International Van Lines

INTERNATIONAL VAN LINES International Van Lines and Teamsters and Warehousemen, Local 381, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. Case 31-CA-855 June 30, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 20, 1968, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, 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 entire record in this case, including the Trial Examiner's Decision and the exceptions and briefs, and adopts the Trial Examiner's findings, conclusions and recommendations only to the extent consistent herewith. 1. The Trial Examiner found that certain statements made by Johnny McEwan, son of Respondent's president, on several different occasions were not violative of Section 8(a)(1) of the Act. Contrary to the Trial Examiner, and for the reasons detailed hereafter, we find that certain remarks made to employees by Johnny McEwan on company premises were violative of the Act. David Dicus testified that around September 1' while he, Robert Vasquez, and Jimmy Weaver, employees at the warehouse, were unloading a truck, Johnny McEwan said, "if the Union did come in, that our fishing trips would be gone. We would never have any more.. " Employees Vasquez testified that Johnny came in and "asked us, he heard that we were joining the union." When Vasquez answered in the affirmative, Johnny said that "we should not, that his dad had said if we should join the union, that it [sic] is going to take all our benefits and rights, and he was going to work our . . ." Vasquez' version of this conversation not only supplies the context in which the conversation took place but also attributes the coercive remarks to Johnny's father and Respondent' s president, Robert McEwan. The latter did not deny making such remarks to his son. 353 Such remarks were uttered on the heels of an inquiry into the union sympathies of the employees and clearly identified Johnny's interest with the interests of his father and Respondent.' In view of a similar statement made to employee Richard Dicus by Johnny's father,' we find that Johnny, in making the remarks and attributing them to his father, was acting as a conduit for his father and thereby coerced and interfered with the employees' exercise of their Section 7 rights. Accordingly, we conclude that in these circumstances the remarks uttered by Johnny McEwan violated Section 8(a)(1) of the Act. 2. The Trial Examiner also found that Respondent did not violate Section 8(a)(3) by discharging and refusing to reinstate striking employees Manuel and Robert Vasquez and Richard Dicus and by refusing to reinstate striking employee Salvidor Casillas. We disagree. The Union was attempting to organize simultaneously the employees of all or almost all of the van and storage companies in the Santa Maria area, including the Respondent. It is clear that the Union had by September 11 secured authorization cards from a majority of Respondent's employees in an appropriate unit of Respondent's employees but did not make a demand on Respondent for recognition. Instead, the Union filed a representation petition with the Board on September 21 limited to such unit. Union meetings of employees of all the area companies were held on October 2 and 3 and thereafter a strike and picketing commenced at Respondent's premises on October 4. One of the picket signs carried the legend, "Unfair to Teamsters Union Local 381," and underneath, "No elections. Why." On October 5 Respondent sent identical telegrams to employees Manuel and Robert Vasquez and Richard Dicus, stating, "For failure to report to work as directed at 7 a.m. on Wednesday, October 4, 1967 you are being permanently replaced." Robert McEwan testified that the strikers had been replaced as of October 5 by Harold Mitchell, Gary Hoffman, Blaine Burlington , Ysmael Contreras, and Don Cross. However, the record shows, and the Trial Examiner found, that these were temporary replacements.4 Subsequently, the striking employees made requests for reinstatement. Robert McEwan admitted in his testimony that in 'Unless otherwise indicated , all dates refer to events which occurred in 1967. 'For similar reasons, we have excluded from bargaining units the children of individuals who have substantial stock interests in closely held corporations. See Foam Rubber City 2 of Florida, Inc., d/b/a Scandia, 167 NLRB No. 81. 'Dicus testified that on October 3 Robert McEwan told him, "If the union gets in here, we cannot have fishing trips and picnics and Christmas bonuses." McEwan admitted that he mentioned fishing trips, barbecues, and picnics but testified that these benefits were discussed in connection with the effect unionization would have on Respondent 's ability to continue such benefits. The replacements worked for Respondent on Thursday, October 5, They formerly worked for Robert McEwan 's brother at Mercury Van & Storage but were being laid off as of October 5, the end of Mercury's pay 177 NLRB No. 33 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the latter part of November employee Salvidor Casillas came to his office and told him that he could not stay out on strike like the other men who had wives working and that he had to go back to work. Casillas asked to be placed on an "availability list."` Contrary to the Trial Examiner's findings, the record shows further, and we find, that on December 12 Manuel and Robert Vasquez and Richard Dicus made unconditional offers to return to work but were refused.' The Trial Examiner viewed the General Counsel's evidence as establishing an industrywide strike beginning on October 4 which was allegedly caused by the Union's secretary-treasurer, Ben Sanders, announcing at the October 2 and 3 union meetings that Respondent and other van lines had withdrawn their consent to an election.' Sanders also testified that another reason for the strike was the dismissal of employees from other companies.' period Although Respondent's pay period began on October 5, the men were carried on Mercury's payroll for the day they worked for Respondent. Indeed, there is no evidence that any of the men worked for Respondent on the remaining days of its pay period which ended October I I or that Mitchell and Cross performed any further work for Respondent through the pay period ending November 29 Moreover, through the pay period ending November 29, Contreras was carried on Respondent's payroll only for the pay periods ending October 18 and 25. Burlington worked only during the pay period ending October 25 , and Hoffman first appeared on Respondent's payroll during the same pay period 'Based on the foregoing testimony , we find that Casillas made an unconditional application for reinstatement in November 1967. The Trial Examiner inadvertently refers to the date as December 21. 'Principally because there was no foundation established on the record to support the fact that Respondent had even consented to an election, let alone withdrawn such consent, the Trial Examiner discredited this testimony and characterized it as "a fabrication by Sanders to give a semblance of excuse for his arbitrary and precipitate conduct in calling the work stoppage." It appears that the Trial Examiner was persuaded to this conclusion by the testimony of employee Richard Dicus who testified that at the October 3 meeting the van line situation was discussed in general but Respondent was not mentioned by name at any time. In discrediting Sanders' testimony, the Trial Examiner appears to have focused on the issue whether the Respondent's withdrawal of consent was true or false The General Counsel took the position at the hearing , as well as in its brief, that the truth or falsity of the assertion was irrelevant, stating that the testimony was being adduced only for the purpose of establishing the basis for the Union's decision to strike . As such testimony would tend to establish an economic motivation for the strike , we find merit in this contention . Moreover, insofar as the Trial Examiner discredits Sanders' testimony on the basis of Dicus' apparent denial that Respondent was mentioned by name at the October 3 meeting, the Trial Examiner leaves the erroneous impression that the General Counsel induced Dicus to modify his testimony through leading questions on redirect examination. The record shows, however, that Dicus testified on cross-examination that he left the meeting early and Respondent's name might have been mentioned after he left. Indeed, Casillas, who did remain until the end of the meeting, corroborated Sanders' testimony that there was discussion concerning the withdrawal of consent to an election by three van lines, including Respondent, and that this news precipitated the strike . Casillas testified "we lust decided, well, they don't want to consent to an election. We are going to go on strike, and we all started making picket signs that night." This testimony is consistent with the admitted fact that an industrywide strike occurred on the following day and with the "No elections. Why." legend that appeared on one of the picket signs 'The Trial Examiner restricted the evidence to events which pertained only to Respondent, notwithstanding evidence tending to show that decisions at the union meetings were made by and for employees of all the van and storage companies . Indeed, the General Counsel's rejected offer of proof indicates that the strike and picketing began on September 27 at the premises of another employer , Coast Delivery Service, because it had While the record evidence supports a finding that one of the objects of the strike was to bring pressure on Respondent to agree to a consent election,' we need not predicate our disagreement with the Trial Examiner's conclusions on such evidence. For