might have" become "pretty loud" because of what he considered was a "slanderous remark" by Mrs. Larsen, resulting in Larsen's telling him "not to talk to his wife like that." Williams also conceded that he slammed the door and "might have" said "You can all go to hell" as he left after being "threatened to be thrown in jail" He has never set foot in the premises since then ''Montis had meanwhile returned his key to the premises to Dispatcher Fritz. But "Fritz tried to give the key back to me [Montis] and he [Fritz] said, 'Look, the best thing for you [Montis] to do is back out of this thing and forget it and come back to work, and we will see you in the morning.' I said, 'No, I can't do that, I am in too far.' And he said, 'Oh, no, you are not. You can all back out.' And the question came out, 'Where is your loyalty? Don't you have any loyalty to the company?' I thought that was an odd question . I have been laughing about that ever since I didn't think my loyalty would ever be questioned, really. . . I asked absolutely nothing for myself." that I [Fritz] was .... It was his [Montis'] belief that I was correct in assuming that I was...." Larsen, present at the meeting, failed to testify. Contrary to my poor impression of the credibility of Mrs. Larsen and Fritz, I was favorably impressed by Montis who was forthright and candid and whose words had the ring of utter truth, and who testified against interest possibly at the permanent cost of his job." I accordingly credit Montis' version of the described July 31 meeting. 5. Thursday, August 1 On the following morning (Thursday, August 1) Montis returned to Mrs. Larsen's office to resume the meeting of the day before.36 There, according to Montis, whose testimony I credit for reasons already explained: I [Montis] opened the meeting by asking if there was any small point where we could find a common ground to get together, even just to put the men back to work, and I said, `Why don't we just set it all up the way it happened Monday, just go back on the same wages, same hours, everything just exactly the way it was until we can iron this thing out.' And Roy Fritz came right back and said, `What do you want to do, get Calvin [Williams] back in here so you can organize?' And I said, 'No, all I want to do is put those people back to work.' So we went over qualifications again that same day, and by this time, you have to understand, I am a man that doesn't take too much to set him off, and I was trying to fight down the idea, to keep my temper down and be decent and civil to everyone concerned. And we went over various things and I happened to make the remark, 'I think Harriman is doing better in Paris with Hanoi than I am doing here. I think I am wasting my time, so I think we had better close it up.'... Mr. Fritz and Mr. Larsen both stipulated definitely, repeatedly time and time again, that the only way anybody would go back to work would be if they walked across the street and hand "This is inconsistent with Montis' testimony as well as with that of Fritz. It impresses me as highly unlikely that Montis would employ such a phrase (i.e , "economical strike"), which (i e , "economic strike") is known as a phrase of art among cognoscenti like labor lawyers Poorly impressed as I was with Mrs. Larsen's testimonial performance, considering her numerous contradictions , evasiveness, and equivocations, as well as her demeanor and her strongly evinced interest , I do not believe her testimony that Montis made the statement it is strictly an economical strike" which she ascribes to him. "I credit Montis' version in this aspect as well "According to Fritz, he "found out later I [Fritz ] wasn't", and that he had based his earlier assertion that he (Fritz ) was the employees' bargaining representative upon an alleged 1963 decertification (at Fritz's behest) of a union which according to him had "identified" Fritz as "the bargaining representative , which I [Fritz] was, and all of the employees that were there have all gone by that." At that time (1963), Fritz was an over-the-road driver "The motions (upon which decision was reserved at the trial) to strike out Mrs. Glendening's testimony regarding an alleged incident during a previous employment of Montis thought to reflect upon his credibility, which incident was explained to my satisfaction by Montis and notwithstanding which incident Montis was subsequently not only rehired but appointed Warehouse Foreman by Respondent , are denied. "This meeting was attended by the same persons except that receptionist Mrs. Burch replaced the stenographer Mrs. Larsen testified that Mrs Burch's notes (which Mrs. Burch testified she took in "a personalized form of speedwriting" and then rewrote in longhand) were "retyped" by Mrs. Larsen (and Mrs. Glendening) Mrs. Burch testified that she did not proofread the typed version and does not know what happened to her notes 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picked the crews. My reaction was, `Who are you going to pick?' `That is up to the management. We are not going to tell you.' I said, `If that is the way you are going to work, we will stay out.'. . . [I indicated they would return] for exactly the same wage, hours, conditions it was prior to Monday morning, until we would reach some sort of agreement. . . [Fritz and Larsen indicated they] would go across the street and hand pick the crews. That is the only way they would consider it. Montis declined Respondent's proposal that Respondent would permit the return to work of only such employees as Respondent itself selected. At this meeting, Fritz again threatened that Respondent "would have me [Montis] arrested under the Taft-Hartley law for bargaining illegally." In support of this view, Fritz displayed "a decertification of the union some years back. . . . He [Fritz] went to a lawyer's office and had a document drawn up. I [Montis] didn't know what document and I don't know anything about the Taft-Hartley law, really." Fritz again insisted that "he [Fritz] was the one to bargain] for the employees," and again invited Montis that "any time I wanted to go to work I had a job." In her version of the August 2 meeting, Mrs. Larsen conceded that at the outset of that meeting Montis stated, " `I am asking that you put them all back to work on the same pay rate as before.' Mr. Larsen said, `You mean all the people?' Mr. Montis replied, `Yes.' I [Mrs. Larsen] asked why they were wanting to come back at the same rate of pay. I don't recall the answer." Mrs. Larsen further conceded that "Mr. Larsen said we would want to hand pick the ones we put back to work. Mr. Montis said, `All would come back or none.'