Hydro-Dredge Accessory Co.

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hydro-Dredge Accessory Co. and District No. 9, In- ternational Association of Machinists and Aero- space Workers, AFL-CIO. Case 14-CA-7693 November 27, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 30,1974, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding.' Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to' a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and con- clusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein. The Administrative Law Judge found that a series of acts by the Respondent constituted unfair labor prac- tices under Section 8(a)(1), (2), and (3) of the Act. Those acts were the November 193 grant of raises to two employees who had participated in that day's'walk- out, the November 19 and 20 discharge of six em- ployees' who had participated in the walkout, the November 27 interrogation of two of the most pro- union employees about their attempts to bring in the Union, the November 27 offer to help employees form an independent employees' association, and the November 27 threat to move the roll-building opera- tion out of town if the Union came in, all of which acts were found independently to violate Section 8(a)(); the November 28 discharge of all employees, I Hydro-Dredge Employee Association appeared at the hearing as a Party in Interest 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings 3 All dates mentioned herein refer to 1973 unless specified otherwise 4 In his "Conclusions of Law," the Administrative Law Judge also desig- nated the November 19 discharge of John Becker as an unfair labor practice We assume that this designation represented an inadvertent error, and we hereby correct that error, in light of the Administrative Law Judge's earlier finding, in sec l,a,( 1) of his "Analysis," that Becker's discharge "was the result of misconduct on his part unrelated to the walkout " That finding was not excepted to In his "Conclusions of Law," the Administrative Law Judge omitted to designate the November 20 discharge of Ray Ripplinger as an unfair labor practice We assume that this omission represented an inadvertent error, and we hereby correct that error, in light of the Administrative Law Judge's earlier finding, in sec l,a,(1) of his "Analysis," that Ripplinger was "unlaw- fully discharged on the 20th " which was found to violate Section 8(a)(3); and the November 29 or 30 drafting of a contract with the employees' association, the November 29 or 30 desig- nation of employee signatories for a contract in final form with the association, and the November 29 or 30 signing of such a contract, all of which were found to violate Section 8(a)(2) of the Act. Given this series of extensive and serious unfair prac- tices, the Administrative Law Judge concluded that the Respondent's failure to grant the Union's November 27 request for recognition constituted an unlawful refusal to bargain under Section 8(a)(5), and, on the basis of his finding that a fair election could not be held, recom- mended issuance of a Gissel-type bargaining order. The Administrative Law Judge further concluded that, since the Respondent had a duty to bargain with the Union on and after November 27, its subsequent recog- nition of the employees' association-as well as its uni- lateral decisions to stop hiring part-time employees, to impose a formal disciplinary system on its employees, and to stop paying money toward the purchase of its employees' safety shoes-constituted additional viola- tions of Section 8(a)(5). We agree that Respondent's conduct, outlined above, constituted unfair labor practices under Section 8(a)(1), (2), and (3) of the Acts We also agree that issuance of a bargaining order is warranted to remedy those unfair labor practices, which we find to be egre- gious in nature, including as they did, inter alia, coer- cive interrogation, a threat to remove work from the plant, illegal raises, unlawful assistance to an employee committee,' and the discriminatory dismissal of the whole work force. However, in keeping with our ra- tionale in Steel-Fab, Inc., 212 NLRB 363 (1974), we deem it unnecessary to base our bargaining order on any violation of Section 8(a)(5).' The real purpose of our bargaining order is to remedy 8(a)(1), (2), and (3) violations so serious that the invocation of other avail- able remedies will nevertheless not permit a fair elec- tion to be held, thus requiring us to enter a bargain- ing order as the only available means of implement- ing employee free choice and effectuating the pur- poses of the Act. We are of the view that the animus of the Respondent was so forcefully conveyed to the employees by its acts and conduct here that only a 3 The November 19 statement to each employee , that if he was unhappy with the situation he could quit, was not alleged in the complaint as an unfair labor practice The Administrative Law Judge's finding that the November 29 or 30 conduct concerning the employees' association contract did not amount to 8(a)(2) domination was not excepted to 6 Our adoption of the recommended Order insofar as it requires that Respondent cease giving effect to the contract with the Association is not to be construed as requiring that Respondent rescind any benefits granted to the employees pursuant thereto 7 Member Fanning, in accordance with his dissent in Steel-Fab, supra, would affirm the findings, conclusions, and recommended Order of the Administrative Law Judge with respect to the 8 (a)(5) violations. He joins his colleagues in all other aspects of this case. 215 NLRB No. 5 HYDRO-DREDGE ACCESSORY CO 139 bargaining order can effectively restore the status quo which would have prevailed if the employees had not been so egregiously coerced. We therefore enter a bargaining order as a remedy, but, as in Steel-Fab, supra, find it unnecessary to premise that order upon a finding of an 8(a)(5) violation. Since, accordingly, we do not find that the Respond- ent had a duty to bargain with the Union as of Novem- ber 27, we cannot find that its subsequent recognition of the employees' association constituted a violation of Section 8(a)(5); but we can and do find that Respon- dent's recognition of the employees' association con- stituted a violation of Section 8(a)(2). Our declination to make an 8(a)(5) finding also re- quires us to decline to find that the Respondent's subse- quent unilateral decisions to stop hiring part-time em- ployees, to impose a formal disciplinary system on its employees, and to stop paying money toward the pur- chase of its employees' safety shoes constituted viola- tions of Section 8(a)(5). We would not be precluded from considering whether such acts were designed to and did improperly interfere with employee rights in violation of Section 8(a)(1), had the General Counsel so alleged. Although the hearing did elicit some testimony con- cerning the timing, impact, and motivation of the uni- lateral decisions, that testimony was elicited only in the context of 8(a)(5) and derivative 8(a)(1) allegations, and therefore could well differ from the testimony which might have been elicited in the conceptually dif- ferent context of independent 8(a)(1) allegations. Since the General Counsel chose not to proceed on this the- ory, for us now to find that the unilateral decisions constituted independent 8(a)(1) violations would be to condemn, as unlawful, conduct which the Respondent at the hearing was led to believe only violated the Act because it was in derogation of the Union's alleged bargaining rights as the alleged exclusive collective- bargaining representative of the employees. This we decline to do on the ground that it would constitute a denial of due process to the Respondent. A remand of these 8(a)(1) issues might normally, therefore, be ap- propriate, but in view of the full and complete remedy we are ordering herein, including a bargaining order, we have concluded that such a remand would be un- necessary and improvident in this proceeding.' The final issue before us is Respondent's contention that its November 28 invitation to the discharged em- 8 We do not mean to suggest, however, that the Respondent's claimed policy of not hiring part-time employees should be deemed any defense to its duty to reinstate part-time employees Dennis Nagel and Michael Yarber Inasmuch as part-time employees Michael Neff and Michael Sanders, who did not participate in the November 19 walkout, were reemployed pursuant to their request, at dates subsequent to Respondent's alleged change in policy, Respondent cannot be heard to assert such a policy as a defense to the reinstatement of employees Nagel and Yarber, who did participate in the said walkout ployees to reapply for work tolled its backpay liability to those employees who failed to reapply. Respondent argues that, notwithstanding the Board's consistently applied principle that a reinstatement offer must be both unconditional9 and an offer of full reinstatement, 10 backpay should be tolled here be- cause the employees did not avail themselves of work which might have been available had they seen fit to respond to the invitation to reapply for work, despite the failure of the "invitation" to comply with the Board's standards for valid reinstatement offers. We reject this contention. Respondent had wrongfully terminated its em- ployees. Its legal duty, in order to remedy this wrong, was to reinstate them to their former positions. For us to hold that some lesser invitation gave rise to a duty on the part of the employees to respond favorably to it would jeopardize the effectiveness of our remedies and invite deliberate violation of the law. Employers are not free to discharge employees for union activity and then "invite" them to come back, hat in hand, and seek favorable consideration as possible employees if the employer chooses to reemploy them. Even though some employees may respond to such an invitation and be hired, as some did and were here, no employee has any legal obligation to respond to such an invitation, and none should be required thus to subject themselves to the employer's discretionary judgment as to their continued fitness for continued employment. All dis- criminatees have an absolute legal right to restoration to their former status and pay" -a right which we will not permit to be diluted by the imposition of condi- tions such as filing an application for employment or submitting to other screening processes designed to ap- ply to new job applicants. For us to toll backpay when such an impliedly conditional offer or invitation is made would be to permit offending law violators to exculpate themselves from financial liability by impos- ing unjustified conditions upon the victims of unlawful discrimination-a policy which clearly would not ef- fectuate the policies which we are called upon to ad- minister. We therefore adopt that part of the Administrative Law Judge's recommended Order awarding backpay, in appropriate amounts to be determined in the compli- 9 Controlled Alloy, Inc and Harlin Precision Sheet Metal Fabrication Co, Inc., 208 NLRB 882 (1974). 