even accepting the Trial Examiner's premise that the strike was at best aimed at seeking immediate recognition of the Union, a finding which is clearly supported by the record, there is nothing unlawful or against public policy in employees striking for such purpose when no other union has been certified." Moreover, the strike does not lose the protection of the Act merely because the Union did not present beforehand a specific demand upon the Respondent for recognition. The Supreme Court has stated unequivocally that the language of Section 7 is "broad enough to protect concerted activities whether they take place before, after, or at the same time" a demand is made." Nor are we here concerned with the reasonableness of or the justification for the decision to strike. It is settled law that the wisdom or unwisdom of a strike, the justification or lack of it, does not alter its status as a protected activity." Accordingly, we conclude that on and after October 4, Respondent's employees were economic strikers who retained their status as employees until such time as they were permanently replaced. We turn now to a consideration of the legal effect on the status of the strikers of Respondent's telegrams of October 5." While these wires are couched in language indicating that the three employees to whom they were addressed were being permanently replaced, their clear import is that they were being discharged for not working; i.e., for engaging in a strike. Moreover, as found by the Trial Examiner, at the time the wires were sent only temporary replacements had been hired. Indeed, the Respondent neither contended nor does the record show that the strikers were replaced by new employees other than those whom the Trial Examiner found to be temporary replacements. In these circumstances, we conclude that Respondent, by sending these wires, intended to and did discharge employees Manuel and Robert Vasquez allegedly discharged employees for union activity, and that the decision to strike this employer and any other employer who similarly discharged employees for union activity was made at a general union meeting on September 26. While the exclusion of this background evidence was not helpful in developing a well-rounded record , we conclude its exclusion was not prejudicial 'A stoke to bring pressure on an employer to agree to a consent election is not unlawful or against public policy . New Orleans Roosevelt Corp, 132 NLRB 248; Phdanz Oldsmobile, Inc., 137 NLRB 867, 869. "Philanz Oldsmobile, Inc., supra, 869 "N.L.R.B. v Washington Aluminum Co , 370 U.S. 9, 14. However, prior to striking the Union had, as previously indicated , filed a petition limited to Respondent's employees and copies of such petition had been served upon the Respondent which thus knew the Union claimed to represent its employees. "N.L.R.B v. MacKay Radio and Telegraph Co., Inc., 304 U S. 333, 344. "As the Trial Examiner found that the strike was unprotected, he did not reach this issue. INTERNATIONAL VAN LINES and Richard Dicus for engaging in a strike and thereby violated Section 8(a)(3) and (1) of the Act. The discharge of the aforesaid employees, which had the natural effect of tending to prolong the strike, converted what had commenced as an economic walkout into an unfair labor practice strike."' Accordingly, Respondent further violated Section 8(a)(3) and (1) of the Act by refusing to reinstate, upon their unconditional applications, Salvidor Casillas, Manuel and Robert Vasquez, and Richard Dicus. 3. The General Counsel contends that the Union represented a majority of Respondent's employees in an appropriate unit, and we agree that a unit of all of Respondent' s employees with the usual exclusions is an appropriate unit." The record shows that on September 21, the date the Union filed its petition for representation with the Board, the unit consisted of six full-time and part-time employees who were eligible to select a collective-bargaining representative.16 As found by the Trial Examiner, all of these employees except Weaver had signed authorization cards by September 11. Although Poncetta was apparently discharged for cause on October 2, we find that the Union still represented a majority of Respondent's employees when Respondent discharged three union adherents on October 5. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , we shall order it to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having also found that the Respondent unlawfully discharged employees Manuel and Robert Vasquez and Richard Dicus and that the striking employees became unfair labor practice strikers, we shall order the Respondent to reinstate , or offer immediate and full reinstatement to, Manuel and Robert Vasquez, Richard Dicus, and Salvidor Casillas to their prestrike or substantially equivalent jobs with all of the rights and benefits they would have accumulated but for the discrimination against them, discharging, if necessary, any strike replacements. The Respondent shall also be required to make whole the above-named employees for any losses they may have suffered as a result of the Company's failure to "Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL, 166 NLRB No. 72. "As Respondent 's business is seasonal and a number of part-time employees are hired in the peak season (July-September), all regular part-time employees who worked or will work a minimum of 15 days in the 3-month period from July to September are includible in the unit Motor Transport Labor Relations, Inc., 139 NLRB 70. "Included in the unit were Richard and David Dicus , Manuel and Robert Vasquez, Jimmy Weaver, and David Poncetta. Johnny McEwan is excluded from the unit because he is the son of Respondent 's president and the Respondent is a closely held corporation. Foam Rubber City 2 of Florida, d/b/a Scandia, supra 355 reinstate them beginning 5 days after their unconditional applications for reinstatement and continuing until the date of their reinstatement. As the record does not clearly establish whether Salvidor Casillas was a full-time or part-time employee, resolution of his status and his concommitant benefits under this decision will be deferred to the compliance stage of this proceeding. Any backpay due will be determined in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having concluded that Respondent, by discharging Manuel and Robert Vasquez and Richard Dicus on October 5, engaged in unfair labor practices violative of Section 8(a)(3) and (1), we are further persuaded that such conduct demonstrates that Respondent had completely rejected the collective-bargaining principle and its violations could only have had the effect of destroying conditions needed for a fair election." As the Union did reresent a majority of the employees in an appropriate unit prior to the discriminatory discharges, we conclude that only a bargaining order can adequately restore as nearly as possible the situation which would have existed but for the Respondent's unfair labor practices." Accordingly, we shall order Respondent, upon request, to bargain with the Union in the unit herein found appropriate. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union has been at all material times the statutory bargaining representative of Respondent's employees in the following appropriate unit for collective bargaining : all full-time employees and all regular part-time employees employed at the Employer's Santa Maria, California, operations, excluding office clerical employees, guards, and supervisors as defined in the Act. 4. By discharging Manuel and Robert Vasquez and Richard Dicus because they participated in the October 4, 1967, strike, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The strike which commenced as an economic strike on October 4, 1967, was prolonged by the Company's unfair labor practices, and was converted on October 5, 1967, into an unfair labor practice strike. "The Maxwell Company, 164 NLRB No. 97. "While the Union made no formal demand on Respondent for recognition, such a demand is not a prerequisite to our granting a bargaining order in these circumstances. Western Aluminum of Oregon Incorporated, 144 NLRB 1191, 1192; L. B. Foster Company, 168 NLRB No 15. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By refusing to reinstate Salvidor Casillas, Manuel and Robert Vasquez, and Richard Dicus, after their unconditional application, Respondent violated Section 8(a)(3) and (1) of the Act. 7. By threatening employees with reprisals and loss of benefits if they should join the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not violated the Act in respects not found herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Van Lines, Santa Maria, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals and loss of benefits if they should join a union. (b) Discouraging membership in Teamsters and Warehousemen, Local 381, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or in any other labor organization, by discharging or in any other manner discriminating against strikers in regard to hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist Teamsters and Warehousemen, Local 381, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization, as the exclusive bargaining representative of all its employees in the aforesaid appropriate unit,19 with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Manuel Vasquez, Robert Vasquez, Richard Dicus, and Salvidor Casillas immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired subsequent to the discharges of October 5, 1967. (c) Make whole Manuel Vasquez, Robert Vasquez, Richard Dicus, and Salvidor Casillas for any losses they may have suffered because of the discrimination against them, in the manner set