. . . The conversation went on and on about whether we hand picked them, whether they all" came back or whether part came back. In the end Mr. Montis said, `I am getting no place, I might as well quit, I might as well go. You have pushed me to the end. It is out of my hands,' and he left." Dispatcher Fritz, who was also present at this meeting, while testifying that "I can't remember exactly" what anybody said and that "I didn't say too much. I listened to him[Montis] mostly," nevertheless conceded that Montis did say "To put the employees back to work. That was his [Montis'] main idea of being there." Again, Larsen did not testify. 6. Friday, August 2 On the following day, Friday, August 2, as testified by Mrs. Larsen on direct examination, Union representative Glenn met with her, stating he represented Respondent's employees and displayed cards which he offered to show her but which she "told him I did not wish to see... at that particular time. . . He asked that we reinstate the employees immediately." Mrs. Larsen replied that she wished to obtain legal advice, which might take to the following week. According to Mrs. Larsen, Glenn did not return. On cross-examination, after her attention was directed to her own transcript of this meeting, Mrs. Larsen conceded that she also told Glenn, "We will not take those back who walked out. We are mad, we won't take them back." Cross-examined further, Mrs. Larsen also conceded that in connection with the aforequoted words in "Mrs. Larsen conceded that when Montis insisted "all" employees be reinstated he included, and said he included, the four warehousemen, Williams. Woodin. Gipe, and Goodwin. the typewritten transcript, somebody - allegedly unknown to her - inserted in handwriting, but then blotted out, the words "quit and" immediately preceding the words "walked out." The explanation for this offered by Mrs. Larsen at the trial was that "These [transcripts] were for personal use, we didn't intend that they be subpoenaed to court, and they were only for reference of our company." At no time has Respondent had any further discussion with Montis, Williams, or any of the strikers, nor with anybody on their behalf, nor has any employee been reinstated to his or her job. D. Discussion and Concluding Findings Relative to Termination of Employment of Respondent's Four Warehousemen on July 29 and 30, 1968 The complaint alleges that in violation of Section 8(axl) of the Act, on July 29 and 30 Respondent by its Mrs. Larsen discharged its warehousemen Williams, Woodin, Gipe, and Goodwin, and has since failed and refused to reinstate them, because of their participation in protected, concerted activity. It is entirely clear that this allegation has been established, indeed overwhelmingly established, by a fair preponderance of the substantial credible evidence, and I so find. In its answer, Respondent alleges that the four warehousemen in question "resigned" on July 29. 1 find that this contention has not been established and is devoid of merit. The credible evidence establishes that at no time did any of the warehousemen in question resign or give up their employment with Respondent; on the contrary, these men repeatedly indicated in the clearest of terms that they had not quit and were not quitting. It was only in Mrs. Larsen' s peculiar semantic usage that the employees had "quit," since - according to her own testimony - she regards a "walkout" as synonymous (or "approximately" so) with "quit."" To begin with, the warehousemen did not "walk out" on Monday, July 29, but merely came to see Mrs. Larsen to discuss matters touching their and their fellow-employees' jobs and working conditions at the warehouse. This they had the right to do, on their own behalf as well as on behalf of the other employees as designated representatives of the latter, under the Act's express guarantee and protection. Mrs. Larsen knew full well that they were there and wished to speak to her, but she avoided them. Instead of speaking to them, she discharged them out of hand, thereby violating the Act in a most direct way. According to her, when she returned from her long coffee session that morning with her husband and receptionist Mrs. Burch, her husband (who had preceded her-in his separate car and who had had the opportunity to become apprised, before Mrs. Larsen returned, of the situation from the truckman who had been speaking to the four warehousemen outside of the warehouse), her husband said to her regarding the warehousemen , "It looks like they are walking out" and she understood this to mean "That they are quitting."" I do not believe Mrs. Larsen. She well knew that"the men were only waiting to talk to her, as indeed her husband "In this, Mrs. Larsen is plainly in error. See: Elam v. N L R B.. 395 F.2d 611, (C.A.D.C.); J. A Bentley Lumber Co v. N.L.R B.. 180 F.2d 641 (C.A.5); B & P Motor Express Incorporated. 171 NLRB No. 174. "Mrs Larsen concedes that nowhere in her own transcripts (37 pages) of conferences she held on July 31, August 1 , and August 2 did she ever say that the employees had "quit," but only "I said they walked out, and got RICHARDSON TRANSFER & STORAGE CO., expressly told her Cf. Electromec Design and Development Company, Inc, 168 NLRB No. 107, fn. 5. She nevertheless summarily discharged them. This was on Monday morning , July 29. When the four men returned to work on Tuesday, July 30, as they had been told to do the previous afternoon by Warehouse Foreman Montis, and actually went to work on Tuesday morning by explicit direction of both Montis and Dispatcher Fritz, either one of whom had the authority to so direct, they were nevertheless again abruptly discharged by personal order of Mrs. Larsen. The discharge of July 30, as well as that of July 29, was because of their engaging in protected concerted activity and for no other reason. For the same reason, Respondent has since that time refused to reinstate the employees. I find that on July 29 and again on July 30, 1968, Respondent, through its principal and Managing Director Mrs. Viola Larsen discharged from its employ, and has at all times since July 30, 1968, failed and refused to reinstate or readmit into its employ, its employees Calvin K. Williams, Robert L. Woodin, Ronnie E. Gipe, and Jess Goodwin, solely because of their participation in protected concerted activity, and that those actions on Respondent's part have been and are in violation of Section 8(a)(1) of the Act. E. Discussion and Concluding Findings Relative to Nature of Strike of Respondent's Warehouse Employees Commencing July 31, 1968 It is eminently clear from the substantial credible evidence that the primary and real reason for the strike by Respondent's warehouse employees commencing on July 31, 1968, was Respondent's unlawful discharge of the employees' designated spokesmen Williams, Woodin, Gipe, and Goodwin on the day before. As persuasively explained by the employee witnesses and corroborated by Warehouse Foreman Montis at the cost of his job, the employees met right after) finishing work at midnight of Tuesday, July 30, the day when Mrs. Larsen had for the second time precipitately\ discharged the employees' spokesmen, the four warehousemen. The sentiments expressed at the employees' midnight meeting of