10 Rushton & Mercier Woodworking Co, Inc, and Rand & Co, Inc, 203 NLRB 123 (1973) 11 It was to avoid the risk of consenting to return to inferior jobs that the employees who failed to respond to the November 28 invitation made their decision, on the advice of the Union' s business representative, not to re- spond Of the seven full-time employees who failed to respond to the November 28 invitation, six returned to the plant immediately after learning from Anthony Kreher on January 22, 1974, that they could get complete reinstatement 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance stage of this proceeding, to employees discharged by the Respondent on November 28. AMENDED CONCLUSIONS OF LAW Based on our above findings, we adopt the Adminis- trative Law Judge's Conclusions of Law as our own, with the following exceptions: 1. In paragraph 4, delete "John Becker" and substi- tute in lieu thereof "Ray Ripplinger." 2. Delete paragraph 7 in its entirety, and renumber paragraphs 8 and 9 accordingly. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Hydro-Dredge Accessory Co., Smithton, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraphs 1(h) and (i) of the Administra- tive Law Judge's recommended Order, and redesignate paragraph 1(j) accordingly. 2. Substitute the following for paragraph 2(c) of the Administrative Law "Judge's recommended Order: "(c) Upon request, bargain collectively and in good faith with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO (here- inafter called the Union), as the exclusive collective- bargaining representative of the employees in a unit of all full-time and regular part-time production and maintenance employees and truck drivers at the Re- spondent's Smithton, Illinois, plant, excluding office clerical employees, professional employees, guards, foremen, and supervisors as defined in the Act, respect- ing rates of pay, wages, hours, or other terms and con- ditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. 3. Substitute the attached notice for that of the Ad- ministrative Law Judge. MEMBER FANNING, concurring and dissenting in part: I agree with the majority that Respondent violated Section 8(a)(1), (2), and (3) of the Act by engaging in coercive interrogation, threats , illegal raises, unlawful assistance to an employee committee, and the whole- sale dismissal of its entire work force to thwart union organization. I dissent from the majority's reversal of the Adminis- trative Law Judge's finding that the Respondent fur- ther violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the majority representatives of its employees. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), cited in affir- mance of that principle in N. L. N.L.R.B. v. Savair Man ufac- turing Co., 414 U.S. 270, 280-281 (1973). I dissent from the majority's refusal to base its bargaining order on all of Respondent's unfair labor practices, including its original and subsequent violations of Section 8(a)(5) and (1) of the Act. I dissent from the majority's refusal to find that Respondent violated these sections of the Act by unilaterally instituting a formal disciplinary sys- tem, discontinuance of payments for safety shoes, and modification of its policy of employing part-timers. I dissent from the majority's conclusion that such con- duct, alleged in the complaint as conduct in violation of Section 8(a)(1) as well as Section 8(a)(5) and litigated on that basis, is not unlawful because the General Counsel did not allege that it was independently viola- tive of Section 8(a)(1). I dissent from the majority's reversal of the Administrative Law Judge's finding that Respondent's conduct with respect to the Association was also a breach of its statutory obligation to bargain exclusively with the Union selected by a majority of its employees. Although the majority's reasoning is not entirely clear, I have tried to synthesize its logic as follows: Step 1. A bargaining order is necessary to remedy Respondent's violations of Section 8(a)(1), (2), and (3). Step 2. It is unnecessary to base that order on any violation by Respondent of Section 8(a)(5). Step 3. Accordingly, Respondent had no duty to bargain with the Union on November 27, when the latter admittedly achieved majority status. Step 4. Therefore, Respondent's unlawful recognition of the Association was not in deroga- tion of its bargaining obligation to the Union. Step 5. Therefore, the majority finds itself pre- cluded by the above reasoning from finding that subsequent unilateral decisions otherwise violative of Section 8(a)(5) were, in law, violative of that section. The above rationale tracks the majority's decision in Steel-Fab, 212 NLRB 363 (1974), from which Member Jenkins and I dissented. As in that case, the majority insists against all logic that it is not "necessary" to base a bargaining order on Respondent's violation of Section 8(a)(5) or, indeed, to find that such a violation oc- curred. Having abdicated its statutory authority to find a violation of this section of the Act, the majority then solemnly asserts that it is precluded from finding or remedying subsequent unilateral conduct of the Re- spondent, which the Administrative Law Judge found to be violative of Section 8(a)(1) as well as Section HYDRO-DREDGE ACCESSORY CO. 8(a)(5). From this the majority derives the additional incongruous reasoning: Step 6. No independent violation of Section 8(a)(1) can be found with respect to unlawful con- duct occurring after November 27 because the General Counsel coupled such conduct with Re- spondent's violation of Section 8(a)(5). Step 7. It would be "unfair" to Respondent to find such unilateral conduct unlawful because the General Counsel proceeded on the wrong theory, leading Respondent to believe that the illegality of its conduct was only in relation to its obligation to bargain, which the majority refuses to find. Step 8. In these circumstahces it would be a denial of "due process" to find such conduct viola- tive of Section 8(a)(1). Step 9. Finally, although the matter might be cured by a remand, that procedure is, again, "un- necessary" and even "improvident." It would seem to me fairly obvious from the above that the only "unfairness" in this case is the refusal of the majority to recognize what the Supreme Court has clearly stated in the Gisseland Savair cases, supra, that an employer does violate Section 8(a)(5) when he refuses to recognize the majority representative of his employees and, instead, engages in serious unfair labor practices making a fair election improbable. That viola- tion clearly warrants the remedy of a bargaining order. It is no answer to say that such an order is not "neces- sary" because the Board may be issuing a prospective bargaining order to remedy violations other than Sec- tion 8(a)(5). The facts in this case illustrate the fallacy of such reasoning. Clearly, Respondent's unilateral conduct after November 27 was violative of Section 8(a)(5) and should be remedied on that ground. Even assuming the validity of the majority's Steel-Fab posi- tion, Respondent's retaliation against its employees for their union activity by discontinuing hiring part-timers, instituting a formal disciplinary system, and discon- tinuing its practice of helping to pay for employees' safety shoes was obviously violative of Section 8(a)(1). Contrary to the majority, a respondent is not excused from its legal responsibility or deprived of due process merely because the General Counsel relies on one sec- tion of the Act rather than another. The Respondent was on notice at all times with respect to these unfair labor practices. The General Counsel adduced substan- tial and unrefuted evidence with respect to the timing, the impact, and the Respondent's motivation in the above unilateral actions. Such evidence warrants a find- ing that Respondent violated Section 8(a)(1) apart from its violation of Section 8(a)(5). The majority, however, concludes that these viola- tions must be dismissed because its decision provides a 141 "full and complete remedy . . . including a bargaining order." Obviously, the majority's remedy does not re- quire the Respondent to undo the effects of its unilat- eral and discriminatory conduct. Nor does the majori- ty's bargaining order require Respondent to bargain about the imposition of such onerous conditions of employment. If the majority is taking the position that its remedy is otherwise so complete and its order to bargain so effective that the above violations of Section 8(a)(1) need not be found or remedied, I must disagree. In my opinion, the above serious violations of the Act, alleged as such by the General Counsel, warrant full and complete consideration by the Board. This is not a case where some 8(a)(l) conduct is merely cumulative of other 8(a)(1) or (3) violations to be remedied by the Board's general order. These unfair labor practices should be clearly labeled as such and the Board should provide a remedy geared specifically to such violations. Any other course, in my view, does not effectuate the policies of the Act or inhibit this and other respondents from engaging in conduct in violation of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer full reinstatement to their former jobs or, if their jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or other rights and privileges, to all our employees discharged on November 28, 1973, and not yet fully reinstated, and make all our em- ployees whole for any loss of pay suffered by rea- son of their discharge. WE WILL bargain collectively and in good faith with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO (herein called IAM), as the exclusive representa- tive of our employees in the bargaining unit de- scribed below, and, if an understanding is reached, sign a contract containing such understanding. The bargaining unit is: All full time and regular part time production and maintenance employees and truck drivers employed at Respondent's Smithton, Illinois, facility, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL withdraw and withhold all recognition from Hydro-Dredge Employees Association as collective-bargaining representative of any of our 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees until we have fully complied with the National Labor Relations Board's Order requiring us to bargain with IAM and unless and until the Association has been certified as such representa- tive by the Board. WE WILL NOT coercively question any of our em- ployees about their union activities, views, or sym- pathies. WE WILL NOT threaten any of our employees with removal of work to avoid unionization. WE WILL NOT encourage any of our employees to form a labor organization. WE WILL NOT grant wage increases to any of our employees as a reward for refraining from con- certed activity protected by the National Labor Relations Act. WE WILL NOT discharge or otherwise discriminate against any of our employees for engaging in union or other protected concerted activity. WE WILL NOT interfere with the administration of Hydro-Dredge Employee Association or any other labor organization , or contribute financial or other support to it. WE WILL NOT give effect to any contract with Hy- dro-Dredge Employee Association. WE WILL NOT in any other manner interfere with the rights of our employees to engage in organiza- tional activity or collective bargaining or to refrain from such activities, except to the extent that such rights may be lawfully affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. HYDRO-DREDGE ACCESSORY CO refusing to reinstate its employees; and refusing to bargain with the Charging Union. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS I RESPONDENTS BUSINESS The complaint alleges, the answer admits, and I find that Respondent is an Illinois corporation with a place of business at Smithton, Illinois, where it is engaged in the manufacture and sale of rubber products; that during calendar 1973, a representative period, Respondent manufactured and shipped from its Smithton plant directly to customers outside Illinois products valued in excess of $50,000; and that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. The evidence discloses that the Association is an organiza- tion or employee representation committee in which em- ployees participate and which exists for the purpose, at least in part, of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and hence is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Facts' 1. Background DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This case was tried before me on March 7 and 8, 1974, at St. Louis, Missouri. The charge was filed by District No. 9, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO (herein called the Union), on November 29, 1973, and amended December 10, 1973, and January 7, 1974,' with service effected upon Respondent by registered mail on or about the same respective dates. The primary issues are whether Respondent violated Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.), herein called the Act, by interrogating its employees about their union activity, threatening them and granting them benefits in connection therewith; dominating, assisting, or contributing to the support of a labor organiza- tion called Hydro-Dredge Employee Association (herein called the Association);' discriminatorily discharging and I All references below to November relate to 1973, refere *1 -s to January are to 1974 Respondent, whose principal office is in Chicago, has op- erated its plant in Smithton since 1959. Smithton's popula- tion numbers about 1 ,000. The first manager of the plant was one Arnold Brueggeman who occupied that position from the outset until November 14, 1973. " [D]uring the course of 1973," Respondent's President Brown testified, the Company was "receiving excessive rejections" because of the poor quality of its product due to defective workman- ship. This culminated in October in a complaint from a major customer, Youngstown Sheet and Tube, which Brown's personal inspection found justified. He and his partner, Carr, therefore decided to replace Brueggeman, 2 At the hearing, without objection, the caption of the complaint was amended to add the Association as a party in interest 3 On March 26, 1974, Respondent moved for correction of the transcript of testimony in certain respects Inasmuch as the motion is soundly based and is unopposed , it is hereby granted Other errors also appear in the transcript, only some of which warrant formal correction to disclose the true meaning of the relevant material [Errors in the transcript have been noted and corrected ] 4 Except as specifically indicated, the following recital consists either of a synthesis of basically consistent testimony or of otherwise uncontroverted testimony which I have credited HYDRO-DREDGE ACCESSORY CO. which they did on November 14 with the appointment of Richard Sexton, the assistant manager. That same afternoon a notice was posted on the bulletin board informing the employees of the change. Simultaneously posted were a notice banning smoking within the plant as well as other safety rules designed to achieve compliance with an inspection report which had been issued several weeks earlier by the State of Illinois. 2. The employees' grievances and Manager Sexton's initial response When John Becker reported for work on the 14th or 15th he observed the no-smoking signs and decided to defy the Company Instead of starting to work, and although he had given up smoking some time previously, he asked his brother for a cigarette in the presence of a group of employees and lit it, saying he "just [didn't] agree" with the rule. Foreman Gabel approached him and ordered him to put the cigarette out. Becker refused and blew smoke in Gabel's face. Manager Sexton then came over and said that this was now a plant rule and that everyone would have to live by it. Becker said he would put the cigarette out when he was finished with it, which he ultimately did. According to Becker, it was the imposition of the new rules that precipitated action on the part of the employees. As he testified, Q. So you had a number of complaints then the follow- ing Saturday that caused you to not go to work but to gather as a group and write up your grievances and so on, is that right? A. Yes, we did. Q. Were these grievances matters that had arisen over the period of your employment or were they just recent things that had just happened in the last day or two? A. There were some that had been building up, but mostly I would say within the last year or within that last year they were mostly talked about then. Q. But, were any of the things that you listed as griev- ances on Saturday morning things which had just hap- pened in the two or three days before that? A. Well, the one thing was we figured that since the company was putting all of these safety restrictions on us, that we would want the shop to be a little more safe, too, and, you know, like say the trolly wheels in that, at one time, one of them fell down, and we figured, well, if they're going to pull hard like this all the time, one of them's going to come down again sooner or later and that was one of the grievances on account of safety they brought all of these other safety things in and we wanted to bring up a couple of our grievances. Q. So you're saying to usthat as long as the company placed no restrictions on the employees requiring them to observe safety rules you were willing to tolerate the conditions around you, but that as soon as the company began to enforce some safety rules on employees, that, at that point you said to the company, we want you to take care of these things. A. Well, that was mostly what it was. 143 At the end of the night shift on Friday evening, November 16, eight or nine of the employees went to a bar where they discussed their working conditions and agreed they should organize the next morning.' The following morning the night shift punched in as usual (there were 10 of them), and talked about their grievances and how to better their condi- tions, including the possibility of a strike.6 They then in- formed their supervisor, Benedict, and the day-shift foreman, Gabel, who was also there, that they were not going to work. At first the supervisors were incredulous, but when the men assured them they were serious, Gabel said, according to John Becker, "You're all going to get fired."' Benedict asked if they wanted Sexton to come down and talk with them, and they indicated they would. Benedict thereupon telephoned Sexton who arrived promptly. By the time of his arrival the employees had found cardboard and sticks and had made up signs calling for improved wages, ventilation, heating, and safety and other working conditions. Meanwhile one of the night-shift employees, Gary Neff, telephoned Ray Ripplinger and Matthew Yarber to come down to represent the day shift, and they arrived immediately after Sexton. Sexton asked what the problem was, and John Becker handed him the list of grievances. Sexton addressed himself to each, indicating what steps had already been taken to remedy some, what was contemplated as to others, and which were not susceptible to resolution.' He promised to try to undertake appropriate correction of the items complained of within 30 days, and the men went to work at or about 9 o'clock.9 3. Shift in the Company's position and the ensuing walkout Following the above events, Sexton talked with Respon- dent's Chicago office, and on Monday, November 19, he called all the employees to his office individually, and told them that their grievances would take longer to resolve than he had thought10 and, according to his own testimony, That what had happened Saturday I didn't feel was the proper way of going about the situation, that things were being done, however, a person who was not happy with the situation had the alternative to quit anytime they felt they were unhappy." 5 The night shift works Mondays through Thursdays from 3 to I 1 p in , Fridays from 3 to 10 p in , and Saturdays from 6 30 a.m to 3 p in , the day shift works 6 30 a in to 3 p in Mondays through Fridays and does not work Saturdays 6 It is normal for the employees to sit around for about 15 minutes until the heat builds up 7 Becker added that the employees just laughed at this. 8 As to wages, he asked each employee to indicate the amount of raise desired Every employee gave the same answer, but, according to Gary Neff, it was 50 cents, while Sexton testified it was 25 cents, and Michael Neff testified he had requested 25 cents 9 The employees were paid for the full day 10 Michael Neff responded by asking why the Company had reneged on its promise of Saturday, to which Sexton admittedly replied that "labor is labor and management is management and that there are certain things that management must control and things such as wages and hours of overtime that we should have control as to what these salaries shall be for these things " II Sexton rephrased this on cross to "Any employee has the alternative if they are not happy with the situation, they may punch the clock on the wall and go home." 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD None of the day-shift employees walked out on the 19th but they did decide to walk out if they did not receive what they had been promised. Sexton asked Ripplinger whether, in the event of a walkout, he would join it, and Ripplinger replied he would be the first one out the door. Ripplinger was still finishing up his work when the night shift reported, and as John Becker passed him on his way to Sexton's office, Becker told him he would see him later because "we're walking out.,, Becker announced his leaving to Sexton when Sexton gave him the alternative. His brother Thomas followed him when he learned what John had done, as did most of the night shift without even listening to Sexton's attempt to explain the Company's position. Those who did not work that night, in addition to the Beckers, included Robert Lang, Dennis Na- gel, Michael Yarber and Jack Bayers. Gary and Michael Neff, both of whom said they would stay, were shortly thereafter called in individually and given 20-cent raises." 