O'Daniel Oldsmobile, Inc.

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Daniel Oldsmobile, Inc. and Local Lodge 31, International Association of Machinists & Aerospace Workers, AFL-CIO, Case 17-CA-3501 October 28, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 30, 1968, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices and recommended the dismissal of such allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decison 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 Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(3) and (1) when, in retaliation, it selected for lockout only those employees who had participated in a protected strike.' On April 5, Respondent sent notices to only 16 of the 25 locked out employees to report for work on April 8. None did so Thereafter, Respondent notified 20 of them to report for work and all 20 complied. In each instance Respondent omitted from the notices four employees it contended had engaged in misconduct during the preceding strike. The Trial Examiner found that on April 5 when Respondent offered work to 16 of the 24 claimants,' Respondent had at least 23 positions to which they had a rightful claim. He concluded that the locked out employees were entitled to be offered reinstatement as a group and, in accord with existing precedent, found that backpay was not 'In reaching our conclusion, we find it unnecessary to consider that portion of the Trial Examiner's Decision in which he concludes that even in the absence of discrimination , the lockout would have violated the Act However, pertinent the factors he examines and however reasoned his evaluation of them, we think it inappropriate to resolve this issue in a case which can be decided on common and fully accepted principles tolled as to the 16 to whom offers of reinstatement were made.3 We agree with the Trial Examiner that where a discriminatory lockout of a large group of employees is involved, the same principles are generally apposite as are applicable to the reinstatement and tolling of backpay of strikers. However, since the issuance of the Trial Examiner's Decision, the Board has reconsidered the principles governing the situation where not all strikers are offered reinstatement.' In accordance therewith, we find that the backpay of any of the 16 employees who received and refused offers of reinstatement to their former or substantially equivalent positions on April 8, shall be tolled, and we hereby amend the Trial Examiner's remedy accordingly. 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 and orders that Respondent, O'Daniel Oldsmobile, Inc., Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. Substitute the following for paragraph 2(a) of the Trial Examiner's Recommended Order: "(a) Offer to Jack Bradbury, Frank Pilant, Charles Schneider, and Harold Wallace immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them and the other employees listed in Appendix B to the Trial Examiner's Decision whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Trial Examiner's Decision entitled The Remedy, as amended herein." 'One locked out employee had resigned on March 22 'In reaching this conclusion , the Trial Examiner relied on the principles set forth in Rice Lake Creamery Co , 151 NLRB 1113, and other cases which followed Robert S Abbott Publishing Co, 139 NLRB 1328, enforcement denied 331 F 2d 209 (C A 7) 'Southwestern Pipe, Inc , 179 NLRB No 52 This case holds that where striking employees make an unconditional offer to return to work and the employer, without a discriminatory motive, offers reinstatement to them as less than a group , backpay is tolled as to those strikers who receive offers of reinstatement but who refuse then to return to work TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The charge herein was served upon Respondent on March 5, 1968,' the amended complaint issued on July 3, and the case was heard on July 30 and 31, and August 1. After the hearing briefs were filed by Respondent and the General Counsel. Upon the entire record,, including my observation of the witnesses, I adopt the following findings and conclusions 'All dates refer to 1968, unless otherwise indicated 'for correction of the record and certain evidentiary rulings, see the 179 NLRB No. 55 O'DANIEL OLDSMOBILE, INC. 399 1. RESPONDENTS OPERATIONS O'Daniel Oldsmobile, Inc , herein called Respondent, is an Indiana corporation, and is engaged in the retail sale and servicing of automobiles at its establishment in Omaha, Nebraska Respondent annually purchases goods and services valued at more than $50,000 from out-of-State sources, and annually receives gross revenues in excess of $500,000. Respondent is engaged in commerce under the Act. It. THE UNION Local Lodge 31, International Association of Machinists & Aerospace Workers, AFL-CIO, hereinafter called the Union , is a labor organization under the Act. III THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: 1. Whether Respondent violated Section 8(a)(1) of the Act by interrogation , promises of benefits, and threats of reprisal? 2 Whether Respondent violated Section 8(a)(3) and (1) of the Act by (a) withdrawing certain employee privileges, (b) suspending an employee on December 26, 1967, for tardiness, (c) failing to reinstate any striking employees until April 18, and (d) discharging four of them as of April 18, because of their alleged misconduct? 3. Whether Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally reducing the wages of two "clean-up" employees?' A. Sequence of Events On August 24, 1967, the Union filed a petition for a Board election among Respondent's service, body shop, and parts department, employees, and on September 26, Respondent and the Union executed a stipulation for certification upon a Board election On October 11, Respondent filed a charge against the Union, alleging violations of Section 8(b)(1)(A) and (2) of the Act On November 9, the charge was dismissed by the Regional Director, and on November 21, Respondent appealed to the General Counsel from such dismissal . On December 1, the election was held and, the Union having won, it was orders of October 1 and 9, and the General Counsel's motion to correct transcript of August 22 After the hearing, the parties submitted,at my request, certain information regarding the hiring date of Ogle, which has been marked as TX Exhs I and 2 They are hereby received in evidence, 'An allegation of refusal to bargain with the Union in good faith was struck at the hearing , upon motion of Respondent , which motion was made after the Examiner had granted the Union 's request for leave to withdraw the charge insofar as it alleged such refusal to bargain (Such request was made after the parties had at the hearing negotiated a contract ) Certain other 8(a)(5) allegations in the amended complaint (pars 8(e)(1) and (2)) were struck at the same time for the same reason An allegation of an unlawful unilateral change in the vacation pay of cleanup employees (par 8(e)(3) of the complaint ) was also struck for reasons which appear in the record An allegation in par 10 (a) of the amended complaint that Respondent violated Sec 8(a)(3) of the Act by instituting new rules and penalties for tardiness in December 1967, was struck , since the only evidence on this point was that Respondent 's rule on tardiness had been promulgated long before the advent of the Union, and, while there admittedly was a "modification" of that rule with respect to Pilant on December 26, that matter was adequately covered by par 10 (b) of the amended complaint, which is discussed below certified by the Regional Director on December 11 On January 19, 1968, the General Counsel denied Respondent's foregoing appeal, and on January 30, the parties had their first bargaining session On February 10, Union Agent Tilley called Respondent's counsel, Rasmussen, to inquire about a date for the next meeting and March 11 was agreed upon as the earliest mutually convenient date. However, on February 28, 25° of the 34 employees in the unit, hereinafter called the "claimants," decided to walk out because of dissatisfaction with Respondent's conduct of the bargaining. When Tilley learned of this, he promptly called Rasmussen, who assented to Tilley's proposal that the date of the next meeting be moved up to March 2, but only upon condition that Tilley get the men back to work. Tilley thereupon ordered the men to return to work, but they voted to wait until the outcome of the March 2 bargaining session. Upon being apprised of this, Rasmussen agreed to meet with Tilley under those conditions. In the morning of March 2, the parties met, and later that day, upon being assured by Tilley that Respondent was bargaining in good faith, the claimants agreed to return to work on Monday, March 4, which was the next regular workday However, when they reported in the morning of March 4, they were refused admission by Respondent's vice president, Osland, who stated that Respondent was not ready for them. Thereupon, the men resumed their picketing activity. On April 5, 16 of them were instructed to report for work on April 8, but they failed to do so. However, when on April 15, Respondent instructed 20 of them to return to work on April 18, they complied. Between April 15 and 18, four other claimants were notified of their discharge for misconduct during the period of the strike and "lockout," and they have not been recalled ' B. Discussion 1. Threats and interrogation Bradbury testified that some time in November O'Daniel, Respondent's president, summoned him to a room used by Respondent as a conference room, asked him why the men wanted a union, and asserted that O'Daniel would never have a "100% union shop" and no one would tell him how to run his business. O'Daniel denied interrogating Bradbury On the basis of demeanor, I credit Bradbury and, in the context of the entire conversation, as well as the other unfair labor practices found below, such interrogation is deemed coercive. Schneider testified that late in November he was invited to lunch by Vice President Osland, who asked how Schneider felt about the Union, and promised that the employees' commissions ', would probably be increased from 46 to 50 percent, if they rejected the Union. Osland admitted the invitation to lunch and the interrogation of Schneider described above, but denied the promise ascribed to him, albeit somewhat equivocally. On the basis of demeanor, as well as the circumstantiality of Schneider's testimony, I credit him, and find that Respondent violated Section 8(a)(1) of the Act by Osland's interrogation of Schneider, and his promise to 41t was stipulated that 26 walked out on February 28 However, this number included Gewecke, an admitted supervisor, for whom no relief is sought 'The 25th claimant , Henvey, resigned on March 22. 'The employees here involved serviced and repaired automobiles , and the compensation of most of them was based in part on a percentage of the price paid by the customer for their work 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schneider of an increase in commissions, if the Union was red ected Osland admitted, also, that about the same time he took Nelson to lunch and did not dispute Nelson's testimony that on that occasion Osland deprecated the need for a union and that, when Nelson cited the failure of Respondent to give any answer to the employees with respect to certain demands made by them at a meeting with management, Osland remarked that Respondent had been prepared to grant these demands but was prevented from doing so by the advent of the Union Since the implication of this remark was that, once the Union was removed from the scene, the employees' demands would be granted, it is found that Respondent thereby violated Section 8(a)(1) of the Act' As already related, on March 4, the returning strikers were denied admission to the shop. Union Agent Vogel testified that later that morning he met with O'Daniel to ask why the employees had been barred from the shop Haith, one of the strikers, accompanied Vogel On the basis of a synthesis of the testimony of Vogel, Haith, and O'Daniel, himself, it is found that O'Daniel characterized the Union's contract proposals as "rediculous" and declared that, if the Union insisted thereon, the employees "might be walking the bricks until doomsday."8 According to Union Agent Tilley, later the same day, when he broached the matter of the return of the strikers, O'Daniel declared that his position was the same as it had been that morning - namely "no contract, no work." Haith substantially corroborated this, but O'Damel denied that he discussed the return of the strikers with Tilley On the basis of demeanor, and in view of Haith's corroboration, I credit Tilley By the foregoing remarks to Vogel and Tilley, O'Daniel was, in effect, saying that the "lockout" of the strikers instituted that morning would continue until the Union receded from certain of its demands In view of the finding below that the lockout, itself, was illegal, it follows that O'Daniel's threat to continue the lockout indefinitely violated Section 8(a)(1) of the Act. Employee Vaughn testified that on January 3, 1968, he complained to Osland that his pay for New Year's Day, a paid holiday, had been reduced below the amount established by past practice. According to Vaughn, Osland rejoined that he could not do anything about it, as the employees had voted the Union in Despite Osland's denial, I credit Vaughn and find that Respondent violated Section 8(a)(I) of the Act by Osland's foregoing remark, which, in effect, apprised Vaughn that, because the employees had chosen to be represented by the Union, Osland was not disposed to make up any deficiency in Vaughn's check ' 2 8(a)(3) violations a. Withdrawal of privileges Gewecke, an admitted supervisor, was employed by Respondent from 1962 to April 1968 in its "tower," which was an elevated area in Respondent's building, and his duties consisted of assigning jobs to the mechanics through an intercom system. The tower was also used by the mechanics as a sort of lounging area during informal work breaks, as well as a place to eat lunch. Gewecke testified that about a week after the election he was instructed by Osland, in the presence of an employee, not to permit any employees to loiter in the tower, except during their lunch period; that no such instruction had ever been issued before, and that there was no preexisting rule to that effect Bradbury testified that he was told by Gewecke of this instruction, and it is not disputed that the employees have complied therewith Osland admitted giving such an instruction on that occasion, but insisted that he had given like instructions to Gewecke before the election, whenever he observed excessive loitering in the tower On the basis of demeanor, I credit Gewecke, and find that, whether or not there was a preexisting plant rule against loitering in the tower,10 no action was taken to implement that rule until about a week after the Union won the election. As for Osland's motivation, I deem significant not only the timing in relation to the election but also the fact that at or about the same time Osland told Gewecke that, if the employees wanted a "union shop," Respondent's shop would be run like one, and instructed Gewecke to keep a record in the future of the names of any employees who were tardy or did not attend to their work " I infer from the foregoing that the Union's victory in the election prompted Osland to adopt a policy of imposing more stringent working conditions, which was reflected in his instructions against loitering in the tower In view of this, as well as the abundant, additional evidence in the record of Osland's union animus, it is found that, because of the employees' selection of the Union, he issued the foregoing instruction to Gewecke, which was designed to, and did, deter the employees from using the tower as a lounging area during work hours, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act" b Suspension of Pilant Respondent admittedly had a long-standing, published rule, providing that employees who were late twice in the same week might be given a 1-day suspension. It is clear from the record that many, if not all, of the employees were habitually late several times a week, and Pilant 'The General Counsel appears to contend that the foregoing luncheon invitations were, in themselves , unlawful blandishments There is no substantial dispute that this was the first time that either Nelson or Schneider received such an invitation from Osland , and it is inferrable that his motive was to make them receptive to his efforts to wean them away from the Union However , there can be no doubt that the not uncommon practice of unions of treating employees to refreshments is designed to make them more receptive to union preelection propaganda Yet, the Board deems such blandishments so innocuous that it has even refused to hold that they have any tendency to affect freedom of choice in an election Lloyd A Fry Roofing Co , 123 NLRB 86, and cases there cited It would seem inconsistent with such rulings to find that the instant luncheon invitations were , in themselves, coercive The quotation is from O'Daniel's version Haith' s was not substantially different 'However, as the matter was not fully litigated but was disposed of in the manner described above (see fn 3 ), 1 make no finding that there was, in fact, an intentional underpayment nor that it was discriminatorily motivated "Kavan, who was called by Respondent , testified that as far as he knew there was a longstanding rule against loitering in the tower , but that he had paid no attention to it Even if this be regarded as proving the existence of the rule, it would still tend to corroborate Gewecke's contention that no such rule was enforced until after the election This finding is based on Gewecke's testimony, which I credit, notwithstanding Osland's rather equivocal denial that he made any reference to the Union on that occasion "I make no similar finding as to his instructions to Gewecke to keep a record of tardiness, etc , as Gewecke did not comply therewith, and there is no evidence that such instruction was made known to the employees or had any deterrent effect on them nor that any employee was disciplined for tardiness , except in the case of Pilant, which is considered below, in the text O'DANIEL OLDSMOBILE, INC. admitted that he was the worst offender in that regard However, although Osland urged the employees at shop meetings to improve their attendance, there is no evidence that before the election Pilant or any other employee was disciplined for tardiness However, several days after the election, according to Pilant, he was warned by Osland of discharge, if he continued to be late, and on December 26, when he was again late, he was laid off for 3 days by Osland, who commented at the time, "If you want to know how it is going to be to have a union in the shop, I will give you an idea " When asked at the hearing whether he made the foregoing comment, Osland gave conflicting and equivocal answers 13 In view of this, as well demeanor, I credit Pilant As to his reason for imposing a 3-day layoff, despite the fact that the Respondent's rule provided only for a I-day layoff, Osland testified that he made "an adjustment" in the rule "because normally we would have fired the man" due to the "pattern" of his tardiness However, there was no evidence that Pilant's tardiness was more serious after the election than before Yet, Osland did not see fit to give Pilant any personal reprimand or warning on that account until shortly after the election, which warning was soon implemented by the suspension In view of this, as well as the fact that the duration of the suspension exceeded that provided for in Respondent's own rule, Osland's taunting reference to the Union at the time of the suspension," and the findings above as to Osland's manifestation of a disposition to impose more stringent working conditions in other areas in reprisal for the employees' selection of the Union, it is found that the suspension of Pilant was likewise such an act of reprisal, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act c The March 4 "lockout" As already noted, on February 28, 1968, 25 of the 34 employees in the bargaining unit concertedly ceased work in protest of Respondent's bargaining tactics, and, despite the Union's efforts, refused to return to work until the morning of March 4, when they were denied admission by Osland A telegram sent by the Union on that date to O'Daniel, stating that its members were seeking to return to work but were being refused employment, was ignored by Respondent, and, as already related, when the Union on March 4, orally sought an explanation of Respondent's action, O'Daniel answered only, in effect, that there would be no work as long as the Union persisted in its contract proposals, which had been the subject of discussion at the March 2 bargaining session. It is, therefore, clear that Respondent's action on March 4 constituted a lockout in support of its bargaining position. It is conceded that there was at the time no bargaining impasse It was for many years the position of the Board that an employer may not lock out his employees, even though his only purpose is to obtain concessions at the bargaining table " S However, in the American Shipbuilding case,' 6 which involved a bargaining lockout after an impasse had been reached in the negotiations, the Court held that under the particular circumstances of that case the lockout was not unlawful While the Board for a time construed this ruling as limited to impasse situations, recently, in "He at first stated , " I wouldn't make a direct statement of that, no," but then professed to be unable to recall whether he had made such a comment "Such reference is found to violate Sec 8(a)(1) of the Act 401 Darling & Co ," a divided Board held to be lawful a preimpasse lockout In so doing, the Board's majority restated as follows the test laid down by the Court in American Ship Building, supra The Court set forth this as the test of a lockout's legality That, assuming no motive to discourage union activity or to evade bargaining exists, the test is whether the lockout is inherently so prejudicial to union interests and so devoid of significant economic justification that no special evidence of intent is required. Applying this test, the Board found in the Darling case, supra, that there was no specific evidence of intent by the respondent to discourage union activity or to avoid the respondent's bargaining duty, but, on the contrary, ample evidence that the respondent locked out its employees solely in support of its bargaining position and to avoid a strike which might have occurred during the respondent's busy season The Board further pointed out that the parties had bargained extensively and in good faith and reached accord on many subjects, that the Union had served notice of its intent to strike, unless the respondent yielded on a key issue, and that the respondent had good reason to be concerned lest, as had happened on a prior occasion, the strike would be so timed as to close down its operations during its busy season Upon consideration of all these matters, the Board concluded that the lockout was not inherently prejudicial to the Union nor devoid of significant economic ,justification, and that it did not violate the Act It may be urged that the case at bar is distinguishable from the Darling case in the following respects (I) Respondent did not lock out all its employees, but only those who had struck. (2) Before the lockout there had been only 2 bargaining sessions, at which little progress had been made, as witness the fact that the parties required 14 more meetings, including a full-day's session during the course of the hearing, before they could conclude an agreement. (3) Respondent had no reason to fear that the Union would subsequently call a strike during the negotiations, which would be so timed as to cause Respondent the maximum economic loss The Union had, in fact, just induced the employees to abandon the strike in which they had engaged without the Union's sanction As to (I), above, it may be pointed out that in American Ship Building the Court was careful to note that in that case there was not only no evidence of union animus but also no obvious, disparate treatment of union adherents, such as would warrant an inference of discriminatory motivation. The Court added in this connection. The purpose and effect of the lockout was only to bring pressure upon the union to modify its demands . There is no claim that the employer locked out only union members or locked out any employee simply because he was a union member. There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the . . negotiations "E g Quaker State Oil Refining Corp 121 NLRB 344, enfd 270 F 2d 40 (C A 3) "American Ship Building Co v N L R B. 380 U S 300 "171 NLRB No 95 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here, however, unlike the situation in American Ship Building, there is not only abundant evidence of Union animus but also obvious, disparate treatment of employees, in that Respondent locked out only those employees who, by striking, had identified themselves as Union adherents, while continuing to operate with those who had not joined the strike and with new hires. According, here, unlike American Ship Building, it cannot be said that the "purpose and effect of the lockout was only to bring pressure upon the Union to modify its demands." Rather, it would seem that it was an additional purpose1e and effect of the lockout to undermine adherence to the Union by demonstrating to the employees, by the disparate treatment accorded union and nonunion employees, the advantages from the standpoint of job security of rejecting the Union or of refraining from concerted action in support of the Union. Accordingly, although it is found that, in locking out the claimants, Respondent was motivated in part by a desire to soften the Union's bargaining position, it is further found that, by deliberately limiting the impact of the lockout to those employees who had struck, Respondent in effect discriminated against them for striking, and by such discrimination violated Section 8(a)(3) and (I) of the Act. Moreover, even if the element of discrimination against strikers were absent here, it would still be necessary to consider, in view of the circumstances described in (2) and (3), above, whether there is any limit at all in the timing of a bargaining lockout. In American Ship Building, the Court stressed that it was dealing only with a lockout after impasse and refused to say how it would rule in a case where there was no impasse In Darling, the Board cited the extensive good-faith bargaining that had preceded the lockout and the employer's interest in forestalling a strike at a time most inconvenient to the employer. None of those factors was present here. Bargaining had barely begun and, far from threatening a strike, the Union had made diligent efforts to terminate the brief, unsanctioned strike that did occur. It would seem that, if a bargaining lockout is proper under such as circumstances, it would be proper under any circumstances However, the Board has not yet gone so far as to jettison the rule of the Quaker State case, supra, by removing all limitations on the timing of a bargaining lockout; and, until it does, it must be assumed that that rule still has a residue of vitality. For all these reasons, it is found that the March 4 lockout was not privileged under American Ship Building and related cases In view of the finding, above, confirmed by O'Daniel's own testimony, that Respondent's refusal to take the strikers back on March 4, constituted a bargaining lockout, it might be thought that there was little need to dwell on a further contention of Respondent that it did not take them back on March 4, solely because of operational problems. However, as this contention was litigated at some length, discussion thereof may be in order. As already noted, Osland told the strikers on March 4, that Respondent was not ready for them, and O'Daniel insisted at the hearing that the picketing between February 28 and March 4, had caused substantial loss of patronage, so that there was not in fact enough work on "That this was, at least in part, Respondent 's purpose may be inferred from the foreseeability of the impact on employees of its obviously disparate treatment of strikers and nonstrikers Radio Officers' Union v N L R B, 347 U.S 17, 44-45. hand to warrant rehiring the strikers." However, this explanation is self-defeating; for, if the picketing had, in fact, prevented resumption of full operations, it would seem that Respondent would have welcomed an end to the picketing rather than take action which could only lead to its continuance. Moreover, it is undisputed that, notwithstanding the alleged loss of business after February 28, Respondent's counsel as late as March 2 urged the Union to get the men back to work immediately. It is admitted, further, that between March 4 and April 1, Respondent continued to advertise for help and hired seven men to do the same work as the claimants had been doing, but did not offer employment to any of the latter until April 5. Accordingly, even if one did not have the proof in the record that on March 4, O'Daniel, himself, attributed the lockout to the Union's bargaining position, it would be abundantly clear that Respondent could have rehired at least some of the claimants on March 4.30 Respondent contends, further, that it was privileged to lay off, or even discharge, the strikers because the strike was not authorized by the Union, and was therefore unprotected Here, Respondent relies on the court decision in the Draper case," where the Court, reversing the Board, held to be unprotected a walkout by a minority of the employees without union authorization, when the employer's negotiator failed to keep an appointment with the negotiator for the Union. The rationale of the Court was that the action of the strikers was in derogation of the statutory right of the Union to act as the exclusive representative of the employees, inasmuch as the strikers constituted a minority of the bargaining unit and, as a minority group, they had "no right to take independent action to interfere with the course of bargaining which is being carried on by the duly authorized bargaining agent chosen by the majority." The Court added. The particular grievance which led to the strike by the minority here was the failure of the employer to go forward with the bargaining which had been arranged by the representatives of all the employees. The effort of the minority was thus to take the bargaining out of the hands of the legally chosen representative and proceed with it themselves .. certainly the discharge is justified when the only reason for the strike is the refusal to deal with a minority which is seeking to usurp the function of the agent chosen by the majority While the Board has apparently professed to accept the rule of the Draper case, it has in fact distinquished it almost to the vanishing point Thus, in Sunbeam Lighting Co, Inc, 136 NLRB 1248, the Board held to be protected a spontaneous walkout by a majority of the employees, upon learning of the employer's final wage offer in negotiations with their union In attempting to distinguish Draper and related court cases,:= the Board stated. "According to Osland, operations were also disrupted to some extent by alleged sabotage committed immediately before the walkout However, such sabotage consisted for the most part in the alleged secreting of parts from three autos that the strikers were working on before the walkout, and, if Respondent on March 4, was still having difficulty in locating these parts, it would seem that it would welcome the aid of the employees who were supposed to have secreted them "Whether the state of Respondent's backlog on March 4 warranted rehiring all the claimants on that date, or was such that the reinstatement of some would have had to be deferred to a later date , is a matter which may appropriately be resolved in compliance proceedings "NLRB v Draper Corp, 145 F 2d 199 (C A 4) "Harnischfeger Corp v N L R B, infra, Plasri-Line, Inc, v N L R B, infra O'DANIEL OLDSMOBILE, INC. 403 This is not a case where the designated bargaining agent has taken some final action which is within its sole authority and the strike action of the employees is the result of dissatisfaction with their chosen bargaining representative and is taken for the purpose, or has the effect of, bringing pressure upon their representative to take some different action. . .- After citing various circumstances, including the fact that a majority of the employees took part in the walkout, the Board there concluded In sum, . . we find that the strike of the employees was not for an improper objective, and did not have the effect of undermining the designated bargaining representative, but, rather, was for the purpose of strengthening the status of their union committee and its spokesman by impressing upon the Respondent their support of the bargaining position taken by them While the court of appeals denied enforcement'23 it did so primarily because it found, contrary to the Board, that the walkout was supported only by a minority of the employees. In R. C Can Co ,11 the facts were that, in disregard of the admonition of a union agent, a minority of the unit employees struck in protest of the employer's dilatory bargaining tactics, and rejected a plea by their union to return to work. The Board held that, since it was in support of, rather than in derogation of, the Union's bargaining efforts, the strike was protected and the respondent's refusal to rehire the strikers was unlawful. Draper and related cases were distinquished on the ground that in those cases "the employees strike action found unprotected was dissident action to achieve a stated purpose contrary to and at odds with a bargaining decision of the chosen and exclusive employee representative."" R. C Can was followed by the Board in Berger Polishing, Inc., 147 NLRB 21, 39 (fn. 64), where it held to be protected an unauthorized walkout by a majority of the employees because of the employer's failure to demonstrate a willingness to make concessions in bargaining.36 It is not clear how the situation in Berger and R C Can differed materially from that in Draper. In all three cases the strikers deemed the employer to be responsible for the ineffectiveness of the bargaining and the purpose of the strike was to exert pressure, not on the union, but on the employer, to bargain more effectively That such was, also, the case here is evident from the undisputed testimony in the record that early in the morning of February 28, the three employees who had participated in the negotiations as members of an employee bargaining committee approached Vice President Osland, and one of them (Haith) asserted that the employees were "unhappy with the company for not negotiating and unless the company would agree to try to negotiate the contract we weren't going to work that morning." When Osland protested that Respondent was negotiating in good faith, the employees pointed out that there had been "one meeting since the first of December and they never negotiated and all they did was read our proposal." According to Haith, Osland still "maintained they were negotiating and we maintained they weren't . "N L R B v Sunbeam Lighting Co. Inc, 318 F 2d 661 (C A 7) "140 NLRB 588, enfd 328 F 2d 974 (C A 5) "Among the cases so distinguished was Plasti-Line , Inc v N L R B. 278 F.2d 482 (C A 6) where the court, reversing the Board , held to be unprotected a strike by a minority of the unit employees because of dissatisfaction with a grievance adjustment reached by their union with the employer and with the status of another grievance , which was being duly processed through the contractual grievance machinery While it is true that the Court in Draper characterized the strike in that case as an improper interference with the course of the bargaining and as usurpation of the function of the Union, that was mere conclusionary language If there was such interference and usurpation in Draper, it would seem that the same was true in R C. Can and Berger Polishing. The only conclusion that can be drawn from the result in the two latter cases is that, while the Board agrees with the dictum in Draper, supra, that a strike by a minority group for purposes at variance with the objective of their bargaining representative would be unprotected, the Board, unlike the Court in Draper, does not view a strike to compel an employer to bargain more diligently or productively as at variance with the Union's objectives, even though such strike is not sanctioned by the Union, and, therefore, deems such a strike to be protected. 11 Finally, there remains the defense which was most extensively litigated at the hearing - namely, the strikers' alleged misconduct. This defense has three aspects (1) as justifying the refusal to take any of the men back on March 4, (2) as justifying the ultimate refusal to take back four of the men on April 18, even after all the others were reinstated, and (3) as disqualifying all the strikers, including those who were rehired, from receiving backpay with respect to the entire period of the lockout These will be considered in order February 28 to March 4 There will, first, be considered whether between February 28, and March 4, there was such misconduct as to justify Respondent's rejection of the strikers' offer on the latter date to return to work O'Daniel testified that during that period it was reported to him that Bradbury had followed another employee (Pepper) home from work, and Bradbury admitted that on February 28 or 29, he drove his car for about 2 miles behind Pepper's car, but (Other court cases distinguished by the Board in R C Can on the same ground as Plasti-Line were Harnischfeger Corp v N L R B , 207 F 2d 575 (C A 7), and N L R B v American Manufacturing Co of Texas, 203 F 2d 212 (C A 5) (both of which involved reversals of the Board) In American Manufacturing, the facts were analogous to Plasti-Line In Harnischfeger. the court apparently construed the minority strike as designed to bring pressure on the union in bargaining for a contract ) It may be noted , further, that in Draper, and Sunbeam Lighting, supra, as well as all the cases discussed in this footnote , the courts stressed the fact that the strikers represented a minority of the unit employees, whereas in the case at bar they constituted an overwhelming majority "Accord Hoffman Beverage Co. 163 NLRB No 134 "1t may be urged that the instant case is distinguishable from R C Can and related cases on the ground that, here , a date for resuming negotiations (March 11) had already been agreed upon by Respondent and the Union when the employees walked out, and that, to the extent that the walkout sought to compel an earlier meeting , it was inconsistent with action taken by the Union (See Sunbeam Lighting. supra. 1253, fn 12, where the Board attempted to distinguish Draper on the ground that the employees there struck to compel acceleration of a meeting date already agreed to by their union Although the reported facts in Draper do not show any such agreement on a future meeting date, it is arguable that the foregoing attempted distinction reflects the view of the Board that a strike for such a purpose would not be protected ) However, it is apparent from the testimony quoted above as to the events leading up to the walkout in the case at bar, as well as the fact that the men refused to return to work until Respondent had demonstrated (on March 2 ) that it was bargaining in good faith, that the paramount concern of the employees was more productive bargaining, and that, although the infrequency of the past bargaining was cited by the employees on February 28, to Osland (and, also, to Tilley), this was only incidental to the employees' contention that up to that point there had been no meaningful bargaining by Respondent 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his testimony implies that that was a mere coincidence, and that his destination was a bar in the vicinity of Pepper's house. Pepper, however testified that Bradbury was one of a group28 that "escorted" him all the way home on the night of the 28th, and asked him if he was going to keep a promise he had made earlier in the day (to Bradbury) that he would stay away from work during the first few days of the walkout According to Pepper, he answered, "I keep my word " Although Pilant and Nelson corroborated Bradbury's testimony that their destination on that occasion was not Pepper's home but a nearby bar, I credit Pepper, as he seemed to be a less partisan witness than the others.29 O'Daniel added that, from an investigation conducted by Respondent, he concluded that on February 28, before walking out, Bradbury had secreted certain parts of a generator on which he was working, and that Schneider had damaged a hood by stomping on it In addition, Osland testified that on February 28 he had difficulty in locating parts from cars on which Larry Zoucha and Stiverson had worked just before the walkout. As neither Stiverson nor Larry Zoucha testified, it is found that they were responsible for the deliberate misplacing of parts However, in view of the denial by Bradbury and Schneider of the misconduct ascribed to them, and, as other employees admittedly had access to their work areas, and there was no eye-witness testimony to support Respondent's accusation, I credit such denials O'Daniel also cited the mass picketing across Respondent's driveways that at least temporarily blocked cars from entering and leaving However, while O'Daniel's testimony seems to imply that such mass picketing began on February 29, 1 deem more reliable, and credit, the testimony of Kavan, Respondent's own witness, that there was no interference by the picketing with ingress or egress until several weeks after February 28. There was also considerable testimony about damage during the strike to vehicles owned by Respondent and its nonstriking employees. However, there was no evidence as to the identity of those responsible for such damage Accordingly, the only incidents here relevant are those involving the trailing of Pepper on February 28, by Bradbury, Nelson, and Pilant, and the sabotage on that date by Larry Zoucha and Stiverson. Clearly, even if warranting disciplinary action against those men, these incidents did not afford any justification for locking out the rest of the strikers on March 4 Nor does Respondent, in fact, contend that any of the claimants, including the five named above, was denied employment on March 4, because of the foregoing alleged misconduct.'° Accordingly, the contention as to these five is, in effect, not that they were locked out on March 4 because of their alleged misconduct, but that on account of such misconduct they should be denied any remedy for such violation of the Act as may have been committed by locking them out. However, as explained in more detail below, the test to be applied in dealing with such a contention is whether such misconduct was so flagrant as to render the discrimmatee unfit for further service " It is clear from the fact that they were recalled on April 18, that Respondent, itself, did not regard Larry Zoucha, Stiverson, or Nelson as unfit for rehire. Accordingly, it can hardly ask the Board to find them unfit and to toll "Other strikers in the group were Pilant , Nelson, and Henvey Hervey resigned from Respondent 's employ on March 22 "There was also some testimony by Pepper about a threat against his family , but it is not clear who uttered the threat nor when it was made "While Respondent on April refused to recall Bradbury, Pilant and their backpay on that account As for the trailing of Pepper by Bradbury and Pilant, the Board has repeatedly held that such following of nonstrikers by strikers does not render the latter unfit for further service 12 It is therefore found that none of the foregoing events warranted either the locking out of any of the claimants or denial of their right to reinstatement and backpay arising from such lockout Misconduct After March 4 a The handbills Respondent contends , additionally , that the claimants forfeited the protection of the Act, because, as the record shows , during the picketing they distributed to Respondent's customers a handbill, which alleged that the employees had been locked out , and that their union had been unable to reach any agreement with Respondent, and concluded with the following: We are asking our friends and neighbors in the Omaha area to respect our picket line and not to entrust their automobiles to unqualified scabs [Emphasis supplied Since , the handbills refer to the employees as having been "locked out," it is evident that the distribution of the handbills occurred after March 4 Accordingly, such distribution is not available as a defense to the March 4 lockout. Respondent ' s contention must therefore be considered as, in effect , only a plea that , even if it be found to have locked out the claimants illegally, the Board should hold that, because of the subsequent distribution of the handbills, referred to above, the claimants should be denied the customary remedy of reinstatement with backpay, in the case of the four employees who were not rehired on April 18, and backpay in the case of the others Respondent relies on Jefferson Standard Broadcasting Co 31 and Patterson-Sargent Co ,71 where it was held not unlawful to discharge employees for distributing to the public literature disparaging the quality of their employer' s product or services . The Board and Court decisions in Jefferson Standard stressed the fact that the employees were not on strike at the time of the distribution but were still at work and receiving wages from their employer, even while seeking to alienate his customers, and that the literature did not disclose that there was any labor dispute with the employer. In Patterson-Sargent, a divided Board extended the rule of Jefferson Standard to a conventional strike situation such as is here involved However, there is no need to analyze Schneider, the decision not to recall them was made, according to O'Damel, about a week before April 18 , and was based on an accumulation of incidents, most of which demonstrably occurred , if at all, after March 4 "National Packing Company, Inc, 147 NLRB 446, 455, 456, remanded on other grounds 352 F 2d 482 (C A 10) See also other cases cited in fns 36 and 37, below "Elmira Machine and Specialty Works, Inc, 148 NLRB 1695, Stewart Hog Ring Co, Inc, 131 NLRB 310, 334-335, Schott Metal Products Co. 128 NLRB 415, 416 Cases like Akron Engineering Co, 160 NLRB 949, cited by Respondent, where the Board found violations of Sec 8 (b)(1)(A) by a union on the basis of strike misconduct , are not controlling here, as the only issue there was merely whether the conduct of the strikers was coercive The issue here, on the other hand , is whether the conduct was so coercive as to justify denial of any remedy for Respondent's unfair labor practices "94 NLRB 1507, affd 346 U S 464 34115 NLRB 1627 O'DANIEL OLDSMOBILE, INC. 405 further the similarities and dissimilarities between the conduct of the employees in the case at bar and in the foregoing decisions; for, the issue here is not, as in those cases, whether the employer was justified in discharging employees or refusing to reinstate strikers, but, as already stated, the only question here is whether, Respondent having discriminatorily locked out its employees on March 4, the Board should withhold its customary relief because of misconduct occurring subsequent to such lockout When seeking to be excused from his obligation to reinstate or to pay backpay to a discriminatee because of misconduct which was not a factor in the discriminatory action, an employer has a heavier burden than when he is merely seeking to justify the original discrimination. In the former case, he has the burden of proving15 misconduct so flagrant as to render the employee unfit for further service,J6 or a threat to "efficiency in the plant."" Thus, the Board has held that discriminatorily discharged employees did not forfeit reinstatement by expressions of resentment occasioned by their discharge, which included threats of violence against other employees or management representatives,38 nor by picket line threats against nonstrikers,3° nor by picketing in such a manner as to interfere with plant ingress or egress40 nor even by picketing in breach of a no-strike contract." Moreover, of special significance here is the holding of the Board that an employer may not be excused from reinstating a discriminatorily discharged employee because of his disparagement of the employer's business to a customer 42 The foregoing cases are in harmony with the broader principle enunciated by the court in the Thayer case47 that, where an employer is found to have engaged in unfair labor practices, the Board must evaluate any employee misconduct in the light of such unfair labor practices, in determining whether the employee has forfeited the protection of the Act Thus, under the Thayer rule, it would be necessary to weigh the seriousness of the charge in the handbills against the gravity of Respondent's breach of the Act by locking out its employees on March 4, as well as its other unfair labor practices, found above While one cannot condone the handbills' disparagement of the quality of Respondent's repair services, there is no evidence as to what, if any, loss of patronage Respondent suffered because of such disparagement; and , it is clear, in any event, that Respondent was able to resume normal operations as soon as it terminated the lockout 45 On the other hand, the loss "Matters urged by a respondent in mitigation or negation of its backpay liability constitute an affirmative defense, as to which it has the burden of proof United States Air Conditioning Corporation , 141 NLRB 1278, 1280, and cases there cited "Horn Manufacturing Co Inc, 88 NLRB 1177, 1179, 1180, and cases there cited, Trumbull Asphalt Co of Delaware, 139 NLRB 1221, 1222 "N L R B v A P W Products Co, 316 F 2d 899 (C A 2) Cf N L R B v Kelco Corp, 178 F 2d 578 (C A 4) "Bin-Dictator Co, 143 NLRB 964, 965, Blue Jeans Corp 170 NLRB No 149, Burlington Industries , Inc, 144 NLRB 272, 282-283 "National Packing Co Inc, 147 NLRB 446, 447, remanded on other grounds 352 F 2d 482 (C A 10), Trumbull Asphalt Co of Delaware, 139 NLRB 1221, 1223 "Puerto Rico Rayon Mills Inc, 117 NLRB 1355, 1357-58, National Packing Co, Inc, supra, Trumbull Asphalt Co. supra, Standard Printing Co of Canton, 151 NLRB 963, 969 "Simmons, Inc, 145 NLRB 348 "National Furniture Manufacturing Co, Inc. 134 NLRB 834, enforcement denied on this point, 315 F 2d 280 (C A 7) "N L R B v Thayer Co , 213 F 2d 748 (C A 1), cert denied 358 U S 883 Accord Local 833, UA W (Kohler Co ) v N L R B, 300 F 2d 669 suffered by the claimants in terms of deprivation of earnings is not speculative but may be objectively determined. According, under the Thayer rule, it seems unlikely that the Board would find that the handbills disqualified their distributors from backpay or reinstatement As for the specific test which the Board has applied in cases like the instant one - namely, fitness of the discriminatee for further service-such fitness was amply demonstrated by the fact that Respondent on April 18 rehired most of the locked-out employees, notwithstanding their involvement in the handbill distribution It would be paradoxical to hold that, although Respondent had no qualms about utilizing their services, the Board was required to treat the recalled employees as unfit to perform such services, and to toll their backpay on that account. As to the four employees who were not recalled, since there is no evidence that their involvement in the handbill distribution was in any way different from that of the others, there is no reason to find that by such activity they rendered themselves any less employable than those who were recalled 46 Accordingly, the contention that reinstatement or backpay should be withheld because of the distribution of the handbills is rejected b Bradbury The following "post-lockout" misconduct by Bradbury was cited as influencing O'Daniel's decision not to recall him on April 18: (1) Threats to non-strikers, Cvrtak and Ogle (2) Slashing the tire of a new car (3) Debarring of customers. As to (1), Bradbury denied any such threats. Ogle testified that he was hired early in April, and that on the first day of his employment Bradbury handed him a handbill and stated that within 3 days Ogle and Ganow (who had been hired about a week before) and "the rest of the scabs would be sorry we worked there " Bradbury did not specifically contradict this testimony and I credit it However, the foregoing remark seems more readily construable under the circumstances, not as a threat, but rather as a prediction that the new employees would soon become dissatisfied with the working conditions in Respondent's shop. Cvitak testified that on March 15, as well as other occasions, he was threatened by various pickets, including Bradbury, and that "they" would tell him not to show up for work or that he had better watch himself. However, under cross-examination, he admitted that the foregoing threats were actually uttered by another picket, Pilant, (C A D C ), Kohler Co, 148 NLRB 1434, enfd 345 F 2d 748 (C A D C ), cert denied 382 U S 836, Elmira Machine and Specialty Works, Inc , 148 NLRB 1695, 1699, Quality Limestone Products, Inc, 153 NLRB 1009, 1013 "While there was evidence that customers turned away after talking to pickets, it was expectable that any picket line appeal would have that effect, even absent any element of disparagement of services "The record shows that even during the lockout Respondent had more work than it could handle with its reduced force without overtime, and was conducting an intensive recruiting campaign "It may be noted, in this connection that O'Daniel did not specifically cite the handbill distribution as the reason for not recalling the four employees, but relied on other offenses , some of which have already been discussed, and the balance of which will be discussed below 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the only remark by Bradbury that the witness could recall was a reference to the witness as a scab. Accordingly, it is found that there is no merit in (I), above." As for (2), above, it was established that while Bradbury was picketing in the vicinity of a new car, which was on a display platform in front of Respondent's premises, one of the tires collapsed and it was found, upon investigation, that that tire and another had been slashed According to O'Daniel' s son , Michael, who witnessed the incident, it happened just as Bradbury was passing the car, and no other picket was within 25 feet of him, but the witness admitted that, because the car was between Bradbury and himself, he could not see whether Bradbury actually slashed the tires. Bradbury denied that he had done so, and testified without contradiction, that, when a police officer, who arrived on the scene moments after the incident, 48 asked him to empty his pockets, no knife was found among his effects. Since Bradbury' s assertion of his innocense was at least partially corroborated by the negative result of the search of his person, as well as by Respondent's failure to produce the police officer who allegedly witnessed the incident," I credit such assertion , and find that Bradbury did not slash the tires.50 As to (3), above, a synthesis of the credible testimony51 shows that after March 4, the picketing typically took the form of patrolling by four or five men across the Respondent's driveways in such close formations that a car could not pass between them; that, as customers' cars approached, each picket would continue his patrol until he reached the side of the driveway, where he would stop to permit the car to pass; that, as a result, customers' cars would have to wait a few moments for the pickets to clear the driveway,52 that the pickets would sometimes speak to the drivers and appeal to them to respect the picket line, and that some of them would heed that appeal and turn away. There was no probative evidence to refute Bradbury's denial that he engaged in any debarring activity other than that described above. It is concluded that the only alleged misconduct in which Bradbury actually engaged was the foregoing picketing, which momentarily impeded plant ingress. It has already been found that Bradbury, like the other claimants, was unlawfully locked out on March 4 Thus, the issue here is whether, having been discriminatorily laid off on March 4, he may be denied reinstatement with backpay because of such subsequent picketing activity. Under the rule discussed above, the relevant test is whether his participation in the picketing was such flagrant misconduct is to render him unfit for further service Apart from the fact that most of those equally involved in such picketing were deemed by Respondent "For reasons already discussed, even if ( 1) were proved, it would not affect Bradbury's remedial rights See In 39, above "Although young O'Daniel testified that the officer claimed to have seen Bradbury slash the tire, the officer was not called as a witness, and the foregoing testimony was struck as hearsay Moreover, the failure to call the officer warrants the inference that his testimony would not aid Respondent "See preceding footnote "As to whether such minor property damage would , in any event, affect Bradbury's remedial rights, see Quality Limestone Products , 153 NLRB 1009, 1013 (breaking of stone window sill not disqualifying) "This includes the testimony of one of Respondent 's witnesses (Kavan), as well as that of two of the pickets (Bradbury and Wallace) "As young O'Daniel's testimony that the pickets would take 2 to 3 minutes to clear the driveway for a customer 's car conflicts with that of Kavan, as well as that of the pickets, I do not credit such testimony reemployable and were reinstated,53 it may be noted that there is authority for holding that momentary interference with plant ingress by vehicles, such as occurred here, does not affect reinstatement rights 5° Accordingly, it is concluded that there is no valid basis for withholding from Bradbury the usual remedy for the March 4 discrimination against him. c. Pilant In Pilant's case, O'Daniel cited the following. (1) Threatening of Cvitak at a filling station. (2) Insulting customers. (3) Debarring of customers. As to (1), Cvitak testified that during the latter part of the period of the picketing, while he was seated in his car in a filling station, Pilant approached him and asked, "How does it feel to have 26 guys hate your guts? Why don't you step out of the car and see if you can kick my ass?" The witness testified that he ignored these remarks.55 Pilant admitted that during the period of the picketing56 he was present in the filling station in question at the same time as Cvitak, but denied speaking to him. However, in view of the circumstantiality of Cvitak's testimony, I credit him. Accordingly, it is found that Pilant, in effect, challenged Cvitak to a fist fight on the above occasion. - With regard to the alleged insults to customers, O'Daniel identified Altrock and Muell as the customers involved, and imputed to one of them a complaint that Pilant had barred his entry and called him an old fool, and to the other a complaint of barring of entry and an obscene gesture by Pilant Altrock attested at the hearing that in April he complained to O'Daniel about the fact that a picket took up a stand in Respondent's driveway in the path of Altrock's car, forcing him to stop, and, when asked to move, made a slurring remark" before complying. When asked to identify the picket, Altrock pointed out Pilant, who was present in the hearing room Muell testified that an unidentified picket circled in front of his car, frustrating for a time his efforts to leave Respondent's premises. There was no testimony by either of these witnesses concerning an obscene gesture or any other evidence that Pilant had ever made such a gesture. Pilant denied that during the picketing he had ever prevented a car from passing or insulted any customer or made any obscene gesture in the presence of a customer. In view of the above, it is found that Pilant did not make the gesture ascribed to him by O'Daniel, but, as "As for Respondent's own estimate of Bradbury's fitness for rehire, it may be noted that Bradbury testified without contradiction, and it is found , that, in advising him of his discharge, Osland explained that he was forced to comply with instructions from Respondent's counsel and stated that he would like to have Bradbury back "when this is all straightened out" "National Packing Co , supra. Kohler Co, supra, Puerto Rico Rayon Mills, 117 NLRB 1355, Standard Printing Co . of Canton, 151 NLRB 963, 969, Elmira Machine and Specialty Workers, Inc, 148 NLRB 1695, 1699. "As already noted, Cvitak testified about several occasions , including one on March 15, when Pilant told the witness not to show up for work and that he had "better watch himself " O'Daniel did not specifically allude to this matter in connection with Plant's case. In any case, such a threat would not suffice to disqualify Pilant from reinstatement See fn 39, above "Pilant thought this happened a few weeks after February 28, but conceded it might have happened , as Cvitak's testimony indicated in April "Altrock could not recall the remark and testified that he was more disturbed by the picket's reluctance to move O'DANIEL OLDSMOBILE, INC. 407. Altrock appeared to be a disinterested witness, I credit the testimony as to the incident involving him, and find that Pilant on that occasion deliberately, momentarily impeded the progress of Altrock's car, and addressed an uncomplimentary remark to him. As to the other incident, since Muell failed to identify the picket involved, there is nothing in his testimony that refutes Plant's general denial of involvement in any such incident.58 Accordingly, it is found that he was not the one who obstructed Muell's egress. With regard to (3) above, it is found that Plant's conduct in connection with the day-to-day picketing was the same as that described in the case of Bradford For reasons already stated, neither the momentary blocking of ingress in that connection, nor the Altrock incident nor the challenge to Cvitak59 are deemed disqualifying 65 d Schneider As to Schneider, O'Daniel cited the following (1) Threatening of Ogle. (2) Insults and appeals to customers (3) Debarring of customers. Ogle, who was hired by Respondent early in April, testified that during the picketing Schneider accosted him as he was leaving work and demanded that he get out of his car and fight, but that another picket intervened and led Schneider away In view of the circumstantiality of Ogle's testimony, I credit him, notwithstanding Schneider's denial. However, it was evident from a physical comparison of the two that any encounter between them would have been a clear mismatch, as Ogle was considerably larger61 and younger than Schneider. Accordingly, the foregoing challenge could have been regarded as nothing more than mere bluster on Schneider's part, and would not, in any case, under Board precedents, constitute ground for withholding any remedy for the March 4 discrimination against him. As to (2), above, O'Daniel testified that Schneider called customers "fools." This testimony was admittedly based on complaints allegedly received from customers who did not identify Schneider by name, and O'Daniel explained that, in inferring that the culprit was Schneider, he relied on a physical description of the offending picket given by the customer. However, none of such customers was called to testify, and, apart from the foregoing, hearsay evidence of customers' complaints about a partially identified picket, there is nothing in the record to refute Schneider's denial that during the picketing he called any customer a fool. Accordingly, I credit such denial "Although Muell testified that he sought the aid of one of O'Daniel's sons, Tim , in removing the picket, and that Tim professed to know the picket's name , Tim was not called to testify It is inferred therefrom that he could not have identified Pilant as the picket in question "See Efco Manufacturing, Inc. 108 NLRB 245, 250, 261 (invitation to fight) "Young O'Daniel testified that after April 18, he received a complaint from a customer about a threat by one of the pickets , which implied that the customer's trucks would be damaged , if he crossed the picket line, and, according to the witness , Pilant was the only one who fitted the customer's description of the picket However, the elder O'Daniel, who made the decision not to reinstate Pilant on April 18, did not allude to this incident, and it could not have entered into such decision , in any event, since the incident was not reported until after April 18 . Moreover, under the authorities cited above, such a threat would not render Pilant unemployable "He was about a foot taller As to the debarring charge, it is found, upon the entire record, that Schneider was not in fact actually involved in any debarring activity other than that inherent in the picketing generally, as described above, which activity, as already stated, was not so flagrant as to render him unfit for further service 62 It is concluded that Schneider is