resentment over Respondent's unfair discharge of their spokesmen, the unanimous decision to strike in protest, the carrying out of that decision the next morning, the picket signs' wording, the strike and picketing by substantially the entire warehouse work force, and Montis' messages to Respondent in meetings of July 31 and August 1, betoken beyond peradventure that the strike was in protest over Respondent's unlawful discharge of the four warehousemen, and accordingly an unfair labor practice strike. The fact that the employees also had aspired to obtain higher wages and better working conditions in the abortive attempt of their four spokesmen to meet with Mrs. Larsen, and that Montis included these matters in his discussions, and that the employees continued to aspire to engage in fruitful discussion of these matters with Respondent, does not alter the character of the strike as an unfair labor practice strike. General Drivers and Helpers Union, Local 662 (Rice Lake Creamery Co.) v. N.L.R.B., 302 F.2d 908, 911 (C.A.D.C.), cert. denied 371 U.S. 827. See also N.L.R.B. their pay - isn't that quitting?.... They struck, they said they were on strike.... They really quit, also walked out." She explains that in her linguistic usage "walk out" is "approximately" the same as "quit" - namely, "cease work - Both mean cease work." On recross-examination, Mrs. Larsen conceded that she previously had not said that the four employees had "quit." but merely that "they walked out Monday [July 291." 513 v. Fitzgerald Mills Corporation , 313 F.2d 260, 269 (C.A. 2), cert. denied 375 U.S. 834; Northern Virginia Steel Corporation v. N.L.R . B., 300 F . 2d 168 (C.A. 4); Philip ^'arey Mfg Co v. N L.R B, 331 F .2d 720, 729 (C.A.6) cert. denied 379 U.S. 888; San Antonio Machine & Supply Corp , 147 NLRB 1112, 1113 n. 1, enfd . 363 F.2d 633 (C. A. 5). "The strike , which in fact did take place, was . . . an unfair labor practice strike, even though other reasons were also present, since one of the reasons for it was to protest an unfair labor practice [citing cases]." N L.R.B. v. West Coast Casket Co , Inc., 205 F.2d 902, 907 (C.A. 9). "Having violated the Act, the Respondent cannot choose the one of several causes of the strike that is most favorable to its position." N.L R.B v. Louisville Chair Company, Inc , 385 F.2d 922, 929 (C.A. 6), cert. denied 390 U .S. 1013. Nor , of course , does Respondent's manifestation to Montis of possible willingness to reinstate some of the strikers to its employ , but only on a hand-picked selective basis at Respondent ' s own choice, alter the character of the strike or interrupt Respondent's obligation to reinstate all, not merely some, of the unfair labor practice strikers . Cf. N.L R B. v. D'Armigene, Inc , 353 F.2d 406 (C.A. 2). I find that the strike of Respondent's employees on and since July 31 , 1 968, was and has since its inception continued to be, an unfair labor practice strike, occasioned by Respondent' s unfair labor practice of discharging its employees Calvin K . Williams, Robert L. Woodin, Ronnie E. Gipe, and Jess Goodwin from its employ on July 30, 1968, in violation of Section 8(a)(1) of the Act , because of the participation of said employees in protected concerted activity. I further find that notwithstanding the August 1, 1968, unconditional request for reinstatement on behalf of unfair labor practice strikers Darlene Hatfield, James McLaughlin , Shannon Thompson , and Fran Wyatt , Respondent has on and since August 1 , 1968, failed and refused to reinstate said strikers to their jobs with Respondent, in further violation of Section 8(a)(1) of the Act. IV. REPRESENTATION CASE ISSUES As indicated at the outset, certain related issues arising out of Representation Case 17-RC-5826, involving an election conducted on October 18, 1968, on behalf of the Board by its Seventeenth Regional Director (pursuant to his Decision and Direction of Election dated September 27, 1968, on union petition filed on August 22, 1968) have been consolidated for hearing with this Complaint case. The referred issues involve challenges to each of the I1 ballots cast in that election, six being challenged by the Employer and five by the Union.'° The six votes challenged by the Employer (i.e., Ronnie E. Gipe, Darlene Hatfield, James McLaughlin, Shannon Thompson, Robert L. Woodin, and Fran Wyatt) were those of discharged or striking employees. Inasmuch as all six of these were either unlawfully discharged (i.e., Ronnie E. Gipe and Robert L. Woodin) or unfair labor practice strikers (i.e., Darlene Hatfield, James McLaughlin, Shannon Thompson, and Fran Wyatt) who were challenged for no reason other than that they had allegedly quit their The bargaining unit is described as "All warehousemen -local truck drivers and packers \ employed at the Salina, Kansas warehouse of Richardson Transfer & Storage Co , Inc , including regular part-time employees, but excluding office clerical employees , over-the-road truck drivers, the dispatcher, the warehouse foreman, and professional employees, guards, and supervisors within the meaning of the Act." 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment" when in fact and in law they had not, they were clearly eligible to vote, and the Employer's challenges to their ballots should be overruled and the ballots which they cast should be opened and counted. Act, Sec. 2(3). With regard to the five challenged by the Union, it is claimed without being controverted, and a stipulation in the record indicates , that three (Eddie Brown , Clarence Henley, and Carl Honomichl) were replacements for unfair labor practice strikers; and their ballots were so challenged , without any showing there or here that they were other than replacements for the discharged or striking employees . Cf. Elam v. N.L.R.B.. 395 F.2d 611 (C.A.D.C.); Old King Cole. Inc. v. N.L.R.B.. 260 F.2d 530, 532 (C.A. 6). As such replacements for unlawfully discharged employees or for unfair labor practice strikers , they did not displace the unlawfully discharged employees or the unfair labor practice strikers in the unit ; and the Union's challenges to their ballots should be sustained , and the ballots which they cast as such replacements should be voided and not opened or counted. N.L.R.B. v. Lawrence Typographical Union No. 570 (Kansas Color Press, Inc.), 376 F.2d 643, 648 (C.A. 10); C. A. Froedge Delivery and Trucking Service, Inc.. 172 NLRB No. 8; Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL. 166 NLRB No. 72, cf. Times Square Stores Corporation. 79 NLRB 361, 363, ff. Insofar as the ballots of the remaining two voters challenged by the Union - i.e., Harold Crompton and Carl Smith - are concerned, inasmuch as each was a regular former and not a replacement employee , the Union's challenges to their ballots should be overruled and their ballots should be opened and counted. Upon the foregoing findings of fact and the entire record, I state the following: CONCLUSIONS OF LAW 1. At all material times , Respondent Richardson Transfer & Storage Co., Inc. has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Assertion of jurisdiction in this proceeding is proper. 