4. The evening of November 19 culminating in violence Between 7:30 and 8:30 that evening employee Ripplinger of the day shift came to the plant to ask Sexton why he had fired the Beckers and Robert Lang, and Sexton replied that they had not been fired but had walked out. Ripplinger proposed that Sexton meet with all the employees at the American Legion hall to discuss the entire situation, but Sexton declined because "a tavern" was not a good place to talk. However, Sexton suggested that he meet with Ripplin- ger and Becker as spokesmen for the day and night shifts, respectively, and they agreed so to meet the next morning. Ripplinger also raised the subject of a 15-cent wage increase for himself, which Sexton testified he had refused on prior occasions but which Ripplinger testified he had been pro- mised 2 months before. At Ripplinger's request Sexton tele- phoned President Brown in Chicago and turned the receiver over to Ripplinger. Ripplinger testified as follows concerning this conversation: I asked him when I would receive that 15 cent raise that I was promised, and he told me that it would be down on this next paycheck that was coming. Then he asked me about the walkout and told me that we wouldn't accomplish anything with a walkout, we don't have no union, nothing backing us. I told him we real- ized that but we were going to try to get one in. He said that I was just a kid and would never amount to anything and told me to turn in my resignation. So, I wrote on a piece of paper "I quit" and signed my name to it, and handed it to Mr. Sexton. Mr. Sexton wouldn't accept it. Then I asked Mr. Brown if he really wanted me to quit and he said, "If you don't change your ways, I do," and I said, "O.K., I'll change" and I handed the phone to Mr. Sexton, and I said, "Goodbye," and that was it. Q. Was anything else said before you left? 12 The only night-shift employees remaining were Dennis Dotson and Michael Sanders Sexton was unable to recall whether Dotson also received a raise that night A I told Mr. Sexton, I said, "Are you going to accept my resignation?" and he said, "No,' and I said, "O.K., I'll be back at work tomorrow." According to Sexton, Ripplinger wrote the "I quit" note after he had finished talking with Brown and while Sexton was talking with Brown, and after he hung up he told Ripplinger that he would not accept the resignation that night and that they should discuss the matter in the morning. Ripplinger testified also that Sexton agreed to close the plant down for the rest of the night and told Ripplinger to inform the day-shift employees that there would be no work the following day (the 20th) because the plant was closed. Sexton's testimony mentioned neither an agreement with Ripplinger about closing the plant nor his asking Ripplinger to notify the employees that the plant would be closed the next day He testified merely that he decided to close the plant that night because "there was basically nothing much getting done," that the only employees left were the Neffs, even Dotson having punched out." Sexton told the Neffs the plant was closing for the remain- der of the evening, they left, and while he was closing up, he testified, Betty Sanders and James Daab,'° who had heard of the closing, came by to learn what was happening; and Tom Yoch, who was apparently due at work then, also ap- peared. While Sexton was explaining the situation to them, Ripplinger returned to the plant, found the door locked, and said, "I want to come in and talk to my employees," so Sexton asked them if they wanted to talk to Ripplinger then or wait till morning; they said they would wait, and Sexton told Ripplinger he would not admit him and they would meet the next morning at 10 o'clock. Ripplinger's version of this was that when he left the plant earlier he reported the closing to the employees at the American Legion15 and had returned when, after trying to make a similar report to Betty Sanders at her home, he had been told she was at the plant; that when he got there he saw her, Sexton, Assistant Manager Ewers, Foreman Gabel and "Ray" " in the mill room; and that, when he sought admittance "so [he] could tell Betty," Sexton "told [him] to forget about everything we had talked about." Ripplinger thereupon reported these events to the em- ployees at the Legion who, upset by the news , went en masse to the plant in about six cars." It was about 10 p.m John Becker loudly demanded entry. Sexton became frightened and called the police. Becker, angry at his inability to get in, punched out four or five windows, cutting his hand badly enough to require hospital treatment. The men dispersed at or about 11 to 11:30 on the advice of the police that they should get some representation and change their methods. 13 It does not appear what happened to Michael Sanders 14 Erroneously spelled Dobb in the complaint, transcript, and briefs 15 About five blocks from the plant 16 The only Ray identified in the record other than Ripplinger himself was a unit employee named Ray Rodriquez Gary Neff also testified to seeing the same individuals when he arrived a little later 17 They included Dotson, Wagner, Ripplinger, Bayers, Nagel, Mike and Matt Yarber, Gary and Mike Neff, Bob and Fred Lang, and John and Tom Becker. HYDRO-DREDGE ACCESSORY CO. 145 5. Mediation efforts and the meeting of November 20 At or about 8:30 the next morning (Tuesday, November 20) only a few of the employees reported for work. About 10 employees met at the Village Hall" where the Chief of Po- lice again criticized their earlier behavior and Ripplinger re- ported about inquiries he had made of the Better Business Bureau and Legal Aid Society as to their future course of action. During the meeting one Killibrew, a Mobil Oil execu- tive living in Smithton, was brought in and advised them to contact a nearby attorney; a committee consisting of John Becker, Ripplinger (suggested at that meeting as the re- presentatives of the night and day shifts, respectively), and employee Kreher was appointed to accompany Killibrew to consult with the attorney that afternoon.19 Meanwhile, however, Killibrew went to the plant, informed Sexton that the employees wanted to return to work, and asked whether the Company would meet with the employees that night. Sexton consulted Brown and they agreed to attend. The em- ployees' families as well as town officials, including the mayor, also attended the meeting that night at the Village Hall. Killibrew presided pursuant to the employees' wishes. Sex- ton announced that John Becker had been fired,20, that Rip- plinger had turned in a written resignation, and that Nagel, Thomas Becker, Robert Lang, and Michael Yarber, who had left on the 19th, were no longer considered employed but that all others were invited back. Killibrew suggested that each shift elect a representative to present grievances to Sexton,21 adding, according to Sexton's testimony, "that we try to form some organization similar to that that the other roller plant in town had."22 Company owners Brown and Carr also addressed the meeting, noting benefits the em- ployees were already receiving and promising improvements with the erection of a new building. John Becker apologized for his conduct, and his father requested an opportunity to discuss John's situation with management after the meeting. Killibrew, summarizing management's remarks, announced that any employee could return to discuss reemployment. This was specifically agreed to by management for John Becker in their conversation with his father. 6. Reinstatement on November 21 Following the meeting Ripplinger went to the plant and requested reinstatement and his request was granted on a 18 Also referred to as the fire house or station 19 It does not appear that any such meeting was held But a number of the employees met at the fire house that afternoon and discussed both forming their own independent union and joining an outside union They also sug- gested a slate of officers in the event they organized their own union This slate, approved at a later meeting of all employees , consisted of Ripphnger as vice president, G Neff, secretary, M Neff, treasurer, Kreher and John Becker, shop stewards, and (oddly enough) Killibrew as president 20 Sexton assigned as reasons Becker's violence at the plant the previous night, his poor defiance of the no-smoking rule, and his even earlier "attack" on Elizabeth Sanders, the sole evidence of which was Becker's admission that he had pinched her arm, patted her "butt," and "kind of nudged up against her" until she told him to cease and desist 21 According to Sexton, who admitted advancing the same suggestion earlier, Killibrew was the only one to make the suggestion that evening. Gary Neff testified that Sexton mentioned it that evening too, with Kill,- brew merely summarizing Sexton 's remarks. 22 The record does not reflect what the latter was like probationary basis. He was told, in response to his question, that his wage rate would include the 15-cent raise he had sought. The next morning, John Becker and the others who had left on the 19th were all told they could return to work on probation, which they did. The- employees continued to work through November 27. 7. The signing of authorization cards and the request for recognition; Sexton's immediate reaction Meanwhile, on Saturday, November 24, 16 of the em- ployees met with Roy Hawkins, a business representative of the Union, pursuant to arrangements made in the late after- noon of November 20, and signed authorization cards. On November 26, the Union wrote to the Company requesting recognition, and the Company received the request on November 27. About 8 a.m. on the 27th, Sexton called Ripplinger into his office and asked "about this union letter he received." Rip- plinger said that more than a third of the employees had signed cards and that a petition would be filed for an election. Sexton asked why they tried to get a union in and Ripplinger replied it was their right. Sexton asked if he thought the Union would do any good and Ripplinger replied affirma- tively. Sexton said he did not see how the employees could be happy with the Union; that he had worked with unions before and did not like the way they worked. About 4:30 or 5 p.m. on the 27th Sexton called John Becker into his office and, according to Becker, the following ensued: A. As soon as I came in, Richard asked me, "Why are you doing this?" and I said to him, "What?" He said, "Why bring the union in this?" and I said, "Well, these guys, employees wanted to get organized." And then Gifford mentioned something about that in some ways unions are good, in some ways unions are bad, and I pretty well, you know, agreed with him on that account, and then Richard said, "You guys really got us in a mess" and he said if, he mentioned something about profit sharing system and informed me of about, where- abouts I had in the profit sharing thing and he said that would be all discontinued if the union came in, and I said, I understood that, and then he said if we wanted to go union we could just go back up to Chicago and get in a union and we would build rubber rolls up there and continue building hoses down at the plant in Smithton and then he asked me, "Why did you pick out the machi- nist union?", and, I said, "Well, that's the only union that would consider us." And he said "Well, you guys aren't considered qualified machinists." And I said, "Well, I know that." And he said that Brown couldn't afford to pay machinists wages and I didn't say nothing right away after that and then he asked me, "Well, what do you guys really want?" And I said, "Well, we mostly want a contract between the workers and the manage- ment." And he said "Well, what kind of agreement do you want?" And I said, I brought up the other rubber roll plant in Smithton. I brought up the thing that they had their own union with a new shop, their own shop and he said "Well, do you want something like that?" 