forth in the section herein entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary for determination of the amount of backpay due and the rights of reinstatement under the terms of this Order. (e) Notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Post at its offices in Santa Maria, California, copies of the attached notice marked "Appendix."" Copies of such notice, on forms provided by the Regional Director for Region 31, after being signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the said Regional Director, in writing, within 10 days from the date of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with reprisals and loss of benefits if they should join a union. WE WILL NOT discourage membership in Teamsters and Warehousemen, Local 381, International "Described in paragraph number 3 of the Conclusions of Law. "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order " INTERNATIONAL VAN LINES 357 Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or in any other labor organization, by discriminating in any manner against employees because they strike or engage in any activity protected by the National Labor Relations Act. WE WILL NOT in any other manner interferewith, restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Teamsters and Warehousemen, Local 381, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent permitted by the provisos in Section 8(a)(3) of the Act. WE WILL, upon request, bargain collectively with Teamsters and Warehousemen , Local 381, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, as the exclusive representative of all employees in the appropriate unit described below and embody all understandings reached in a signed agreement. The appropriate unit is: All full-time employees and all regular part-time employees employed at our Santa Maria, California, operations, excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL offer to Manual Vasquez,Robert Vasquez, Richard Dicus, and Salvidor Casillas immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired after the discharges of October 5, 1967. WE WILL make whole Manuel Vasques, Robert Vasquez, Richard Discus, and Salvidor Casillas for any losses they may have suffered because of the discrimination against them. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. INTERNATIONAL VAN LINES (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 213-688-5801. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F. DOYLE, Trial Examiner : This proceeding, with the parties represented by the persons named above, was heard by me at Santa Maria, California, on April 3, 4, 11, 1968, on complaint of the General Counsel and answer of the Respondent.' The complaint dated November 29, 1967, was based on a charge filed by the Union on October 12, 1967.2 The complaint alleged in substance that the Company had violated Section 8(a)(1) and (3) of the Act by (1) the discriminatory discharge of four employees named, Sal Casillas, Richard L. Dicus, Manuel Vasquez , Sr., and Robert Vasquez because they had engaged in protected union activities and (2) by certain coercive conduct of company supervisors which is described hereinafter. In its duly filed answer the Company denied the commission of any unfair labor practices but admitted certain allegations concerning the nature of the Company's business and the Union. At the hearing, counsel for the parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record and to file briefs and proposed findings . The General Counsel and counsel for the Company have filed briefs which have been carefully considered. Upon the entire record in the case and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings and a stipulation of the parties at the hearing establish that the Company is a California corporation with a warehouse in Santa Maria, California. The Company is engaged in the transportation of household goods by motor vehicle. During the past year the Company in the course and conduct of its trucking operations within the State of California derived gross income in excess of $50,000 from operations performed pursuant to contracts or arrangements with Republic Van Lines, and other corporations which engage in the interstate transportation of household goods. During the year prior to the issuance of the complaint Republic Van Lines, derived revenues valued in excess of $50,000 for and from the transportation of household goods in interstate commerce between the different states of the United States. It is found, therefore, that the Company at all times material herein has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings and a stipulation of the parties at the hearing establish and I find, that the Union at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 'In this Decision International Van Lines is referred to as the Company or the Respondent; Teamsters and Warehousemen, Local 381, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the Union; the General Counsel of the Board and his representative at the hearing as the General Counsel; the National Labor Relations Board as the Board; and the Labor Management Relations Act, as amended, as the Act. 'All dates in this Decision are in the year 1967 unless specified otherwise 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES The Issues At the hearing the General Counsel claimed (1) that the evidence established that the Union began an organizational campaign among the Comany's employees and that because of the Company' s unfair labor practices the employees of the Company engaged in an unfair labor practice strike, during which the four employees named above were discharged because they engaged in the said strike and other protected union activities. The General Counsel claimed that the alleged discharges were designed to undermine the Union and to destroy its majority in an appropriate unit. He also contended (2) that the Company had violated Section 8(a)(1) of the Act by (a) threatening its employees with loss of economic benefits or detrimental reprisals, if they assisted the Union , and (b) by interrogating employees concerning their union membership and activities, and (c) by creating the impression that the Company kept the union activities of the employees under surveillance. The Company at the hearing contended that the strike of employees which occurred on October 4, 1967, was not an economic strike; that it occurred without notice or warning and without prior demand for recognition made by the Union upon the Company; and that the strike was neither caused nor prolonged by any unfair labor practices on the part of the Company and that the named employees were lawfully replaced in the course of the work stoppage . The Company denied that any of its officers had committed any acts which attempted to interfere, restrain, or coerce its employees. Undisputed Facts in Background of Controversy As noted previously , the Company engages in the business of moving household goods by motor van. Its place of business is located in Santa Maria, California, and a large portion of its moving business is derived from the movement of personnel , both civilian and military, into and out of Vandenberg Air Force Base which is in the area. The Company is a corporation with its stock owned by two brothers; Robert L. McEwan owns 30 percent of the stock, is the company president and the active head of the business at Santa Maria . John R. McEwan , Jr., owns 70 percent of the stock , but has his own business in Southern California and did not participate in the direct events of this controversy or testify. Two other McEwans participated in these events, one is the father of the owner-stockholders, by name, John R. McEwan , Sr., and the other is the son of Robert L. McEwan, by name, John G. McEwan. It is alleged in the complaint that John G. McEwan who is approximately 17-18 years of age and is a divinity student attending a seminary at Concordia , Missouri, and who worked during the summer for the Company committed unfair labor practices. In order that this boy may not be confused with his elders, he will be referred to herein as "Johnny McEwan." It is undisputed that the Company bought its business as a going concern from one, A. J. Smith, in July 1967, and during that month John R. McEwan, Jr., took over its active control. It is likewise undisputed that around the last of August 1967 the Union began an organizing campaign among the employees of all the van and storage companies located in and around Santa Maria, California. This organizational campaign was directed by Ben H . Sanders, the secretary-treasurer of the Union, who testified in the proceeding. It is conceded by the counsel for all parties that the organizational activity of the Union extended to approximately 23 individual companies who were owned by 10 or 11 separate employers . It is likewise conceded that the Company is a single employer and that the Company is not a member of any employers association of moving companies, van lines or other employers. Indeed, it is conceded that in the Santa Maria area no group or association of van-line employers exists. It is likewise undisputed and conceded that while the Union's organizational activities were directed to numerous employers, each employer was organized as a single employer unit and when the Union sought certification of representatives, it sought certification for the employees of single employers; thus, when the Union filed a petition for certification in Case 3l -RC-666 on September 21, 1967, it named this employer as International Van Lines and asked for certification of a unit composed of, all truck drivers, packers, traders, order fillers, checkers, warehousemen, loaders , and helpers, etc., of the Company