3. By discharging from its employ on July 29, 1968, and again on July 30, 1968, and failing and refusing since then to reinstate to its employ, its employees Calvin K. Williams, Robert L. Woodin, Ronnie E . Gipe, and Jess Goodwin, because of their participation in protected concerted activity, Respondent has violated and is continuing to violate Section 8(a)(l) of the Act. 4a. On July 31, 1968, Respondent's employees commenced to engage and have uninterruptedly since continued to engage in a concerted work stoppage or strike. b. Said concerted work stoppage or strike was in its inception due to and caused at least in substantial snd controlling part by Respondent 's unfair labor practices, and each of them found herein , consisting of Respondent's discharge and failure to reinstate its aforementioned four employees because of their participation in protected concerted activity. c. Said concerted work stoppage or strike has been prolonged and is continuing by reason of the aforesaid unfair labor practices on Respondent's part. d. Said concerted work stoppage or strike was in its inception, has at all times since its inception continued to In the complaint case here, however, the Employer takes the position that the strikers "engaged in an economic strike." be, and is an unfair labor practice strike constituting protected concerted activity under the Act, and Respondent's employees who engaged therein were and are unfair labor practice strikers. 5. On August 1, 1968, all of Respondent ' s striking employees made an unconditional ,offer to return to their jobs in Respondent's employ (which jobs then and thereafter existed ), which offer Respondent refused and has continued to refuse ; and Respondent has at all times since the inception of said unfair labor practice strike on July 31, 1968, failed and refused to reinstate said striking employees - namely , Darlene Hatfield, James McLaughlin, Shannon Thompson, and Fran Wyatt. 6. By its said actions in (a) discharging and failing and refusing to reinstate said unlawfully discharged employees, namely Calvin K. Williams, Robert L. Woodin, Ronnie E. Gipe, and Jess Goodwin , and (b) failing and refusing to reinstate said unfair labor practice strikers, namely Darlene Hatfield , James McLaughlin, Shannon Thompson, and Fran Wyatt, and by each of said actions, Respondent has interfered with, restrained, and coerced, and is continuing to interfere with, restrain, and coerce, employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1), of the Act. 7. The aforesaid unfair labor practices and each of them affect commerce within the meaning of Section 2(6) and (7) of the Act, and are continuing to have an adverse impact and effect on commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effecutate the policies of the Act. A. The Four Unlawfuliv Discharged Warehousemen Having found that Respondent discharged four employees (i.e., Calvin K. Williams, Robert L. Woodin, Ronnie E. Gipe, and Jess Goodwin ) because they engaged in protected, concerted activity, I shall recommend that it be required to reinstate them to their previous or equivalent employment without prejudice; dismissing, if necessary , any replacement employees . I shall further recommend that those four unlawfully discharged employees be made whole for any loss of earnings suffered as a result of their unlawful discharges, by payment to each of a sum of money equal to that which each respectively would normally have earned as wages from the date of said discharge until the respective dates of Respondent's offers of reinstatement, less net earnings if any during that period , together with interest on the resulting amount; backpay and interest to be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Alleged Strike-Picket Misconduct Respondent urges that warehousemen Williams and Woodin, and strikers Darlene Hatfield and Shannon Thompson should in any event be denied reinstatement because of picketing misconduct . While it is recognized in general terms that strike misconduct of sufficient magnitude may under appropriate circumstances result in forfeiture of the misbehaving employee's right to RICHARDSON TRANSFER & STORAGE CO., 515 reinstatement," "The question in each case is whether, under the circumstances, the alleged misconduct of the striker is sufficient to justify the refusal to reinstate." W. J. Ruscoe Co. v. N.L.R.B., 406 F.2d 725 (C.A. 6). ".. where an employer who has committed unfair labor practices discharges employees for unprotected acts of misconduct, the Board must consider both the seriousness of the employer's unlawful acts and the seriousness of the employees' misconduct in determining whether reinstatement would effectuate the policies of the Act. Those policies inevitably come into conflict when both labor and management are at fault. . . . [A]utomatic denial of reinstatement prevents the Board from protecting the rights of employees, but may not be essential to the protection of legitimate interests of employers and the public. We conclude that the teaching of the Thayer /N.L.R.B. v. Thayer Co., 213 F.2d 748 (C.A. 1), cert. denied 348 U.S. 883] case is sound and must be followed in order to assure the Board's compliance with the statutory command that its remedial orders effectuate the policies of the Act." Local 833, Automobile Workers (Kohler Company) v. N.L.R.B., 300 F.2d 699, 702-703 (C.A.D.C.), cert. denied 370 U.S. 911. In assessing the gravity of alleged strike or picket misconduct, deference must be accorded to the freedom of expression guaranteed by the Constitution and confirmed by the Act, since "Strikers may, of course, attempt to persuade non-strikers to join their protest. . ." Ruscoe, supra. However, "such [persuasive] efforts must be confined within reasonable limits if they are to be protected." Id.; see also, Oneita, supra, 390-391. Behavior of this type is also not to be measured by Troy-weight or micrometer-like standards, due regard being required to be given to the hardnosed realities of the conduct of industrial relations as catalogued by the Board in its day-to-day administration of the Act in the exercise of its legislatively assigned responsibilities. Thus, as instructed by controlling authority, the Board tolerates a reasonable degree of "animal exuberance"" or impulsive conduct by all sides in connection with picket lines, in carrying out the policies of the Act. As an aside which may be of assistance in the maintenance of evenhanded perspective in this case, it may be of interest to observe that it is undisputed that early in the strike a member of Respondent's office staff, billing clerk-assistant dispatcher Mrs. Glendening, seized and carried off into the warehouse office one of the picket signs, threatening to call the police if she was interrupted in the accomplishment of this mission. Apparently the picketing employees took this in their stride, since they merely replaced the confiscated sign with several other signs after inquiring and being advised by the police that the signs were permissible. Under the circumstances, insistence by Respondent that the picketers should nevertheless have conducted themselves in strict accordance with Marquis of Queensberry standards might be regarded as somewhat overdrawn. There is no evidence that at any time Respondent attempted to enforce or invoke any public or private discipline against any of the discharged or striking employees for picket or strike misconduct, nor that "C.f., e.g., Oneita Knitting Mills. inc .. v. N. L. R. B., 375 F 2d 385, 391 (C.A. 4): Rubin Bros. Footwear, Inc. v. N L.R.B., 203 F .2d 486, 487 (C.A. 5); W. T. Rawlelgh Co. v. N L.R. B., 190 F .2d 832, 838, 839 (C.A. 7). "Milk Wagon Drivers Union v . Meadowmoor Dairies. Inc.. 312 U S. 287, 293. Respondent made any such contention prior to the trial of this case. (Not even in its answer is any such contention raised.) We shall nevertheless examine the two alleged incidents of "misconduct" which Respondent now insists bar reinstatement of the employees in question. The first incident centers around a replacement employee, Gene Alexander, hired by Respondent on or about the second day of the strike (i.e., August 1). Called as Respondent's witness, Alexander testified that as he and his friend Eugene Warren (another striker replacement) came out of the warehouse after work,44 they were approached around the corner by Williams, Woodin, Shannon Thompson, and possibly Darlene Hatfield, who . asked me, didn't I know I could get in trouble by crossing the picket line and I said I didn't see no picket line and I thought if they had been picketing they would be in front of the place, across the street, I guess, they were being picketed across the street and someone said out of the crowd, I don't know which one, but they said they could do anything to me that they wanted to. .. . They could do anything to me that they wanted and wouldn't be anything done because I crossed the picket line." On direct examination Alexander confined himself to the foregoing and also swore that he did not know who said this. On cross-examination, however, he added that when the pickets spoke to him "they were using profanity and cursing and gesturing." Alexander's notion of "profanity and cursing" - as observed by me he was an athletic young man not manifesting any shrinking or diffident manner - may be gleaned from the following account which he supplied on cross-examination: "I [Alexander] walked across the street and they come up to me and asked me did I know I could get in trouble for crossing the picket line, and I told him I didn't cross the picket line. They asked me, didn't I see they had a picket on Richardson Transfer Company, and I told him no, that they were across the street and I didn't pay any attention to them. I said, 'If they picket Richardson Transfer Company, they would be in front of it.' I didn't know what was going on. And a lady, some lady said that we are striking for higher wages, and she said that long as they can get God damn people like me and Eugene Warren working for them, their chances are lessened as long as they can get people working for them under wage." Alexander nevertheless returned to work the next day, when, still according to his testimony, he again saw the striking employees "standing out front that day, but they didn't say anything to me .1141 Conceding that none of the strikers "directly" said he or they would do him any "physical harm," Alexander also swore that he was "more or less sympathetic with the strikers." He quit the job at the end of his second day, after his friend Warren had quit at 1 p.m. According to discharged warehouseman Williams, on the second day of the strike (Thursday, August 1) he observed a car containing three men (one of whom was Alexander) readying to park near the warehouse. The driver, seeing the picket signs, asked: " 'Is this a strike or "Alexander testified that they had been driven to work by a third man, who did not go in to work. On cross-examination, however, Alexander swore that he did not see the pickets "because we went in the back door ." He then added that he saw them "after I was in the building." Observing Alexander closely, I could not avoid the impression that his narrative was not limited to accurate recall but tended toward embellishment . This impression was fortified when I heard the countervailing testimony 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a picket line?' And we said, 'Yes, sir, we had a problem and we are going to get it settled, but we can't get anything if the people break our strike'line.' And he said, 'Well, that is fine. . . . I have been involved in labor disputes. I won't cross your line. You guys are working for something. If it is worthwhile, I hope you get it.' In the meantime, the other two got out of the car. Alexander had gone into the door and the other one, Mr. Warren, I believe his name was, was approaching the door, and the third gentleman, Mr. Smith, hollered at them. He spoke to them for a moment. Mr. Smith went and got back in his car. Mr. Warren came back, Mr. Warren caught Mr. Alexander, spoke to him, the two of them came and got back in the car and the car drove off, and I didn't see them again until later on that day." According to Williams, he had no knowledge that Alexander or Warren worked or may have worked at the warehouse that day - since he did not see them enter the building - until he saw them come out after work and walk rapidly away. Williams, Woodin, Gipe, Thompson, McLaughlin, and Hatfield then followed them around the corner, where: "I [Williams] said I was going to speak for the group. And I spoke with the two men and told them that there was something going on here, we were trying to better the conditions and the situation and, again, I told them we wouldn't get anything if people broke our strike line, and without cooperation the place would stay in the rut it was in. And they . . . said, 'I can see that.' . . . Mr. Alexander made the comment they were new in town and we need the jobs, too, but we are trying to better the situation.' And we, again reiterated the fact that we couldn't get anywhere if people continued to cross our picket line. We needed their cooperation. And the last thing that was said was by me, because I had been warned previously by Mr. Montis and by the police whatever I do don't threaten anyone or say anything that would be taken as a threat.66 And the last thing I said to the two of them was, 'I don't mean to say anything to you that you would take as a threat to harm you. We mean you no harm. We are trying to solicit your cooperation we need. If you continue, this will break what we are working for.' . They said all right, and we walked off and they