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And I said, "Well, I would be willing to think about it." And then he said, "Well, if you guys want to get together, we got our lawyer, and we would pay for your legal advice, and you could pick out whomever you want, and we would get together and try to work this out." And I said, "Well, I would think about it." And then he said, later on he said, "Well, I'll keep in touch with Mr. Killibrew, the mayor, and try to set up a meet- ing for the following night, and we will try to get together and discuss a contract or talk it over." And he asked me how I felt about it, and I said, "Well, I would be willing to discuss it or to think about it, but I would have to talk it over with the other workers, though." Sexton denied having, "in those exact words," said, "John, why are you doing this, why are you bringing in a union, why did you pick the Machinists Union. You guys are not quali- fied machinists." But he admitted asking Becker "why did you go to the union" rather than "trying to sit down with management and discuss these problems" as "propos[ed] by the group that had met the other night." 8. The discharges on November 28 On November 28, starting shortly after the commencement of work, Sexton called each employee into his office and announced that he was fired for poor production23 but could reapply for work the next day.24 All who did so reap- ply on the 29th were granted immediate and full reinstate- ment and were paid for the previous day. These consisted of Bruehl, Dotson, Michael and Elizabeth Sanders, Orlet, Ros- cow, Ohlendorf, Yoch, Daab, Mehrmann, and Rodriquez.25 Evidently Sexton was not consulted about the decision to discharge the employees but merely carried out the order. He testified, however, that in his opinion the purpose was "to re-organize the organization , we were trying to get some organization in here to make this place run like any busi- ness." Asked to identify specific employees whom he had criticized for poor production prior to November 28, he named only Elizabeth Sanders, James Daab, and GaryOh- lendorf (the three people in the mill room, whom he had criticized "several times") and Ripplinger, adding that he "suppose[d] maybe at one time [he] had said something to just practically all of the people about their production."26 According to President Brown's direct examination, it was 23 Ripplinger's testimony that Sexton also told him at the time that he was "nothing but an instigator" was undemed by Sexton. 24 Only two of the eight employees testifying as to such discharges denied being told that they could reapply One of these was Frederick Lang who also testified that Sexton told him, "It's not that I don't like your products, it's just that you are terminated from Hydro-Dredge " I credit Sexton's denial of this since I see no reason why Lang would have been treated differently from the others in respect to the generally stated cause for discharge. Similarly, I perceive no reason why all of these individuals would not have been treated alike in being accorded the privilege to reapply, particularly in view of the extension of the privilege even to John Becker 25 The last four are erroneously named in paragraph 7B of the complaint as Yack, Dobb, Merkian , and Rocerequery , respectively 26 Among the employees testifying without contradiction to never having been criticized for their work was Kreher who had worked at the plant for 5 years and was ultimately rehired January 22, 1974, without having to file a new application and with a 25-cent raise and a further raise promised soon his decision to discharge the employees on November 28 and he explained its basis as follows: A. Up until November the 14th and the dismissal of Mr. Brueggeman, the situation as to actual problems with departments with the employees, to my knowledge, didn't exist. After this period it was just one incident after the other, a daily occurrence, one work interrup- tion after the other. We tried to remedy the situation on an individual basis. We tried to give individual attention. It didn't seem like it was working at all well. It further appeared that we had a certain actor [sic], hard core of people who had the idea that they could work at their pleasure.27 They always made sure that they punched the clock so that the evidence of their time was available and on the record. However, the amount of work they were giving us was poor, the overall situation to the requirements of management insofar as machinery, the safety items that were implemented, hats, the wearing of glasses, all of these conditions . We seemed to be unable to standardize in the plant particularly on one shift and as a result we tried repeatedly as far as I am concerned, repeatedly to cooperate to bring about a satisfactory conclusion and to get people motivated to a policy that we felt would be generally productive for the company and when we couldn't do this we decided or kicked around the idea of just firing everybody a long time ago and starting all over again in this manner, selecting these people who we knew had the potential and capability of fulfilling the work requirements that we felt they were hired for. This was the basis for the decision. On cross, he testified that Respondent had never fired any employee before at Smithton since the plant opened in 1959, but that the mass discharge on November 28 resulted from the failure of the employees to change their unsatisfactory attitude which had prevailed prior to the resumption of work on the 21st. Moreover, he testified, "I personally saw hats thrown out in the yard, hats that the company had pur- chased, destructed [sic] willfully. I observed personally peo- ple that were running grinding wheels without goggles on." Asked when he had made these observations, he replied, "I was at the plant and arrived on November 20th and I person- ally stayed through that week . It was during this period." And he replied affirmatively to the specific question as to whether he was "in the plant the entire period of November 21 to November 28." Pressed on further cross-examination, however, Brown admitted that he had not been in Smithton after the 21st. 9. The contract with the Association Either November 29 or 30, the employees who had re- turned to work met in the shop and elected Elizabeth Sanders25 as their spokesman to discuss with Brown the subject of raises that had been promised them in August and to get their terms of employment "down on a piece of paper." 27 Brown identified the "hard core" as including John and Thomas Becker, Ripplinger, and the Langs. 28 She was "lead man" in the mill room She had not been invited to attend, and had not even known about the employees ' meeting with Haw- kins on November 24 HYDRO-DREDGE ACCESSORY CO. She immediately went in to see him and asked if he would draw up a contract. He said he would not but would draw up an outline for one He thereupon drafted a document called "Hydro Dredge Employees Association Wage Contract" containing 29 items covering wages, hours, and other terms and conditions of employment to be effective for 1 year begin- ning December 1, 1973. He called Mrs. Sanders into the office at the start of the lunch hour and asked how it sounded. She said she would have to let the others look at it and he "al- lowed a ten-minute meeting" after lunch "to discuss it." They made "quite a few changes," and she brought it back to Brown who agreed to the changes. He then said that "he wanted someone else besides just me to be speaking for the employees" and asked whom she would like as co-signers. She indicated they should be good workers, knowledgeable and regular in attendance, and he suggested Dotson and Bruehl. So she called them in, asked if they would participate, and they said, "If it was all right with Mr. Brown, it was fine with them, they would be glad to." She and they thereupon signed it for the employees, and Sexton signed for Respond- ent. Sexton's suggestion later that day that all the employees also sign was accepted by Mrs. Sanders, and Sexton called in, one at a time, the nine employees then in the plant to add their signatures to the document. Thereafter, Brown asked Mrs. Sanders if the employees wanted an attorney to examine the contract so that if it was not "a good thing" Brown could be so advised. She said she knew an attorney. Brown asked if he would charge a fee, and she said he probably would but might not because she knew him. 10. Later requests for reinstatement The employees who did not reapply on November 2929 acted on the advice of Business Representative Hawkins. He advised against reapplying because it would mean agreeing to Respondent's conditions and starting out as new employees. However, on January 21, 1974, employee Kreher went to the plant to inquire as to the status of his hospitalization insur- ance and, in the course of his conversation with Sexton, the latter asked why the employees still out had never come back to work. Kreher answered that he thought they would if they did not have to fill out new applications and forfeit seniority and accrued benefits. That evening Sexton called him at home and invited him to the plant the next morning to discuss rehiring. The following morning he agreed to return with a wage increase and Sexton authorized him to invite the other employees in to discuss their reemployment. Kreher was to start work at 3 p.m. that day and meanwhile transmitted the message to several of the other employees. They evidently communicated with Hawkins who withdrew his objection to their return. When Kreher returned at 3 o'clock Sexton said there would be one change in their arrangement, to wit, he would have to file a new application. Upon Kreher's flat refusal, Sexton asked him to step outside so he could make a phone call. He then called Kreher back in'and said a new application would not be required. On January 22, immediately upon getting the information 29 They knew within the next few days that those who had reapplied were taken back 147 from Kreher, the Beckers, the Langs, Matthew Yarber, and Ripplinger repaired to the plant, and Sexton, expressing sur- prise that so many had come at once, stated he would have to fit them in and would notify them. Frederick Lang started the