at its Santa Maria, California location . The petition stated that the Company employed five men in the appropriate unit which the Union proposed. The Organizational Efforts of the Union As Regards the Company It is undisputed that in the course of its general campaign in the Santa Maria area the Union experienced some success in recruiting membership from the employees of the Company. Of the Company' s personnel Richard L. Dicus, Robert Vasquez, and Manual A. Vasquez, and David Dicus signed authorization cards for the Union on August 23, and David Poncetta signed an authorization card on September 11. On September 21, George A. Pappy, Esq., of the law firm of Brundage and Hackler as attorney for the Union filed a petition with Region 31 of the Board (Los Angeles, California) requesting certification of representative in the appropriate unit of the Company' s employees at Santa Maria, California. This petition stated that the number of employees was five, and that the Union represented more than 30 percent of the employees in the proposed unit. The Strike Without Demand for Recognition, Without Notice to the Company, and while Board Action was Pending The petition filed on Thursday, September 21, was transmitted by the Regional Office by regular mail from Los Angeles and received by the Company on September 25, the following Monday . The strike of the employees of the Company and all other van lines in the area occurred on October 4, some nine days later . It is undisputed that although the Union had secured authorization cards of four employees on August 23, and of a fifth employee on September 11, it had not prior to the date of the strike, demanded recognition of the Company or told the Company that it claimed to represent the Company's employees, or offered to the Company to prove its majority by a showing of authorization cards to either company officials or to a third party who might determine their authenticity; nor did the Union check the cards against any payroll of the Company or request the Company to provide any payroll records for the purpose of verifying its claimed majority. INTERNATIONAL VAN LINES 359 Thus, the only claim of majority status or request for recognition transmitted to the Company is that contained inferentially in the transmittal of a copy of the Union's petition from the Board to the Company, with the Board's notice that a representation proceeding had been instituted. Thus, having received notice from the Board of the pending proceeding the Company awaited action by the Board. With this the prevailing state of affairs, the Union struck the Company and all other van lines in Santa Maria on October 4. The Undisputed Cause of the Work Stoppage Ben H. Sanders, secretary-treasurer of the Union testified as to the Union's reasons for striking the Company. Called as a witness by the General Counsel, he testified that a meeting was held of all employees of all the van lines in the Santa Maria area on October 2. Sanders testified that he announced to the "members attending the meeting that some companies, including International Van Lines, had withdrawn their consent to an election, and we were going to have time - wanted to have time to check it out to make sure that it was right " It was then agreed by union adherents present that another meeting would be held the next evening. At this meeting, Sanders, "announced to the employees attending the meeting that we had checked with our legal counsel and found that International Van Lines and other van lines that we had filed elections on and the companies that had consented to an election had withdrawn their consent for an election." In the discussion that followed, it was decided to strike International Van Lines and all other van lines. On cross-examination, Sanders admitted that he did not know, if any documents consenting to an election had been filed with the Board by the Company; nor had he any knowledge that the Company had consented to an election either verbally or in writing. Sanders said that he had called union counsel in Los Angeles, who told Sanders that he (counsel) had called the Regional Office of the Board and someone there had told him (counsel) that some person had gone to the Regional Office and "withdrawn all the consents to the elections on the three petitions that had been filed." It should be noted at this point that the General Counsel failed to prove in this entire case that (1) any written or verbal, formal or informal consent to election, was ever given by the Company to the Union or to the Board or (2) ever withdrawn by the Company. Undisputed evidence offered by the Company is to the effect that no consent was ever given and no consent was ever withdrawn. As stated previously, at this point in time the Company was awaiting action by the Board on the Union's pending representation proceeding. On redirect examination, the General Counsel asked Sanders if the erroneous "withdrawl of consent" was the only reason for placing pickets at International Van Lines. In answer Sanders said, "The other reason, other employees from other companies were being dismissed." On the morning following the second meeting the Union picketed the premises of the Company and all other van lines in the Santa Maria area. Richard Dicus, one of the union adherents who was called as a witness for the General Counsel testified that when he arrived at the Company's warehouse on October 4 he was surprised to see pickets patrolling in front of the place. He did not know these men; they were not employees of the Company, but he thought they were employees of some other van line in the area. Meador, the office manager of the Company came to the office door at that point and Dicus asked him, "What goes here?" Meador replied that he didn't know, and went back into the office. A few minutes later Robert McEwan drove up to the office and went inside. In a moment or two he came out with a cup of coffee in his hand and Dicus said to him, "Where is your union contract?" McEwan said that he had not seen a union contract. Then Dicus said that the men had been told at the union meeting and by the pickets that the Company's consent to an election had been withdrawn, and all that the men wanted was a chance to vote for it or against the Union. McEwan replied that he had not withdrawn any consent to any election and looked very surprised. Dicus then suggested that if he were permitted to call the union office that the Union would send a contract over to McEwan in about 10 minutes. At that point McEwan replied, "Hell, no. I'm not signing anything," and went back into the office. Later in his testimony, Dicus stated most positively several times that at the meeting on the evening of October 3, the persons at the meeting discussed the van line situation in general but did not mention International Van Lines by name at any time. However, on redirect after some prompting by leading questions, Dicus explained that he left the meeting early and International Van Lines might have been mentioned at the meeting after he left. Dicus said that on the morning of October 4 when he arrived at the picket line, the picketing was being conducted by two men with whom he was not acquainted. Present at approximately this time were employees Manual Vasquez, Sal Casillas, Robert Vasquez, and some other men with whom he was not acquainted. He explained that the Company had a large movement of office equipment planned for that day, so there were additional, casual workers ordered for this large office move. It was stipulated by counsel for the parties that the picket signs carried by the men had at the top the word "Picket" and on the next line "Unfair to Teamsters Union Local 381." In addition to this uniform top portion of the picket sign, one picket sign had the added slogan, "No elections. Why." Another sign had the added slogan, "No contract." Another had the added slogan, "Big money for attorneys nothing for us." Robert L. McEwan, president and general manager of the Company, testified that on October 4, he received a phone call from Meador, the office manager, at approximately 6.45 a.m. Meador told him there were pickets out in front of their office and asked him to come right over He was dressing at the time so hurried and arrived over at the office and asked Meador what it was all about. Meador said that he didn't know anything about it, so McEwen went out to talk to the pickets. At that time in the group there were four men present, who were known to him. They were Richard Dicus, Manuel Vasquez, Sal Casillas, and Robert Allen. He went across the street to the men and said, "We have a job to do. Are you going to go to work?" They said, "No, we don't have a contract. We cannot cross the picket line." He replied that he did not see how he could sign a contract when he had never been presented with one. One of the men asked, if he wanted them to get a contract and he replied, "Not at this time." He went back to his office and phoned the Federal Electric Company for whom his Company was to perform a big office moving job that day. He explained 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his situation to Mr . Castle of Federal Electric Company and asked if he could have a day's delay in making the move Castle replied that under the circumstances his company would be satisfied if the movement of their office was made on the following day The Strikers are Replaced McEwan testified without contradiction that having arranged the postponement with Federal Electric Company Meador and McEwen then tried to locate men locally to replace the strikers , so that the move could be performed the next day . When they were unsuccessful in finding replacements from local sources, McEwan