walked off." Williams adamantly denied that he or anybody in his group made any threat or employed any expression such as that "we can do anything we want to you. " as testified by Alexander. Williams conceded that although his "best recollection" was that he used no "profanity" on the occasion, it is possible he might at most have uttered "A hell or a damn, maybe." Neither of Alexander's companions Warren or Smith testified, nor was their failure to do so explained. As already indicated, I was less than favorbly impressed with Alexander's testimony. On the other hand, I was extremely well impressed with Williams - a cleancut, personable student at Kansas State Teachers College - who testified with openness, candor, sincerity, and convincingness. Accordingly, I have no hesitancy in preferring and crediting Williams' account of the described episode. "Explaining this , Williams testified that in conjunction with police advice to the striking employees, following Mrs. Glendening's confiscation of one of their signs, that display of their signs was not unlawful "Officer Brown, a gentleman on the force that a lot of us know , and he told us what we could do and couldn't do. Don't block traffic, don't get on the street, keep your sign so the cars can be marked and don't threaten anyone, or say anything that could be considered as a threat . And I took it to heart." Crediting Williams' account, I find that the described incident constituted no more than an attempt on the part of himself and those with him to persuade Alexander to honor their picket line, and involved no misconduct." The other alleged incident of "misconduct" which Respondent now contends precludes reinstatement of Williams was testified to by Mrs. Virginia Hill, who acted as the stenographer at one of the conferences between Mrs. Larsen and her associates and Montis, which has been recounted in another connection. According to Mrs. Hill, on Thursday or Friday (August 1 or 2) she saw Alexander (the replacement employee who testified concerning the other incident of alleged "misconduct") helping to load a truck at the back dock of the warehouse when she observed "some young man, who was blond haired and round faced, came up from the north end of the dock and . . . told him [Alexander] if he didn't leave he'd make him." Mrs. Hill then successively testified that "I think," " I am sure," and finally, "I am positive it was Calvin Williams.' 149 A difficulty with Mrs. Hill's testimony is that, as observed by me, Williams does have blond hair and swore that he never did. According to Mrs. Hill, Williams' hair "was bleached a lighter color. . . It was very blond." Williams denied he had ever bleached his hair or that it has ever been any color other than the brown which it is now. He also denied involvement in the incident described by Mrs. Hill. On cross-examination, Mrs. Hill testified that it was not Alexander whom she had seen on the dock on the occasion in question, but Alexander's "friend [presumably Warren]. . . . [I] got the names mixed up," conceding she "get[s] names confused quite often." Mrs. Hill (like Mrs. Larsen) referred to the four warehousemen as having "quit" because "they're no longer down there." Mrs. Hill further explained that she had volunteered to work at the warehouse during the strike, she being not only a stockholder of Respondent but the sister of Mrs. Larsen. The other alleged participant in the episode described by Mrs. Hill - Alexander's "friend," presumably Warren was not produced to testify nor was any explanation offered for the failure to do so. Under all of the circumstances and weighing testimonial demeanor, I find that it has not been established by substantial credible evidence that Williams or any other of the discharged employees or strikers with which the instant proceeding is concerned was involved in the alleged incident described by Mrs. Hill. I, accordingly, find that Respondent has failed to establish by substantial credible evidence that any of the discharged employees or strikers herein at any time misconducted himself or herself, or was at any time involved in any misconduct such as to forfeit his or her right to reinstatement or any other remedy recommended herein . Cf. Milk Wagon Drivers Union v. Meadowmoor "It will in any event have been noted that the incident even as described by Alexander involved no violence whatsoever (such as the assaults, mauling or pushing, object-hurling , car-rocking, or blocking of ingress and egress, typically encountered in cases where reinstatement is denied). Cf, e.g. N L R B v. Plastic Applicators. Inc, 369 F.2d 495, 496-498 (C A. 5); Trumbull Asphalt Co. of Delaware, 327 F.2d 841, 844-845 (C A. 8). It was plainly not "so violent or of such serious character as to render the employee unfit for further service." N L R B. v. Illinois Tool Works, 153 F.2d 811, 816 (C.A 7). "On cross-examination, Mrs. Hill added that the young man "with the bleached hair" did nothing other than make the described remark and leave at once - "He jumped up on the dock . . and he immediately got back off [and] .. left " RICHARDSON TRANSFER & STORAGE CO., 517 Dairies, Inc., 312 U.S. 287, 293, 295; N.L.R.B. v. Deena Artware, Inc., 198 F.2d 645, 652 (C.A. 6), cert. denied 345 U.S. 906; N.L.R.B., v. Kelco Corporation, 178 F.2d 578, 580, 582 (C.A. 4); Reed & Prince Mfg. Co., 118 F.2d 874, 887-888 (C.A. 1), cert denied 313 U.S. 595; Butcher Bov Refrigerator Door Company, 127 NLRB 1360, 1371, enfd . 290 F. 2d 22 (C.A. 7); Reeves Brothers, Incorporated, 116 NLRB 422, 435; Efco Manufacturing, Inc., 108 NLRB 245, 249-250, 261, enfd. 227 F.2d 675 (C.A. 1); Vermont American Furniture Company, 82 NLRB 408, enfd. 182 F.2d 842 (C.A. 2). B. The Unfair Labor Practice Strikers The strike of Respondent's employees which commenced on and has continued since July 31, 1968, was and is an unfair labor practice strike occasioned by and in protest against Respondent's unfair labor practices. It is elementary that unfair labor practice strikers may not be discharged for such a strike and that they are entitled to nonprejudicial reinstatement upon proper application. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278; Serv-Air, Inc. v, N.L.R.B., 395 F.2d 557, 561-562 (C.A. 10), cert. denied 393 U.S. 840; N.L.R.B. v. Park Edge Sheridan Meats, Inc., 323 F.2d 957, 958-959 (C.A.2); N.L.R.B. v. Sunrise Lumber & Trim Corp., 241 F.2d 620, 625 (C.A. 2), cert. denied 355 U.S. 818; N.L.R.B. v. Wooster Division of Borg-Warner Corp., 236 F.2d 898, 905-906, 907 (C.A. 6), affd. in part and reversed in part on other grounds 356 U.S. 342; cf. N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375. Unfair labor practice strikers may not be permanently replaced while unfair labor practices, as here, continue unremedied. Mastro Plastics Corp., supra; N.L.R.B. v. D'Armigene, Inc. 353 F.2d 406 (C.A. 2). Notwithstanding an unconditional offer made on behalf of the unfair labor practice strikers on August 1, 1968, to return to work '41 Respondent has failed and refused to reinstate the strikers. so I shall accordingly recommend that Respondent be required to offer each of the unfair labor practice strikers9i - namely, Darlene Hatfield, James McLaughlin, Shannon Thompson, and Fran Wyatt - immediate and full reinstatement to his or her former or substantially equivalent position, without prejudice to seniority or other rights and privileges, if necessary by discharging replacement employees. In addition, Respondent should be required to make those employees whole for any loss of earnings which they may have suffered by reason of Respondent's refusal to reinstate them pursuant to their unconditional application of August 1, 1968, by payment to them of a sum of money equal to that which the employees normally would have earned as wages during the period beginning 5 days after the date (i.e., August 1, 1968) on which such employees applied for reemployment or reinstatement - namely, beginning on August 6, 1968 - and terminating on the date of Respondent's offer of employment. The amounts payable and interest thereon should be computed in accordance with the formulas stated in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 617. If, after dismissal of replacement employees, there are insufficient positions remaining for employees covered by the reinstatement order, those for whom no employment is immediately available should be placed on a preferential hiring list, with priority determined among them by such nondiscriminatory system as heretofore applied in the conduct of Respondent' s business or any other nondiscriminatory practice, and thereafter, in accordance with such list, they should be offered reinstatement as positions become available and before other persons are hired for such work." Respondent should further be required to indemnify such employees for any loss which may result to the employees from Respondent's failure to establish and properly hire them from such a preferential hiring list, if it is necessary that such list be established. The Recommended Order will also include a provision that if any of said employees should currently be serving in the Armed Forces of the United States, Respondent shall be required to notify him of his right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. Respondent should also be required to make available all necessary records for computation of backpay due, or otherwise necessary to carry out the terms of the Order. Appropriate corrections should also be made in records to reflect the fact that none of the employees in question quit his or her job as claimed by Respondent. The unfair labor practices committed by Respondent, namely the out-of-hand discharge of four employees for merely attempting to speak to their employer so as to be able to try to exercise basic rights guaranteed to them by the Act, followed up by Respondent' s continuing refusal to reinstate them or other employees striking for that reason , betoken an obtuse indifference to longstanding basic requirements of the law of the land and are of a character undermining the roots of employee rights safeguarded by the Act. I shall accordingly recommend that Respondent be required to cease and desist from infringing in any manner upon employee rights guaranteed in Section 7 of the Act. I shall further recommend that Respondent be required to post an appropriate notice. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, and pursuant to Section 10(c) of the Act, it is recommended that Respondent Richardson Transfer & Storage Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Discharging or refusing or failing to reinstate with full backpay, or interfering with, restraining, or coercing in any other manner, or threatening so to do, any employee by reason of his or her exercise or attempted exercise of the right to engage in protected concerted "Contrary to Respondent 's contention, it matters not that this offer was transmitted to Respondent by the employees through Warehouse Foreman Montis, a supervisor or former supervisor of Respondent The employees were free to choose their message transmission conduit to their employer. "As already indicated , Respondent' s manifestation of possible willingness to reinstate only such of the striking employees as Respondent might itself hand-pick , was unavailing to extinguish , toll, or alter its obligation to reinstate all. Cf. N L R.B. v. D'Armigene, Inc , 353 F.2d 406 (C.A. 2) "As established and conceded by Mrs. Larsen, all warehouse employees except Carl Smith and Harold Crompton went out on strike on July 31, 1968. Although Warehouse Foreman George Montis joined the employees in their strike, no complaint is made nor remedy sought for him in this proceeding, cf. N.L.R.B. v. I. D Lowe. d/b/a Thermo-Rite Mfg Co. 406 F.2d 1033, (C.A. 6). "Cf. Butler Knitting Mills. Inc.. 127 NLRB 68 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity under the National Labor Relations Act as amended; including, but not limited to, the right to communicate, confer, grieve, and deal concertedly with Respondent concerning wages, hours, and other terms and conditions of employment. (b) Failing or refusing to reinstate, with appropriate backpay and without prejudice, any employee striking because of any unfair labor practice by Respondent, upon the unconditional application of such employee to be reinstated to his or her job. (c) In any other manner interfering with, restraining, or coercing any employee in the exercise of his right to self-organization ; to form , join, or assist any labor organization; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative actions necessary to effectuate the policies of the Act: (a) Offer to Calvin K. Williams, Robert L. Woodin, Ronnie E. Gipe, and Jess Goodwin immediate, full reinstatement to their former positions as warehousemen, or substantially equivalent positions, without prejudice to existing wage rates, seniority and other rights, privileges, benefits and emoluments, and make each of them whole for any loss of pay (including overtime, holiday and vacation pay, and insurance benefits if any), together with interest, in the manner set forth in "The Remedy" section of this Decision; discharging, if necessary, any replacements or other employees hired in their stead. (b) Offer immediate, full reinstatement to their former or substantially equivalent positions, without prejudice to existing wage rates, seniority, and other rights, privileges, benefits and emoluments , to all employees who went on strike on July 31, 1968 - that is to say, Darlene Hatfield, James McLaughlin, Shannon Thompson, and Fran Wyatt - and make each of them whole for any loss of earnings, together with interest, resulting from Respondent's failure and refusal to reinstate them on and since August 6, 1968, as more fully set forth in "The Remedy" section of this Decision; discharging, if necessary, any replacements