following day and the others were later told to report on Monday, January 28. By the time of the hearing the only employees not back at work (apart from Steve Becker who never sought to return) appeared to be four students, including Gary Neff, Dennis Nagel, Michael Yarber, and Jack Bayers.30 Michael Neff, another student, called Sexton on January 24 about going back to work, Sexton said he needed full-time help, and Neff said he would be in the next day to see Sexton. He went to the plant the next day but Sexton had gone to Chicago, so Neff returned on February 1. Sexton asked if Neff could start work every day at 3 o'clock, and Neff said he could not. Sexton said he wanted only "fulltime"31 help because if the student worked with a partner the latter would have down time until the student arrived. Neff, however, usually worked alone on a lathe and said so, but Sexton insisted that he would have to work full time.32 Sexton similarly informed Nagel and Michael Yarber when they saw him a few days before the start of the instant hearing.33 President Brown's testimony that Respondent had initially favored the practice of hiring part-time employees but began to contemplate a change when it replaced its former plant manager continued as follows: Q. And what conclusions did you reach with respect to whether or not you could continue to operate on an efficient level with the use of part-time employees? A. Well, we had too many and it became most un- workable. Q. Why? A. Because you have one coming to work at one time and another at another time, it's difficult to have an arrangement where people come to work at almost any time they feel like they can come to work. Q. All right, why when it had functioned for so many years? A. Because there is people standing around waiting, they were doing nothing while waiting for people to arrive and production schedules couldn't be met, gener- ally unworkable. Q. And what is the situation now? A. Our policy is not to have part-time employees.31 30 There is no evidence that either Gary Neff or Bayers asked to return Bayers approached Sexton the first day of the instant hearing and said he wanted to talk to Sexton but no such talk appears to have been held as of the close of the hearing 31 On Monday, Wednesday, and Friday, during the school year, Neff had started work at 3:30 32 Neff talked with Sexton again on March 6, the day before the com- mencement of the instant hearing, and evidently was then reinstated, ac- cording to Sexton's testimony on March 8 The record does not show his current hours but he testified that during this academic year he could report at 3 on Monday, Wednesday, and Friday but not until 4 30 on Tuesday and Thursday 33 Nagel, prior to his discharge, had started work at 4 o'clock. Yarber not only started at 4 but, unlike Nagel and Neff who worked till the end of the shift, left at 9. 34 Sexton also geared the new requirement for full-time workers to "the fact that the majority of lobs in this plant are a situation where a person is working with another team member " 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown conceded that the changed policy was not imple- mented until after November 2835 and that even the new policy contemplated the consideration of part-timers' ap- plications for reemployment. One part-timer, Michael Sand- ers, a high school student'and son of Elizabeth Sanders, was reinstated prior to the hearing. His hours are the same as those worked by Michael Yarber before November 28. Ac- cording to Sexton, Sanders is a sandblaster but his major duties consist of helping other employees in other occupa- tions because the sandblasting (which involves his working alone) consumes only a little of his time. B. Analysis 1. Section 8(a)(1) a. Events of November 17-20 (1) The discharges According to President Brown, Respondent had suffered a deterioration of its product as a result of poor workmanship at least since the beginning of 1973. He nevertheless testified that until the replacement of Manager Brueggeman on November 14 there were no "actual problems with ... the employees," but that such problems developed with manage- ment's subsequent insistence upon the implementation of its safety conditions. Noteworthy in this connection, however, is the fact that at no time prior to Saturday, November 17, had any employee ever been fired for any reason, Respondent's tolerance extending even to such open and gross insubordina- tion as that exhibited by John Becker in the smoking incident on the day of Sexton's accession. But a novel situation arose on November 17. For the first time the employees were acting in concert and indeed threat- ening to strike. Sexton managed to avert an immediate walk- out by offering to comply soon with such demands as he deemed reasonable. By Monday, however, after undergoing a change of heart following discussion of the matter with company headquarters in Chicago, he admittedly informed the employees in essence that Respondent did not share their sense of urgency, and added that if they were "not happy with the situation [they] had the alternative to quit" or "punch the clock on the wall and go home." Up to this point Respondent committed no wrong cogniza- ble by the Act. But the picture sharply changed the following evening at the Village Hall when Sexton announced that those employees who had accepted his alternative suggestion and left he plant on the 19th were no longer considered employed. Sexton's own testimony makes clear that the men involved were acting in unison in walking out, that the walk- out was over their terms and conditions of employment, and that, as Thomas Becker put it, there was no intention to quit but only to stay out "until something got settled." In arguing (br., p. 11) that the employees involved were not discharged but either quit or went on strike, Respondent ignores Sexton's announcement of the 20th noted above. The 35 Respondent also conceded the unilateral institution on November 28 of a formal disciplinary system as well as the discontinuance of its practice of paying up to $15 toward the purchase of safety shoes import of the announcement is demonstrated by Respon- dent's action, when later relenting, in taking them back "on probation." And, if Respondent is confining its analysis to the events of the 19th precisely, it must be observed that the complaint alleges these discharges "on or about November 19." Earlier in its brief, moreover (p. 2), as well as in its answer, Respondent admits discharging the individuals in question, contesting only the motive. Since, as noted above, the very nature of the action-discharge for a concerted ces- sation of work over terms of employment and not otherwise unprotected-establishes the effect proscribed by Section 8(a)(1), the violation is clear without regard to motive, al- though I would have no difficulty on these facts in finding a purpose to inhibit concerted action if that were necessary.36 Cf. B&P Motor Express Incorporated, 171 NLRB 1289 (1968). The employees participating in the walkout were John and Thomas Becker, Robert Lang, Dennis Nagel, Michael Yarber, and Jack Bayers.37 However, I find no violation in respect to John Becker whose discharge was the result of misconduct on his part unrelated to the walkout. While his precipitation of the walkout would doubtless have caused him to suffer the same discharge as the others his violent behavior the night of the 19th relieved Respondent of having to face up to the issue.38 Finally, on this phase of the case, I find Ripplinger also to have been unlawfully discharged on the 20th. His testimony that Brown ordered him to turn in his resignation during their argument over the walkout on the 19th was uncon- tradicted by Brown. That he was later told that Respondent was willing to forget the resignation if he "change[d his] ways" does not affect the violation because, first, the condi- tion involved an abstention from protected activity; and se- cond, as Respondent's brief (p. 11) concedes, Respondent "accept[ed] Ripplinger's resignation on the 20th. Respon- dent's contention that the discharge was ineffective because it "was withdrawn and he was back at work the next day"-albeit probationally-applies equally to the others who were all back at work the next day. The argument goes to remedy, not to the substance, of the violation. (2) The wage increases The complaint was amended at the hearing, without objec- tion, to add an 8(a)(1) allegation (par. 5G) that Respondent 36 Foreman Gabel had told them they were "all going to get fired" when a strike appeared imminent on the 17th Although this statement is neither alleged nor argued to constitute an independent violation , General Counsel properly relies on it as a factor in establishing the unlawful discharge on the 20th 37 Although Bayers was not named in the complaint, the litigation of the matter was as fully applicable to him as to the others Cf Bob Bundy, Inc, 205 NLRB 336, 337 38 1 also find no violation as to Richard Wagner whose inclusion in the group named in the complaint is nowhere explained Despite the admissions in Respondent's answer and at p 2 of its brief that Wagner was a member of the group discharged at that time, there is no evidence of the reason therefor He does not appear to have worked on the night shift and there is no evidence that he was a party to the walkout However, Respondent errs (br , p 11) in linking Nagel and Michael Yarber to Wagner as employees with respect to whose participation in the walkout the record is silent There is an abundance of testimony, including Sexton 's tying Nagel and Yarber to the walkout (ir, pp 192, 263, 280-281) HYDRO-DREDGE ACCESSORY CO 149 gave three employees wage raises on or about November 19 "in order to discourage their concerted activities." General Counsel, stressing the timing, relies on the evidence of the raises given the Neffs shortly after they had agreed to remain at work when the others walked out on the 19th. Respon- dent's brief is not addressed to this point. I find merit to the General Counsel's contention. One of the principal grievances cited on November 17 had been inadequate wages. If Respondent had deemed the em- ployees entitled to raises it might well have avoided a walkout altogether by satisfying this demand instead of indicating on the 19th that no concessions were then available By precipi- tating the walkout through its firm withholding of a wage increase, and then immediately granting it to two of the four employees remaining at work, I find Respondent rewarded said employees for refraining from the walkout.39 That this was indeed Respondent's purpose is further demonstrated, in my opinion, by the unlikelihood of a valid economic motive for increases to part-time employees whom Respondent, ac- cording to Brown's testimony, was well on the way to elimi- nating. b. Sexton's conversations on November 27 with Ripplrnger and John Becker The credible evidence establishes that immediately upon receipt of the Union's request for recognition Sexton called Ripplrnger into his office to question him about it and how he thought