called his brother John R . McEwan, Jr., at Oxnard , California, and explained his plight to him . John said that under the circumstances he had some men that he thought he could make available to the Company . On the following morning, his brother supplied to him five men named Harold Mitchell, Gary Hoffman , Blaine Burlington, Ysmael (Easy) Contreras, and Dan Cross. With the assistance of these men the Company was able to complete the move of the Federal Electric Company. On October 5, the Company sent identical telegrams to Vasquez, Dicus, and Robert Vasquez , stating, "For failure to report for work as directed at 7 a in on Wednesday, October 4, 1967 you are being permanently replaced " McEwan explained that the first employment of the men sent to him by his brother did not appear on the payroll records of the Company because he agreed with his brother to reimburse the brother for the time the men worked for him and for which the brother paid these men. In addition to the men obtained through his brother McEwan was able to hire other men to work for him from time to time as his business required . The Company was able to continue its operations in that fashion and the picketing was continuing at the time of the hearing herein. Robert L. McEwan' s Illness It is undisputed that on April 8, 4 days after the work stoppage, Robert L . McEwan was hospitalized at Santa Maria for major surgery . He continued in the hospital until October 28 when he was discharged and went to Oxnard , California, for a period of approximately 1 week, to his mother's home for a further period of convalescence During the period that he was hospitalized and inactive his father, John R. McEwan, Sr., came to Santa Maria and gave what assistance he could to the business operations of the Company. The Alleged Interference, Restraint and Coercion The fact that there are four members of the McEwan family, involved in the events of this proceeding, to either a less or more extent, occasioned some confusion among McEwans at the hearing at it appears that the draftsman of the complaint in certain particulars mixed up these persons. At the hearing counsel for the General Counsel stated that the John R . McEwan, Jr., alleged to be an officer of the Company in paragraph V of the complaint, was not John G. McEwan (herein previously designated as Johnny McEwan) the son of Robert L. McEwan. After this statement without objection paragraph XII(a) was amended to read "by John G. McEwan" instead of "By John McEwan , Jr." This clarification eliminated from any allegations of coercive conduct , John McEwan, Jr., the officer of the Company who lives at Oxnard , California, and did not appear in the events taken place at Santa Maria, and John R . McEwan, Sr., who was a stand in for his son for a few weeks in the course of his son's hospitalization and convalescence and who testified most briefly in this proceeding . John R . McEwan, Sr., appeared on the witness stand only long enough to say that he never discussed union activities with any of the employees while he was at Santa Maria. David Dicus, the son of Richard Dicus , is the principal witness to the alleged unfair labor practices committed by Johnny McEwan. David Dicus is a young man who is a student at California Polytechnic Institute , San Luis Obispo. Employee Robert Vasquez corroborated to some extent some of the testimony of David Dicus. It was during the cross-examination of Robert Vasquez, that it appeared that there had been a case of mistaken identity as to the McEwan who had held certain conversations with David Dicus. In the course of that cross-examination Vasquez said that the McEwan who had talked to him and Dicus was the son of Robert L. McEwan, a young man 16-17 years of age. The testimony of David Dicus further clarified this point. David testified that when the Company was run by Smith, the former owner, he had a summer job as a part-time employee with the Company . When David was asked what Johnny McEwan's position with the Company was, he said that Johnny was a "swamper , just like I was a swamper being a helper." David testified that in the first conversation that took place around September 1 that he was unloading a truck with Robert Vasquez and Jimmy Weaver, employees at the warehouse . David said that he did not know what lead up to the conversation but his testimony is as follows: Johnny said , "that if the Union did come in, that our fishing trips would be gone. We would never have any more, and that is about as good as I can remember on the conversation then ." David said he did not know what provoked this conversation but, "John came out with that little statement =" David further testified that some three weeks later Johnny came to David's trailer-home to say good-bye to David because Johnny was going back to college in Missouri, and to help David sand an automobile which David owned preparatory to it being painted . While they were so engaged, the conversation veered to the subject of the Union . David said something about the Union had "better medical plans." At that point Johnny "come up with a statement, his father would handle the situation the same as he did or a friend of his did, in Virginia , that he would make it so hard on the workers it would make them want to quit . That is the whole conversation right there." In the course of further examination by me, David testified that this conversation arose while the boys were sanding David's car which "John's grandfather was going to paint" for David. The complaint alleges by three separate paragraphs that on October 2, Robert L. McEwan interrogated employees, threatened them with loss of economic benefits or reprisals because of union activity and promised employees promotions to supervisory positions if they refrained from becoming or remaining members of the Union. In support of these allegations the General Counsel called as a witness Manuel Vasquez , an employee. Vasquez testified that about a week prior to October 4, he had a conversation with Robert L. McEwan in the warehouse of the Company. As to this conversation Vasquez testified as follows. INTERNATIONAL VAN LINES 361 A. I was looking in the - some overseas shipment I was working, and Mr. McEwan walked up to me and asked me if I knew anything about this union business that was going on. Q. Yes? A. And I told him that I did, and he asked me, "Well, are you going - are you fellows going to join9" I told him, "Yes", that I think we would. Well, it was not exactly the words he said , "Are you going to go along with it?" I told him , "Yes", I though we would, and what did I mean by we would . And I told him that most of the guys working in the warehouse, that worked with me in the warehouse, employees of International and - TRIAL EXAMINER- Go right along What else was said? THE wiTNESS• He says, he told me, you know, he did not think that the union would be good for the company, and he said that he had heard that me and Dicus, me and Tex were the instigators. I told him that was not true, but that we were going to go along - I made the mistake if I said I was going to go along with the boys, and I told him that, you know, a lot of the companies in Santa Maria were paying real cheap wages, and that they had talked to me about going along with them . That was the fellow employees in different companies. And I told them I was going to go along with them and go with the Union . And he did not say nothing else, I don't think . He turned around and walked back in the office. Manuel Vasquez also testified that on either October 2 or 3 he had a second conversation with Robert L. McEwan , in the latter' s office. Vasquez testified that on this occasion he was in Meador' s office and McEwan nodded with his head for him to come in When he was in McEwan's office McEwan showed him some figures on a pad and told him approximately how much money the Company was going to make in a future period . McEwan then said, "that if the Company made any profit , that the money - the profit the company made would go to paying casual labor during the summer time , because the wages had been so high" - "If we did not join the Union , that the money could be distributed among the employees by having barbecues and picnics and parties and fishing trips." Alter his attention was directed to the subject of a bonus by the General Counsel, Vasquez testified that McEwan also said that if the men joined the Union that they would lose the yearly bonus. It's one of the oddities of this work stoppage that when Vasquez was asked if he went "on strike on October 4" Vasquez replied, "I don' t know what you mean I went out on strike. I reported for work ." When he was asked if he worked he answered , in the negative and said that he did not cross the picket line. When Robert L. McEwan was called as a witness on behalf of the Company he said that he had a conversation with Manuel Vasquez between September 21 and October 4 in regard to the Union . His version of the conversation was somewhat different from that furnished by Vasquez. McEwan said he made the statement that if the Union was to come into the Company' s organization that the high rate of pay which would be paid to casual labor would take away from the profit situation of the Company. And if there were no profits the Company might not be able to pay Christmas bonuses or furnish the employees with fishing trips, barbecues and picnics However, he also told him that whether the Union came in or not, if the corporation made a profit that the Company would give Christmas bonuses, fishing trips, barbecues and picnics , etc. In this connection it should be noted that A. J. Smith, the prior owner of the Company had on occasion given picnics , fishing trips or a bonus to the employees . In the short period of time, during which McEwan had owned the Company he had not set up any practice of procedure on bonuses, picnics, barbecues, or fishing trips; his conduct of the business had not reached those matters. Richard Dicus called as a witness by the General Counsel stated that the Company had promised him benefits and threatened reprisals in an attempt to influence him in his voting for a collective -bargaining representative Dicus testified that on October 2 McEwan called Dicus into his office to talk to Thomas W. Arruda, who was the labor relations consultant and trial counsel for the Company . Dicus testified that when he was seated Arruda said to him that McEwan nad called him in, "to see if we cannot do something about these Union things that are going on, and we would like to know if you could give us some help ." Dicus testified that then Arruda looked at some papers on his desk and said that there were five names signed on authorization cards that were eligible to vote in the election. Dicus, assuming that Arruda knew the names of the Union employees then told him that they were David Dicus, David Ponsetta , Robert Vasquez, Manuel Vasquez, and himself. Arruda then said that he couldn 't see how David Dicus, a summer employee and David Ponsetta who had worked only a few days could be eligible to vote Then Arruda asked him how he felt about the "Union thing." Dicus said he could take it or leave it. Then Arruda said , "Bob and I have been talking it over, and we're thinking about making you the foreman and giving you a substantial raise in pay." Then Arruda said, "we would like to do something about this Mexican thing around here." Dicus said he would like the raise in pay but he would like to have the Union too, because the benefits of the Union were pretty good Then Arruda said he was going to have just as good benefits without the Union as he would have with the Union and that Bob McEwan was working on an insurance proposition that Dicus was interested in. According to Dicus, Arruda closed the conversation by saying that he could not fulfill any of these promises, if the Union came in, that it would be illegal. As he was leaving the office, Arruda said to Dicus, "well we can depend on you for a no vote, then." Dicus replied in the affirmative. In the course of his testimony Robert L. McEwan testified that some time in August , Dicus came to him and said that he was worried about his job, because Mexicans were taking over so much of the moving industry in the area. McEwan told Dicus not to worry, that McEwan was planning on making Dicus, either operation manager or foreman , as soon as he had the operations running smoothly. After the advent of the union organizational campaign , McEwan told Dicus during the first part of September that Arruda , his labor relations counselor had cautioned McEwan that he could not promote Dicus to the position of operations manager or foreman at that time because such a promotion might be considered an unfair labor practice designed to dissipate the Union's representational strength . According to McEwan, Dicus said that he didn't understand that, and asked if he could talk to Mr. Arruda the next time the labor relations consultant was in town . On October 2, Arruda visited the Company and at that time McEwan told Dicus that Arruda was in his office if Dicus wanted to talk to him. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dicus joined Arruda and McEwan in the office and said to Arruda that he understood that Arruda had said that he could not be promoted at that time, and Dicus asked why. Arruda explained that to promote him would be like trying to break the Union or dissipate its majority. Arruda said that the petition said that there were five employees. Dicus said that he knew who the men were who were adherents of the Union and started to name them, but Arruda stopped him saying, "I don't want to know who they are." Then Arruda explained that Dicus had a right to join the Union or to refrain from joining Dicus replied that he didn't care whether the Union got in or not, but he thought that McEwan and he could sit down and work out an arrangement between themselves. Arruda told Dicus, that if the Union came in and McEwan still wanted to promote him, he could. But he couldn't do it at that time, because it would look as though he was trying to take away the Union's majority. McEwan denied that Arruda asked Dicus how he was going to vote or that the words vote or voting were mentioned in the course of the conversation at any time. McEwan testified that he was in the office during the entire conversation and several times stopped Dicus from closing the door. The Alleged Requests for Reinstatement At the hearing the General Counsel offered proof that, "during the month of October, both Vasquez and Dicus inquired of McEwan as to whether they would have their jobs at the end of the strike." This short passage from the General Counsel's brief is quoted because the actual testimony seems to fall far short of an unconditional offer to call off the strike and an unconditional request for reinstatement Richard Dicus testified that that while McEwan was in the hospital he called at the hospital to see McEwan. In the course of the conversation with McEwan he asked if he was going to have a job or not. McEwan said that he did not know how the strike was going to turn out and he could not say, whether Dicus would have a job or not at that time. After McEwan left the hospital and was back at the warehouse of the Company, Dicus and his wife called on McEwan at the office. Again he, "asked Mr. McEwan if I was going to have a job, and he told me practically the same thing." McEwan said, "I don't know. I don't know how this thing is going to turn out as far as I'm concerned, it is the principle of the thing." The General Counsel then asked Dicus if he was asking for his job back at that time or "after the strike was over " Dicus replied that at "this particular time I asked him after the strike was over " Manuel Vasquez also testified that he went to the hospital to see McEwan on a Sunday. He told McEwan that the boys had talked about going back to work and they would like to know how he felt about it. McEwan told Vasquez that physically he was not in a position at that time to talk about their going back to work, that after he got a little better and he felt more like talking, that his door would always be open to any of the men who wanted to talk to him. Richard Dicus testified further that around December 21, Manny Vasquez, Robert Vasquez, and himself went to the office to see if McEwan would give them their jobs back. Manny Vasquez asked McEwan if he would consider giving the men their jobs. McEwan replied that he could not do it. He said that he had men working for him that had stuck with him during his trouble and he just could not fire them to make room for the former employees. He asked them how they would feel if he put them back to work, and 2 or 3 weeks later fired them. McEwan said his door was always open to the men, but at that time he could not do it. In the course of his testimony, McEwan said that at the time the various employees visited him at the hospital he was recovering from major surgery and was under the influence of sedatives, that he simply told the men that he was in no position to discuss anything concerning the operation of the Company at that time. In addition to the verbal testimony, the General Counsel introduced certain documents which showed the payroll of the Company for weeks immediately prior to and after the initiation of the strike. These records demonstrate that no one worked on either October 4 or 5. From McEwan's testimony which is uncontracted it is clear that his brother furnished him with 5 men who worked for a short period of time after the beginning of the strike and that thereafter McEwan made do with such men as he could hire in the locality. It is undisputed that from October 4 until the date of the hearing the strike and picketing at the warehouse continued. On the day before the hearing a final effort was made by employees Vasquez and Dicus to confer with McEwan and settle the strike and arrange for a return of the men to their jobs. McEwan said that he would confer with his attorney on the situation and the employees offered to submit for consideration of McEwan, sample Teamster Contracts from Monterey or Sacramento. However, the hearing previously adjourned, took place as scheduled. The testimony related above does not purport to be a summary of all testimony and all documentary evidence submitted and received at the hearing, it is merely a summary of the testimony of the principal witnesses for the parties which presents their contentions. All testimony, and all documents have been considered in reaching the conclusions hereafter stated, but some testimony of relatively lesser importance has not been narrated here in the interest of brevity. Concluding Findings As the reader must have noted the sequence of events leading to the principal issues here, the work stoppage, is undisputed. This evidence established beyond any possible doubt that the Union organized the employees of the Company, but did not demand recognition from the Company, or offer to prove to the Company its majority status by the presentation of authorization cards or by any other means. The Union first chose to use the procedures of the Board to settle the question of representation, so it duly filed a petition for certification of representative with the Regional Office, (Regional Office 31) Los Angeles. This conduct of the Union was in accord with the spirit and the hope of the Congress in passing the National Labor Relations Act, and the various amendments, whose purpose was and is to insure industrial and employment stability and harmonious labor relations conducted in accordance with law by collective bargaining, and not by "quickie" resorts to the use of economic force which the Congress on several occasions had found to be inimical ;to our national welfare. However, the Union's reasoned course of action, was soon abandoned and in its place the Union, with6ut demand or notice to the Company, initiated a work stoppage and picketing, and here we reach the crux of this proceeding. Why did the Union abandon the lefgal procedure of the Board and resort to its "quickie" whrk stoppage? Ben Sanders, the Union officer in charge of, the organizational efforts of the Union testified that this INTERNATIONAL VAN LINES 363 action was taken for two reasons, (1) he had received hearsay information that the Company had withdrawn its consent to an election and (2) some other employers in the area had fired some union adherents. As to (1), the fact is undisputed that the Company had not consented to an election, and had not withdrawn any consent or withdrawn any action which could be described as purported consent. The Company, at that point was awaiting further action of the Regional Office in the union-instituted proceeding. At that point the Union ordered the work stoppage and picketing began ' At this point, in my judgment the question must be raised, was this "quickie work stoppage," a protected activity under the Act9 I am familiar with the line of cases which appear to hold that all concerted work stoppages, except those for a clearly illegal purpose, are protected under the Act, but in my judgment this case arising after 30 years of collective bargaining calls for a reexamination of this so-called blanket protection of work stoppages upon the fiction that they are legal strikes, either "economic" or "unfair labor practice" in nature. To place this question in its proper focus let me say that "quickie strikes" which arise spontaneously because of an unfair labor practice committed by an employer, or because of unsafe, or unsanitary conditions developing on a job are, in my judgment, properly protected by the Board. But, the rationale protecting those strikes may not be stretched to this work stoppage without nullifying the intent of the Congress, in enacting and in amending the Act. Most of the writers on this subject define a strike as a concerted withholding of their labor by a group of employees to exert economic pressure upon an employer with whom they have a labor dispute. Here, at the time of the work stoppage, there existed no labor dispute; the Union had not notified the Company of its claimed majority representative status; it had not demanded recognition and it had not been refused At that point, no difference existed between the Union - employees and the Company. The Company waited, expecting the law as administered by the Regional Office to take its course. At that point the Union called a work stoppage of this Company because allegedly (1) some other van line in the area had done something which the Union didn't like and (2) for the purpose of muscling its way to representative status by the use of economic force.' I do not believe that such conduct should receive the protection of the Act. Thirty years have passed since the passage of the Wagner Act, but even in that long time, we 'In passing it should be stated that in his testimony, Sanders after some leading questions , testified that he received his information concerning the withdrawal of consent from the Union's counsel, George A Pappy, Esq , in a phone call to Mr Pappy's office in Los Angeles, and that Mr Pappy had received the information from "someone" in the Regional Office I do not credit this testimony of Sanders Mr Pappy is an experienced labor counsel , and a former employee of the Regional Office I have such confidence in Mr Pappy's ability and integrity and in the ability and integrity of the personnel in the Regional Office, that this testimony proved to be utterly without factual foundation , cannot be credited In my judgment, this bit of testimony is a fabrication by Sanders to give a semblance of excuse for his arbitrary and precipitate conduct in calling the work stoppage I do not credit this attempt by Sanders to slough off the responsibility for his conduct on Mr Pappy or Regional Office personnel 'I have stated previously that I do not credit the testimony of Sanders as to the alleged withdrawal of consent to an election In my judgment, the Union, through the Teamster officers, simply decided to abandon the Board's procedure and to muscle their way to representative status by economic force, without displaying proof of majority status to either the Company or the Board should not forget that it was a veritable plague of strikes, often caused by arbitrary, unreasoned and unreasoning action by employers and unions , that brought the Wagner Act into being to bring order out of chaos that threatened our national existence. Its purpose was to promote harmonious labor relations, and employment stability by the means of collective bargaining and the use of legal procedures, and thus displace the bull-headed intransigence which was the hallmark of many employers and union leaders of that era. Upon a consideration of the causes which brought the Act into being, and the clearly stated Congressional purpose in passing the Act, and its amendments, I cannot see how this work stoppage can be found to be a protected activity under the Act. ' Support for this position is found in the decision of the Court of Appeals for Fourth Circuit and of the Supreme Court in the Washington Aluminum case which states and answers the question here presented .' In the cited case the employees of Washington Aluminum Co. walked off the job because the place of their employment was in their opinion "too cold." The Circuit Court noted that no notice to strike was given , and no complaint about the cold given to the Company before the strike The Supreme Court found notice to strike in some individual complaints lodged with supervisors and excused the failure to give notice on the ground that the employees had no bargaining representative , - a deficiency not present here. The reasoning of the circuit court in pertinent part is as follows: There was some variation in the testimony of the employees as to the real reason for the walkout. But even if it be assumed their sole purpose was to protest the low temperature of their place of employment we do not believe their actions should be considered a protected activity under the facts and circumstances here presented . One of the fundamental policies of the National Labor Relations Act, 29 U.S.C. Section 151 (1958), is to secure industrial peace and prevent strife and disruption by encouraging negotiation and peaceful procedure for the attempted settlement of the demands of a party. That is not to say that employees may not under any circumstances , exert concerted pressure on their employer in their efforts to gain compliance with their demands. However, the office of a demand as a condition upon the use of concerted pressures is well recognized As this court stated in Jeffery-De Witt Insulator Co. v. N. L R B., 91 F2d 134, 138, 1 LRRM 634 (4th Cir. 1937): . A "strike" in such common acceptation, is the act of quitting work by a body of workmen for the purpose of coercing their employer to accede to some demand they have made upon him, and which he has refused.' An important and necessary qualification of the right to exert pressure on an employer through work stoppages is that such pressure be exerted in support of a demand or request made to the employer.... The decision then cites N.L.R B. v. Ford Radio and Mica Corp., 258 F.2d 165 (C A. 2), to the following effect: In N.L.R B v Ford Radio & Mica Corp., 258 F.2d 457, 465, 42 LRRM 2620 (2nd Cir. 1958), the court said: The duty to bargain collectively is but a facet of the underlying purpose of the entire Act in promoting and 'Washington Aluminum Co , 291 F 2d 869, 48 LRRM 2528 reversed 370 U S 9, 82 S Ct 1099, 50 LRRM 2235 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD encouraging the peaceful settlement of labor disputes. Placing the activity here under the broad protection of section 7 would clearly frustrate that purpose. To hold that those engaging in a strike had an unfettered right to refuse not only to discuss their grievances but even to name them would, far from promoting the peaceful settlement of labor disputes, inject a judicially fashioned element of chaos into the field of labor relations. "The purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right to collective bargaining for the purpose of preserving industrial peace... " We do not hold as a matter of law that employees engaging in concerted activities must give formal or even informal notice of their purpose. However, where the employer from the facts in its possession could reasonably infer that the employees in question are engaging in unprotected activity, j ustice and equity require that the employees, if they choose to remain silent, bear the risk of being discharged We believe this principle particularly applicable where, as here, the cause of the objectionable condition was largely fortuitous and substantially beyond the control of the employer and was of but brief duration, and where, even beyond the neglected opportunity for inquiry, negotiation and settlement , effective measures had been taken by the employer before the protest was even staged. The company was afforded no opportunity to avoid the work stoppage by granting a concession to a demand of the employees. The Supreme Court, Mr. Justice Black writing, reversed the circuit court on the following reasoning We cannot agree that employees necessarily lose their right to engage in concerted activities under Section 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of Section 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. To compel the Board to interpret and apply that language in the niggardly fashion suggested by the respondent here would only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working conditions. Indeed, as indicated by this very case, such as interpretation of Section 7 might place burdens upon employees so great that it would effectively nullify the right to engage in concerted activities which that section protects. The seven employees here were part of a small group of employees who were wholly unorganized. They had no bargaining representative and, in fact no representative of any kind to present their grievances to their employer Under these circumstances, they had to speak for themselves as best they could As pointed out above, prior to the day they left the shop, several of them had repeatedly complained to company officials about the cold working conditions in the shop. These had been more or less spontaneous individual pleas, unsupported by any threat of concerted protest, to which the company apparently gave little consideration and which it now says the Board should have treated as nothing more than "the same sort of gripes as the gripes made about the heat in the summertime." The bitter cold of January 5, however, finally brought these workers' individual complaints into concert so that some more effective action could be considered. Having no bargaining representative and no established procedure by which they could take full advantage of their unanimity of opinion in negotiations with the company, the men took the most direct course to let the company know that they wanted a warmer place in which to work. So, after talking among themselves, they walked out together in the hope that this action might spotlight their complaint and bring about some improvement in what they considered to be the "miserable" conditions of their employment This we think was enough to justify the Board's holding that they were not required to make any more specific demand than they did to be entitled to the protection of Section 7. [Emphasis Supplied.] Upon a consideration of the lines of legal reasoning in these decisions I must hold that the Union-ordered work stoppage of October 4 was an unprotected activity. Here there was no spontaneous work stoppage and the men were represented by a collective-bargaining agent -a local of a national union. However , the collective-bargaining agent chose to proceed by the use of economic force, and acted in absolute derogation of the Act, which it had previously invoked; because of its displeasure with some other employer in the Santa Maria area. However, the General Counsel contends that the Union's action of October 4 was a protected unfair labor strike. It is not clear from her argument, what action of the Company was an unfair labor practice which caused or prolonged this alleged strike, and as I view the evidence there can be no doubt as to why this work stoppage occurred and why it has continued until the date of the hearing. On that point we have the questionable testimony of Sanders himself and the testimony of McEwan, which I credit, to the effect that the Company took no action against the Union or its adherents prior to the stoppage. I have examined the Company's conduct from every angle and I can perceive no element of unfair labor practice which caused or prolonged the work stoppage. At best, for the General Counsel's purposes, this strike could be only an economic strike for the purpose of gaining recognition of representative status from - the Company. I recognize the fact that the Board may rationalize that transmittal of a copy of the Union's petition to the Company was by inference a demand for recognition and when the Company did not recognize the Union immediately, the Union's strike action was justified. Of course, such a finding would disregard those factors in the evidence previously enumerated, but in case that point may be reached by the Board , I will determine the rights of the so-called strikers to reinstatement. On October 5, the Company sent Manuel Vasquez, Robert Vasquez, and Richard Dicus a telegram stating that "for failure to report for work as directed at 7 a.m Wednesday, October 4, 1967 you are being permanently replaced." The testimony of McEwan which is uncontracticted and which I credit, establishes that on October 4, he made arrangements with his brother for replacements of temporary duration and that hereafter he hired such men as the circumstance of the strike and the labor market afforded as permanent replacements. It has been held for many years on the highest authority that an employer has the right to replace economic strikers and continue his business despite the strike if he can.' Therefore, I find that the action of the Company in replacing the economic strikers was not a discriminatory discharge as alleged in the complaint and was not an unfair labor practice. 'Mackay Radio and Telegraph Co, Inc, 304 U S 333. INTERNATIONAL VAN LINES At this point we may turn to a consideration of the rights of the replaced economic strikers to reinstatement to their jobs. Here, it is undisputed that the strike which began on October 4, 1967, continued until the date of the hearing on April 3, 4 and 11, 1968. The testimony of the employees themselves is clear on the question of reinstatement rights. Their first worry about their jobs was couched in the question, would they get their jobs back, after the strike was over. Up to the day before the hearing the employees, with the union officials in the background, sought to induce McEwan to enter into a version of the Teamsters contract and to reemploy the strikers. The law is clear on this point; if economic strikers call off or abandon their strike, and if they make an unconditional offer to return to work, they have a right to be reinstated in their former or equivalent positions, if the employer has not hired permanent replacements for the strikers or if the employer has an equivalent job open. In this case, none of these conditions to reinstatement were ever fulfilled by the strikers, and the proof offered by the General Counsel is fatally defective, in that this transcript does not disclose that the Company had vacant jobs to which the strikers could have been reinstated. To enumerate these deficiencies; (1) the strikers never abandoned or called off their strike, but on the contrary continued it; (2) they made no unconditional offer to return to work; (3) they had been permanently replaced and (4) there is no proof in this record that there were equivalent jobs open which could have been given to the strikers. Therefore, I find that the failure of the Company to reinstate the strikers was not an unfair labor practice as alleged in the complaint. The complaint herein alleges that the Company violated Section 8(a)(1) of the Act, by specific conversation of certain individuals. One of these is Johnny McEwan, son of one of the stockholders of the Company. It is undisputed that this teenage college boy was a summer helper at the Company as was his friend, David Dicus, another college student. Johnny McEwan is the son of one of the owners of the Company and David Dicus is the son of Richard Dicus, a leading union adherent. These part-time, casual, summertime employees are involved in 365 this controversy, only by the accident of birth and filial loyalty. According to David Dicus, Johnny McEwan offered the opinion to his friend David that Johnny's father would work the men so hard they would quit. On another occasion as they sanded David's "hot rod," Johnny reiterated this statement. I do not think this expressed opinion of one college boy to his chum; both of whom are known to the employees as "helpers" of summertime duration only, constitutes an unfair labor practice on the part of this Company. The General Counsel's claim that this opinion of Johnny McEwan binds the Company, based only on his relationship to his father, is, in reality an admission of just how insubstantial is the General Counsel's case. There are other conversations alleged in the complaint to be violations of Section 8(a)(1) of the Act. They involve a conflict in testimony between McEwan and employees Dicus and Vasquez. The differences in the testimony of the witnesses as to these conversations goes largely to their timing and the factual context in which the conversations occurred. Upon a consideration of all the evidence and the bearing and demeanor of these witnesses, I credit the versions of these conversations given by McEwan. His version of these conversations seems to be more consistent with the totality of the evidence and the undisputed sequence of events from the time the Company acquired the business from its former owner, until the time of the hearing. Furthermore, I can perceive no threat of force or economic reprisal in these conversations. Therefore I find that the Company did not violate Section 8(a)(1) of the Act as alleged in the complaint.' Upon a consideration of all the credible testimony and documents submitted in the case it is found that the General Counsel has failed to prove by a preponderance of the credible evidence that the Company committed any of the unfair labor practices alleged in the complaint, therefore it is ordered that the complaint herein isl dismissed in its entirety. 'Dierks Forests, Inc, 385 F 2d 48 (C.A. 8), and cases cited, TRW-Semi-Conductors, Inc.. 385 F 2d 753 (C A 9)