entitled to reinstatement with full backpay e. Wallace As to Wallace, apart from the usual charge of debarring of customers, O'Daniel cited only an incident involving Fitch, a nonstriking employee, which he characterized as the main reason for the discharge of Wallace. Fitch testified that late in March, while he was driving a car through the picket line, Wallace pulled a sharp metal object from his belt, about 8 to 10 inches long, and gestured to Fitch to come out of the car. Wallace insisted that the only sharp object he carried with him on the picket line was a small jacknife, less than 2 inches long, but, when asked whether he had ever pointed the open blade at Fitch, he conceded that he was not sure that he had not In view of the vagueness and evasiveness of Wallace's testimony on this point, I deem Fitch a more credible witness and accept his version of the incident. But, here, again, as in the case of Ogle-Schneider incident, Wallace's gesture could not have been regarded by any reasonable man as anything other than sheer bluster. Surely, no one would expect Fitch to leave the protection of his car to face a 10-inch blade, and there was no way that Wallace could harm Fitch unless he did leave his car. In any event, it is clear that, whether Wallace's conduct be viewed as a threat or a challenge to fight, it was not disqualifying under the precedents cited above. As for the debarring charge, apart from the vague, hearsay testimony on this point by O'Daniel, there was no contradiction of Wallace's testimony that he did not, in fact, obstruct the progress of any cars other than by picketing in the manner described above. I credit such testimony. Accordingly, I find no basis for denying to Wallace the customary remedy of reinstatement with backpay The Offer of Reinstatement On April 5, there were 24 claimants who still desired reinstatement 61 On that date Respondent by letter notified 16 of the claimants to report for work on April 8. None did so report. On April 15, a notice to report on April 18 was sent to the same 16 claimants plus 4 others 6° All 20 complied with this notice. Respondent excluded from both notices the four employees, as to whom, as noted above, it adduced testimony at the hearing of picket-line misconduct. "O'Daniel also cited appeals by Schneider to customers not to patronize Respondent , which were obviously privileged , and statements by Schneider to customers that Respondent was employing incompetent scabs As the latter raises the same issue as that raised by the language of the handbill, it will not be separately considered here. "Of the 26, who had struck on February 28, one was Gewecke, an admitted supervisor, and another, Henvey, had resigned on March 22, (G C Exh 1 1) `G C Exh 6 lists the names of 20 who received such notice This list includes Gewecke who is not a claimant (see fn 4, above ), but omits one claimant, Joseph Zoucha , who, as G C. Exh I I shows, was in fact recalled on April 18 Accordingly, if one deletes Gewecke from the number of 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the 16, who received the April 5 notice, it becomes necessary to consider whether their backpay should be tolled as of April 8 All the strikers having unconditionally applied for reinstatement on March 4, Respondent was required to take back such of them as had not yet been permanently replaced, as work became available 65 Respondent stipulated that no permanent replacements for the claimants had been hired before March 4, and the record, in fact, shows that it was not until March 7, that the first new hire was made As to the availability of work, it is evident from Respondent's April 5 offer that on that date Respondent had sufficient work on hand for at least 16 of the 24 claimants In addition, by April 5 Respondent had hired seven new employees to perform unit work At the hearing, Osland asserted that Respondent was always short of help and that the new men would probably have been hired, even if there had been no lockout. All seven were in fact retained on April 18 66 It thus appears that Respondent regarded these new employees as permanent additions to its work force, over and above its normal complement, and, in recalling the 16 claimants on April 5, intended to retain the 7 new hires It follows that on April 5, Respondent had enough work for at least 23 men. However, since the seven new employees had been hired after Respondent's discriminatory action of March 4, the claimants were entitled to displace such new employees. Thus, there were on April 5 at least 23 jobs available for the 24 claimants, and they were entitled to be reinstated in those jobs. Under the circumstances, Respondent's offer on April 5 to take back 16 of the strikers, although it had jobs for 23, was not an offer which they were required to accept 67 However, Respondent contends, in effect, that the Union, on behalf of the claimants, did agree to their recall in the manner adopted by Respondent but the claimants refused to abide by that agreement. On this point, Respondent adduced evidence at the hearing that some time between March 4 and April 5 the Union agreed to Respondent's proposal that the employees be called back as work became available in their job classifications, in order of seniority within such classifications, and that, in refusing to return to work on April 8, certain of the claimants took the position that recall should be on the basis of seniority regardless of classification, specific reference being made by them to the failure to recall Sivertson, a member of the Union's bargaining committee Respondent appears to argue from this that the Board should find either that, the Union having assented thereto, the reinstatement procedure adopted was valid, even though it applied to only 16 of the claimants, or that their rejection of that procedure was in derogation of the settlement reached between Respondent and the Union regarding the order of recall and, in effect, constituted them "wildcat" strikers, at least as of April 8, so that in either event they would not be entitled to backpay beyond April 8 However, the short answer to the first branch of this argument is that Respondent did not honor its own agreement, since the failure to recall Sivertson, for one, was not only contrary to unitwide seniority but also contrary to classification seniority, as he outranked three men in his job classification (journeyman mechanic), all of claimants recalled and adds Joseph Zoucha , the total remains at 20 "See fn 67, below "See G C Exh 11, and the testimony of Ogle, whose name does not appear on that exhibit, but who, according to a posthearing stipulation by Respondent (TX Exh 1), was hired on April 3 whom were recalled on April 5. So, also, Cummings was recalled on April 5, while the senior man in his classification, Shonka, was not. Finally, the retention of seven newly hired employees in preference to an equal number of the claimants clearly violated classification, as well as unit, seniority. Thus, there was no consent by the Union to the recall procedure in fact adopted by Respondent As for the "wildcat strike" contention, this presupposes a finding that the 16 claimants would have refused reinstatement, even if, pursuant to its arrangement with the Union, Respondent had offered all 23 available jobs to the 24 claimants in order of classification seniority. However, had Respondent made such an offer, the issue would in all probability have been moot, since the one omitted claimant would most likely have been the same person, whichever type of seniority was used. Moreover, the fact that on April 18, as already noted, the claimants did accept an offer to rehire only 20 of them would seem a sufficient answer to the foregoing, speculative contention It is concluded that the April 5 offer did not toll backpay. 3. The 8(a)(5) Issue The sole 8(a)(5) issue litigated at the hearing was that raised by the allegation in the amended complaint that on May 3, 1968, Respondent unilaterally reduced the pay of its "clean-up" employees, Spratley and Vaughn 6S They had been employed by Respondent some years, their duties consisting of cleaning new and used cars, applying undercoating to cars, and wiping down new cars on display in the showroom. They were paid on a piece-work basis, subject to a weekly guarantee. Both joined the February 28 strike, and were among those recalled on April 18.69 The General Counsel's position at the hearing was that their earnings were reduced on and after April 18, by assigning to others, without consulting the Union, work formerly done by them In support of this contention, Spratley testified that, since they returned to work on April 18, he and Vaughn had been assigned only to cleaning new cars, and that the showroom wipe-downs and the undercoating work was done by others. Spratley added that, while before the strike Respondent farmed out only that part of the clean-up work on used cars that Spratley and Vaughn could not handle, all of this work was farmed out for about 6 weeks after April 18 O'Daniel denied that after April 18, there was any change in Respondent's practice with regard to assigning work to Spratley and Vaughn and, while admitting that the showroom wipe-down work had been taken away from them, he insisted that this was done in October 1967, after the men asked to be relieved of that work While initially denying that he made such a request, Spratley admitted "Rice Lake Creamery Co, 151 NLRB 1113, 1116 (fn 12 ), and cases there cited , My Store, Inc , 147 NLRB 145, 157 (While it happens that those cases involved unfair labor practice strikers, whereas, here, in the present posture of the pleadings (see fn 3, above) it is necessary to treat the instant claimants as economic strikers, the critical issue at this point is not how the instant strike began but what were the job rights of the strikers when they applied for reinstatement on March 4 Since they concededly had not been replaced on that date , their rights were the same as those of unfair labor practice strikers ) "As to the disposition of the other refusal-to -bargain allegations in the complaint , see fn 3, above "There was no evidence nor contention that the alleged reduction in pay was because of their participation in the strike O'DANIEL OLDSMOBILE, INC. that about October 1, 1967, he complained to O'Daniel, inter alia, about the inadequacy of the pay for the showroom work, and that, when O'Daniel asked him if he wanted to give it up, he answered, " if I couldn't get any more money for the job. "70 According, I credit O'Damel's testimony and find that early in October the clean-up men indicated that they did not wish to continue to do the showroom work unless the rate was increased, and that for that reason O'Daniel in October ceased to assign that work to them. There remains the question whether any other work was, in fact, unilaterally taken from the cleanup men in May 1968, as alleged. The issue, is basically one of credibility as between O'Daniel and Spratley.'' In urging that this issue be resolved in favor of Spratley, the General Counsel cites (a) the earnings of Spratley and Vaughn from May 2, 1967, to June 28, 1968, and (b) certain testimony by Union Agent Tilley as to a comment made by Respondent early in May 1968, concerning a reduction of the future earnings of the two. These items will be considered seriatim The alleged earnings decline According to Respondent's records, placed in evidence by the General Counsel, the earnings of the two men in May 1968 were sharply lower than in May 1967. However, as against this, their earnings in June 1968 compared favorably with their earnings in June 1967,1= and the average weekly earnings for the 10 weeks beginning with the payroll period ending April 23, 1968, was about $107 per week as compared with about $97 per week for the 8 payroll weeks ending February 23, 1968 In fact, if one were to find any marked change in the general level of earnings as between 1967 and 1968, one would have to date such change from January 1, 1968, rather than from April 18, or May 3. About any evidence or contention that there was any unilateral change in the workload of the clean-up men before April 18, it is proper to infer that in January-February 1968 their earnings were depressed not by any such change, but by business conditions, and there is nothing in the record to indicate when, if ever, this factor ceased to affect the earnings of the cleanup men. Thus, the foregoing earnings record at best sheds only an equivocal light on the extent of, and reason for, the alleged decline in earnings after April 18, and does not require rejection of O'Daniel's testimony that, except for the showroom work described above, he did not take any tasks away from the cleanup men The May 3 proposal The General Counsel alludes to certain testimony by Union Agent Tilley that at a bargaining session held on May 3, Respondent' s counsel, Rasmussen, told him that Respondent planned to make an "adjustment" in the pay of Spratley and Vaughn because they were "overpaid " However, under cross-examination "Although Spratley' s testimony was interrupted at this point, the General Counsel subsequently made no effort to elicit from him any amendment or qualification of the foregoing testimony, which, as it now stands, implies that Spratley did in fact tell O'Daniel that he preferred not to continue to do the work if the pay therefor was not increased Vaughn, who was present on the occasion in question , stated only at the hearing that he agreed with Spratley's version of the incident "Vaughn was asked only whether he agreed with "everything" Spratley said, and answered in the affirmative Since this question was asked in the immediate context of questions about the conversation in October between Spratley and O'Daniel, it is not clear whether Vaughn' s answer applied only to Spratley's testimony concerning that incident In any event, assuming that it applied to all of Spratley's testimony, my credibility resolution would be the same "Comparison is here intended between the four payroll weeks ending July 1, 1967, and June 28, 1968 409 Tilley admitted that on that occasion Rasmussen was referring only to a contract proposal, and that such proposal contemplated substituting a $2 hourly wage for the existing incentive plan. While it is found that such a proposal was made and that the reason cited was Respondent's feeling that the earnings of the cleanup men were excessive, it is clear that such proposal was never put into effect," and the foregoing testimony is apparently cited only to show that Respondent was disposed to reduce the earnings of Spratley and Vaughn because deemed by it to be excessive, and as, to that extent, tending to support the General Counsel's position that the cleanup men's workload (and earnings) were in fact reduced on and after April 18. However, the foregoing testimony would incline me rather to credit O'Daniel's denial of any such reduction, for, if as Spratley testified, his earnings had already been curtailed by the changes in assignment made on April 18, it is not clear why Respondent would still feel on May 3, that the two men were overpaid and that it was necessary to take further action to limit their earnings To conclude on this point, as I was more favorably impressed by O'Daniel's demeanor than by that of Spratley and Vaughn, and, as the General Counsel has adduced no cogent reason for rejecting his testimony, I credit it, and find that there was no unlawful, unilateral reduction in the workload of Spratley and Vaughn, and will recommend dismissal of that allegation IV. THE REMEDY It having been found that Respondent violated Section 8(a)(1) and (3) of the Act, it will be recommended that it be required to cease and desist therefrom and take appropriate, affirmative action Such action shall include offers of reinstatement to Bradbury, Schneider, Wallace, and Pilant, and reimbursing them, as well as all the other claimants, for any loss of earnings suffered since March 4, 74 by reason of the discrimination against them. Backpay shall be computed in accordance with the formula stated in F. W Woolworth Company, 90 NLRB 289, interest shall be added to packpay at the rate of 6 percent per annum. (Isis Plumbing & Heating Co, 138 NLRB 716.)75 In view of the nature of the violations found herein, particularly the discriminatory layoffs and discharges, a potential threat of future violations exists, which warrants a broad cease and desist provision. CONCLUSIONS OF LAW 1. By coercively interrogating employees about their union sentiments, threatening reprisals and promising benefits, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 2 By locking the claimants out on March 4, 1968, because of their concerted activities on behalf of the "That the clean-up men were never put on a straight hourly wage is clear not only from the General Counsel's own disclaimer at the hearing of any contention other than that certain work was taken away from the two men after April 18 (tr. p 391), but also from the wide fluctuation in their weekly earnings after April 18, as shown by G C Exh 11. "In the case of Pilant, backpay shall also include loss of earnings during the 3 days of his suspension in December 1967 "Backpay for Henvey shall not extend , in any event , beyond March 22, when he resigned from Respondent's employ 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union , by refusing to reinstate Bradbury , Pilant, Wallace, and Schneider, because of such concerted activities, and, by suspending Pilant from work for 3 days, and withdrawing privileges from employees , in reprisal for their selection of the Union as their bargaining agent, Respondent has violated Section 8 (a)(3) and ( 1) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is recommended that Respondent , O'Daniel Oldsmobile, Inc., Omaha, Nebraska , its officers, agents, successors , and assigns, shall be required to 1. Cease and desist from: (a) Discouraging membership in, and concerted activities on behalf of, Local Lodge 31, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization, by discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees that it will lock them out or visit other reprisals upon them because of their concerted or union activities. (c) Coercively interrogating employees about their union sentiments. (d) Promising benefits to induce employees to refrain from union activity. (e) Withdrawing privileges from employees because of their union activities (f) In any other manner, interfering with, restraining, or coercing, its employees in the exercise of their right to self-organization , to form, join , or assist the above-named Union, 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 2. Take the following affirmative action , which is deemed necessary to effectuate the policies of the Act. (a) Make whole the employees listed in Appendix B, attached hereto, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent ' s discrimination against them , and offer to Jack Bradbury , Frank Pilant , Charles Schneider, and Harold Wallace reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges. (b) Notify the four last 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 Selective Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request , make available to the Board or its agents , for examination or copying, all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its establishment in Omaha, Nebraska, copies of the attached notice marked "Appendix A "76 Copies of said notice, on forms to be provided by the Regional Director for Region 17, shall , after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and 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 such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith." IT IS FURTHER ORDERED that all allegations of the complaint relating to violations other than those found above be, and they hereby are, dismissed. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words, "a Decree of the United States Court of 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 the Respondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 discourage membership in, or concerted activities on behalf of, Local Lodge 31, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization, by discriminating against employees with regard to their hire, tenure, or any other condition of employment WE WILL NOT withdraw privileges from our employees because of their union activities. WE WILL NOT threaten our employees with reprisals for concerted or union activities, coercively interrogate our employees about their union activities or sentiments, or promise them benefits if they refrain from union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join or assist Local Lodge 31, International Association of Machinists & Aerospace Workers, AFL-CIO, 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. WE WILL Offer Jack Bradbury, Frank Pilant, Charles Schneider, and Harold Wallace immediate and full reinstatement to their former or substantially equivalent positions, and make them and the other employees listed in the attached Appendix "B" whole for any loss of pay suffered by reason of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining members of Local Lodge 31, International Association of Machinists & O'DANIEL OLDSMOBILE, INC. Aerospace Workers, AFL-CIO, or any other labor organization O'DANIEL OLDSMOBILE, INC. (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, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5282 APPENDIX B Alvin J. Penry Robert Bystrom Fred Farris Virgil Mostek Clarence Vaughn Dean Langemeier Harold Henvey Wallace Cummings Paul Shonka Nicholas Nelson Walter Spratley Larry Zoucha 411 George Jenkins Joseph Zoucha William Gouchenour Leslie Sivertson Albert Haith Mark Dawson Bernard Hoffman Larry Vicker (Ucker?) Kenneth Pearce Jack Bradbury Harold Wallace Frank Pilant Charles Schneider