or other employees hired in their stead. (c) Expunge or correct any personnel or other record, entry or report indicating that any of the foregoing named persons quit the employ of Respondent at any time on or since July 29, 1968. (d) Place all striking employees of Respondent for whom no employment is available upon a preferential hiring list, with priority in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by Respondent in the conduct of its business; and thereafter offer such employees reinstatement as such employment becomes available and before other employees are hired for such work. In the event Respondent fails to do so, Respondent shall reimburse each employee for losses sustained by reason of such failure. (e) 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 ascertain and analyze the amount of backpay, benefits and emoluments due under the terms of this Order, or otherwise necessary to carry out the terms of this Order. (f) Notify each of said employees entitled to reinstatement who may currently be serving in the Armed Forces of the United States of his or her right to full reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. (g) Post in its warehouse premises in Salina, Kansas, copies of the attached notice marked "Appendix."13 Copies of said notice, on forms provided by the Regional Director for Region 17, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith.60 In the Representation election conducted on behalf of the National Labor Relations Board by the Regional Director for Region 17 in Case 17-RC-5825 on October 18, 1968, in Salina, Kansas: (a) The challenges and each of them interposed by the Employer therein, Richardson Transfer & Storage Co., Inc., to the votes and ballots cast by Ronnie E. Gipe, Darlene Hatfield, James McLaughlin, Shannon Thompson, Robert L. Woodin, and Fran Wyatt, are hereby overruled; and said ballots and each of them shall forthwith be opened and counted by said Regional Director. (b) The challenges and each of them interposed by the petitioning Union therein, Truck Drivers and Helpers Local Union 696, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, to the votes and ballots cast by Eddie Brown, Clarence Henley, and Carl Honomichl, are hereby sustained, and said ballots and each of them, being void and of no effect, shall not be opened or counted; and the challenges and each of them interposed by said petitioning Union to the votes and ballots cast by Harold Crompton and Carl Smith, are hereby overruled, and said ballots and each of them shall forthwith be opened and counted by said Regional Director. (c) Upon the opening and counting of said ballots in accordance herewith and pursuant to applicable Board Rules, Regulations and practices, the results of said election shall thereupon be duly certified. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the Notice . In the further event that the Board's Order is enforced by decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps have been taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, an RICHARDSON TRANSFER & STORAGE CO., Agency of the United States Government, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial at which all sides had the chance to give evidence, it has been decided that we, Richardson Transfer & Storage Co., Inc., violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection If you wish, not to do any of these things. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with any of your rights listed above. WE WILL NOT discharge, or fail or refuse to reinstate with full backpay, or interfere with, restrain or coerce in any other manner, or threaten so to do, any employee because he or she does or tries to do anything he or she has the right to do under the National Labor Relations Act, as amended, such as, communicating or trying to communicate or meet with us in order to grieve and deal concertedly with us about wages, hours, or any other term or condition of employment. WE WILL NOT fail or refuse to promptly reinstate to his or her job any employee who goes on strike because of any unfair labor practice committed by us, and who applies to us for such reinstatement. WE WILL NOT in any other manner interfere with, restrain, or coerce any employee in the exercise of his or her right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of his or her own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL offer immediate, full reinstatement to Calvin K. Williams, Robert L. Woodin, Ronnie E. Gipe, and Jess Goodwin, to their former jobs as warehousemen (or substantially equivalent positions), and grant each of them full seniority and all other rights and privileges lost or missed since we discharged them on July 29 and 30, 1968. WE WILL pay each of them, with interest, for all wages and other moneys, benefits, and advantages lost because of those discharges. WE WILL also have their personnel and other records corrected to show that they did not quit their jobs with us. If necessary, we will discharge any and all employees hired to replace them. 519 WE WILL offer immediate, full reinstatement to Darlene Hatfield, James McLaughlin, Shannon Thompson, and Fran Wyatt, to their former (or substantially equivalent) positions, and grant each of them full seniority and all other rights and privileges lost or missed since we failed and refused to reinstate them when they applied for reinstatement on August 1, 1968, after they went on strike on July 31, 1968, because of our discharge of Williams, Woodin, Gipe, and Goodwin on July 30, 1968. WE WILL pay each of them, with interest, for all wages and other moneys, benefits, and advantages lost since August 6, 1968 (that is, 5 days after their request for reinstatement) because of our failure and refusal to reinstate them. WE WILL also have their personnel and other records corrected to show that they did not quit their jobs with us. If necessary, we will discharge any and all employees hired to replace them. In the event that, after the discharge of all replacements, there are insufficient jobs open for the purpose of reinstatements, we will set up and hire unreinstated striking employees from a preferential hiring list on a nondiscriminatory seniority basis; and if we fail to do so, we will reimburse those employees in full, with interest, for any such failure on our part. WE WILL notify each employee entitled to reinstatement who may currently be serving in the Armed Forces of the United States of his or her right to full reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. WE WILL deal and cooperate with your authorized representatives in every way that the law requires, so that you may meet and deal concertedly with us if this is what you desire; without any interference, restraint, or coercion from us or from any of our owners, officials, supervisors, or agents, in any way, shape, or form. Dated By RICHARDSON TRANSFER & STORAGE CO., INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.