the Union would be helpful, and to caution him against it; and that shortly after the start of the night shift the same day Sexton called John Becker in, asked him why the employees were bringing the Union in and what they really wanted, stated they were not qualified machinists, that Re- spondent could not afford to pay machinists' wages, and that Respondent could move part of its operation to Chicago if it wished to go union, and, upon Becker's indication that the employees might be interested in having their own shop union, offered to pay their legal expenses to work some- thing out in that connection The foregoing testimony of Ripplinger and John Becker is entirely uncontradicted except insofar as Sexton denied only having, "in those exact words," said, "John, why are you doing this, why are you bringing in a union, why did you pick the Machinists Union. You guys are not qualified machi- nists," while admittedly asking Becker, "why did you go to the union." The only additional challenge to the above tes- timony is Respondent's argument (br., p. 10) that the alleged statement to Becker that Respondent could move its roll- building operation to Chicago40 is incredible because "Why would Sexton have talked about going back to Chicago when the Company never had a plant in Chicago? Why would the Company go to Chicago for the purpose of getting a union up there? Why would Respondent threaten to move only part of its plant?" However, absent a denial of the testimony, 39 I make no finding as to Dotson, now presumably hostile to the activist faction (in view of his return to work and his action as a cosigner of the Association contract), who, according to Sexton's testimony, may have received a raise too In this connection, the record is silent on Michael Sanders, the fourth night-shift employee to remain at work, who also may be presumed hostile to the activists 40 General Counsel's brief apparently inadvertently reads the threatened removal as applying to the hose-building which comes from an otherwise frank and credible witness, the only basis for discrediting it would be its inherent lack of credibility. I am unable to find it inherently incredible. Going "back up to Chicago" could well relate to the fact that the corporate office has always been located there. Going to Chicago for the purpose of getting a union there is a distor- tion of the statement Becker attributed to Sexton that the Company could go to Chicago and get a union there "if [it] wanted to go union." Such a move could well be economi- cally sound if the alternative were unionization at Smithton where the smaller labor force available offered a lesser cer- tainty of help sufficiently competent to compensate for the improved working conditions the Union might reasonably be expected to demand. As to why Respondent would threaten to move only part of its business I have no ready answer on this record. But I might suggest that factors such as the size of the particular portion of work involved, the nature of the machinery and equipment involved, the location of customers for that portion, projections of future operations, etc., may well bear on the question. Suffice it to say that the testimony does not carry its own death wound. In agreement with the General Counsel, I find these facts to constitute the following violations of Section 8(a)(1). (1) Threatening the removal of work rather than accept unionization at Smithton-Respondent's sole contention in respect to this is the alleged lack of credibility which has been treated above (2) Encouraging Becker in the formation of an "independ- ent" labor organization-the Board has recently held that an employer's bare suggestion in this area violates the Act. GAF Corporation, 195 NLRB 169, 170 (1972). While Respondent correctly argues that Becker's own testimony (the sole basis for the contention in General Counsel's brief) shows the suggestion emanating from him, it is clear that Sexton did more than dust welcome it. He affirmatively encouraged it by offering to pay the necessary legal fees to achieve it. If Re- spondent had in fact paid such fees that conduct would clearly have constituted interference in the formation of a labor organization as well as the contribution of financial support, all in violation of Section 8(a)(2). Hence the offer to pay was necessarily coercive and not merely "naive" as urged by Respondent (br., p. 10). (3) Coercively interrogating the employees-absent Re- spondent's other violative conduct, the interrogation here would not, in my opinion, violate the Act. It was confined to probably the two principal activists both of whom had acted openly in their organizing work before and after the advent of the Union. They were therefore so known to Respondent and knew they were. Nor did the interrogation seek to iden- tify any other employees or even to ascertain the Union's strength. Moreover, as Respondent argues (br., p. 9), Sexton had reason to wonder about this new development in view of all the talk only a few days earlier about the employees' selecting a committee to deal with Respondent. Nevertheless, I find Sexton overstepped the bounds because the interroga- tion was inextricably interwoven with Respondent's interest in keeping its employees away from an affiliated labor organi- zation in general and from the Union in particular. This finding rests in part on the 8(a)(1) violations I have already 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found and in part on the 8(a)(2) and (3) violations to which I now turn.41 2. Section 8(a)(3)-the November 28 discharges The General Counsel made his prima facie case by the evidence of the mass discharges occurring but a day after Respondent received the Union 's request for recognition and Respondent's futile intervening attempts to dissuade the pnn- cipal union supporters from continuing on that course, with no other precipitating cause, and the stated cause-poor production-appearing baseless and pretextual. Respondent, apparently belatedly recognizing that the "poor production" charge would not properly be leveled at every employee, urges (Br., pp . 10-11) that the discharges on November 28 were but "a tactical maneuver designed to shake the employees out of their lethargy and hopefully to change their attitude toward their jobs so that they would produce the quality of product which Respondent required." This contention must stand or fall on the testimony of Presi- dent Brown who made the decision to discharge the em- ployees. Respondent's difficulty here stems mainly from the incredibility of Brown's testimony. Assuming the generally poor quality existing prior to November 21 persisted, the 1-week period that intervened prior to the mass discharges hardly seems long enough for Brown to have reasonably expected noticeable improvement. Moreover, in view of the resumption of work following the rather serious breakdown only a week earlier, it does not seem likely that even the utter failure of improvement in that brief period would have evoked the drastic penalty of discharge of the entire work force on the 28th from an employer that admittedly had never discharged an employee before.42 In any event the asserted basis for the alleged determination of poor quality at that time simply did not exist. After first testifying that he had been in Smithton throughout the week in question and personally observed the employees' derelic- tions, Brown admitted that he had not been in Smithton at all during that period . And even his fallback position, that management in Smithton had "made, in [his opinion], every effort" to call the malefactors in and discuss their errors or misconduct, fails in light of Sexton's inability to identify any employees he had criticized other than Ripplinge?9 and the three employees in the mail room, Elizabeth Sanders, Daab, and Ohlendorf.44 Nor was the violation either negated or cured by the fact that the employees were informed at the time of their dis- charges that they could reapply the next day . As in the case of the earlier discharges , this affects remedy rather than sub- stance. Moreover, the offer was neither one of reinstatement nor even of reemployment but only to consider reemploy- ment. As Brown put it, Respondent had in mind a selective process, "selecting these people who we knew had the poten- tial and capability of fulfilling the work requirements that we 41 Contrary to the General Counsel, I find no basis whatever for the contention that Sexton's references to the employees ' lack of machinists' qualifications and to Respondent's inability to pay machinists' wages "threatened Becker with loss of future wage raises" (br., p. 5) 42 Cf K Wm Beach Mfg Co, inc., 192 NLRB 203, 204 (1971) 43 Whose testimony was undenied that on the occasion of this discharge Sexton called him "nothing but an instigator " 44 Who, despite repeated criticism of their work, were rehired the follow- ing day felt they were hired for. 1141 In these circumstances, Respon- dent's reliance on N.L.R.B. v. Thomas J. Aycock, Jr., d/b/a Vita Foods, 377 F.2d 81 (C.A. 5, 1967), is misplaced even assuming that decision to be binding on the Board, for while a discriminatee must minimize his losses by seeking interim employment Aycock does not require him to accept imposi- tion of a condition at odds with the obligation of the employer who has wronged him. That a discriminatee who has volun- tanly accepted less than reinstatement may toll the em- ployer's backpay liability if he thereafter quits "for reasons unconnected with the discrimination" (id. at 87) does not oblige the employee to accept the lesser job in the first place. The court in Aycock itself acknowledged its "approv[al] of the cases holding that a discriminatee's refusal to accept reem- ployment which is less than a reinstatement may not consti- tute willful loss" (ibid.) because such a refusal necessarily relates to the discrimination. 46 3. Section 8(a)(2) I find that Respondent violated Section 8(a)(2) by recog- nizing the Association dung the pendency of a real question concerning representation raised by the Union's request for recognition, and thereby giving it unlawful support. Midwest Piping and Supply Co., 63 NLRB 1060. Indeed, as found hereinafter, not only had the Union raised such a question but Respondent's Section 8(a)(1) and (3) conduct in response thereto, supra, had rendered a fair election impossible or at least so unlikely as to have bound Respondent to recognize the Union. And such obligation necessarily precluded Re- spondent from dealing with any other employee representa- tive or indeed with the employees directly , even at their re- quest. Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 683-684 (1944).47 I find that Respondent contributed further unlawful sup- port and interfered with the administration of the Association by its conduct in respect to the contract with the Association'41 consisting of Brown's drafting the contract, his negotiations with Mrs. Sanders concerning it, its typing by the Company, Brown's decision that Mrs. Sanders ' signa- ture should be accompanied by other Association representa- tives and his selection of those representatives, and Sexton's suggestion for the additional signatures of the individual em- ployees and his calling them to his office for that purpose. However, and despite other indications of a patronizing attitude such as Brown's adding an extra 10 minutes to the lunch period for the employees to consider the contract '41 1 do not deem the evidence sufficient to support a finding of 45 This attitude may well have excluded Brown's "hard core" on Novem- ber 29 notwithstanding the later acceptance of at least some of them. 46 That those who reapplied may have been accorded full reinstatement did not affect the rights of those who did not reapply, for even if the latter knew that the others had been taken back they were in no position to know that the original status of such individuals had been completely restored 47 Sec 8 (a)(2) was not involved in Medobecause the employer there dealt directly with the employees and an ad hoc committee 48 Calling it an "outline" does not change its substance which was the agreed specification of terms and conditions to govern the employment of Respondent's employees for a given period And, as noted supra, the docu- ment is entitled, "Hydro Dredge Employees Association Wage Contract" though it covers considerably more than wages 49 Noted also as background in this connection is Sexton's reference to Killibrew's proposal at the November 20 meeting that "we" try to form some independent labor organization HYDRO-DREDGE ACCESSORY CO 151 domination. Formation of the Association, as far as the re- cord shows, was a spontaneous effort by the employees,50 and, apart from the interference noted above, the record is barren of evidence of employer participation in its affairs. 4. Section 8(a)(5) As found above, Respondent failed to reply to the Union's demand for recognition except by immediately attempting to discourage the employees' interest in the Union, and, unsuc- cessful in this effort, discharging the employees the following day. Despite the Union's possession of valid authorization cards of a majority of the employees in the bargaining unit at the time of its demand, Respondent, under applicable Board law, did not violate Section 8(a)(5) by such conduct unless a fair election was thereby rendered impossible or unlikely. Green Briar Nursing Home, Inc., 201 NLRB 503, 503-504 (1973); R & M Electric Supply Co., 200 NLRB 603 (1972). I find that it was, and that at that point the rights of the employees would have been "better protected by a bar- gaining order" (N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614-615 (1969)), for the mass discharge "carr[ied] a message which [could] not be lost on employees in the voting group," particularly such a small unit of young and unsophisticated people. Cf. General Stencils, Inc., 195 NLRB 1109, 1112 (1972) (dissenting opinion of Chairman Miller, seemingly approved in 472 F.2d 170 (C.A. 2, 1972)). The unlikelihood of a fair election has since become even greater, in my opinion, by virtue of Respondent's recognition of and negotiation of a contract with the Association, conduct independently violative of Section 8(a)(5) as a breach of its exclusive obligation to bargain with the Union. Respondent cQncedes (br., p. 15) that if a bargaining order is appropriate under Gissel, Respondent's unilateral institu- tion of a formal disciplinary system, discontinuance of pay- ments for safety shoes, and modification of its policy of em- ploying part-timers all violated Section 8(a)(5). I accordingly find these further violations. Conclusions of Law 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Association is a labor organization within the mean- ing of Section 2(5) of the Act 4. Respondent has violated Section 8(a)(1) of the Act by discharging John Becker, Thomas Becker, Robert Lang, Dennis Nagel, Michael Yarber, and Jack Bayers on Novem- ber 19 for engaging in protected concerted activity; granting wage increases-to Gary and Michael Neff on the same date for refraining therefrom; and coercively interrogating em- ployees concerning unionization, threatening removal of work rather than accept unionization, and encouraging the formation of a labor organization on November 27. 5. Respondent has violated Section 8(a)(2) of the Act by interfering with the administration of the Association and contributing support to it; by recognizing it and negotiating and entering into a contract with it in the face of the Union's demand for recognition and majority status; and by interfer- ing with the designation of the Association's signatories. 6. Respondent has violated Section 8(a)(3) of the Act by discharging its employees on November 28 to discourage their union activities. 7. Respondent has violated Section 8 (a)(5) of the Act by refusing to bargain with the Union. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent did not violate the Act except as found above. REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist therefrom, and, in view of the number, variety, and seriousness of the violations and the danger of recurrence, to cease and desist from infringing on the Section 7 rights of its employees in any other manner. In order to effectuate the policies of the Act, my recommended Order will also require Respondent to offer full reinstatement with backpay to all employees discharged on November 28 who have not re- ceived both. In accordance with customary requirements, reinstatement shall be to each employee's former job, or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges. Each employee shall be made whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him by payment to him of a sum of money equal to that which he would have earned from the date of dis- charge to the date of a valid offer of reinstatement, less net earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). More- over, the recommended Order will require Respondent to withdraw and withhold all recognition from the Association as the collective-bargaining representative of any of Respon- dent's employees, both until it has complied with the provi- sions of the Order requiring it to bargain with the Union and unless and until the Association has been certified as such representative by the Board; and to refrain from giving effect to its contract with the Association, without, however, any abandonment of terms or conditions of employment which abandonment may work to the detriment of the employees. Finally, and more particularly for the reasons set forth in subsection B,4, supra, entitled "Section 8(a)(5)," my recom- mended Order will require that Respondent bargain collec- tively and in good faith with the Union upon the Union's request in the unit alleged in the complaint; and that it dis- continue its unilaterally established policies hereinabove found violative of the Act.51 50 General Counsel does not even rely on Sexton's admission of an earlier suggestion along this line, possibly because of the employee testimony in- dicating that the employees considered such a venture prior to Sexton's suggestion. 51 I shall not, however, recommend any specific remedy on this record in respect to any discipline that may have been administered to Ripplinger under the new disciplinary system because I understood the specific allega- tion offered near the close of the hearing in that connection to have been 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER 12 Respondent, Hydro-Dredge Accessory Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees concern- ing their union activities, views, or sympathies. (b) Threatening any of its employees with removal of work to avoid unionization. (c) Encouraging any of its employees to form a labor organ- ization. (d) Granting wage increases to any of its employees as a reward for refraining from protected concerted activity. (e) Discharging or otherwise discriminating against any of its employees for engaging in union or other protected con- certed activity. (f) Interfering with the administration of Hydro-Dredge Employees Association or any other labor organization, or contributing financial or other support to it. (g) Giving effect to any contract with Hydro-Dredge Em- ployees Association, except that it shall not abandon any substantive terms or conditions of employment embodied therein where such abandonment may operate to the detri- ment of the employees. (h) Refusing to bargain collectively and in good faith with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter called the Union), as the exclusive representative of its employees in the following appropriate unit: All fulltime and regular parttime production and maintenance employees and truckdrivers employed at Respondent's Smithton, Illinois, facility, EXCLUDING all office clerical employees, professional employees, guards and supervisors as defined in the Act. (i) Giving effect to any unilateral changes made after November 27 in respect to any terms or conditions of employ- ment. (1) In any other manner interfering with, restraining, or withdrawn Although the General Counsel phrased his withdrawal in terms of "the 8(a)(3) amendment," that was the only amendment mentioning Ripplinger by name, it was precisely the naming of Ripplinger to which Respondent had objected , and my approval of the withdrawal of the motion to amend referred generally to the "amendment of the complaint regarding Mr Ripplmger " 51 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec coercing its employees in the exercise of their rights guaran- teed by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Offer full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, to all employees found herein to have been discharged on November 28, 1973, and not yet fully reinstated, and make all its employees whole for any loss of pay suffered by reason of their discharge in the manner set forth in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due under the terms hereof. (c) Upon request, bargain collectively and in good faith with the Union as the exclusive representative of all the em- ployees in the above-described bargaining unit, and embody in a signed agreement any understanding reached. (d) Withdraw and withhold all recognition from Hydro- Dredge Employees Association as the collective- bargaining representative of any of Respondent's employees until it has complied with the provisions hereof requiring it to bargain with the Union and unless and until the Association has been certified as such representative by the Board. (e) Post at its place of business in Smithton, Illinois, copies of the attached notice marked "Appendix."53 Copies of said notice, on forms provided by the Regional Director for Re- gion 14, after being duly signed by an authorized representa- tive of Respondent, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director, in writing, within 20 days of the Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in- sofar as it alleges violations of the Act not specifically found. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 53 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "