Lone Star Gas Co.

In the Matter of LONE STAR GAS COMPANY and GAS FITTERS AUXILIARY TO LOCAL UNION 146, UNITED ASSOCIATION OF JOURNEY- MEN PLUMBERS AND STEAM FITTERS AND GAS FITTERS, ET AL. Case No. C-465.-Decided December 18, 1939 Natural Gas Utility Industry-Interference, Restraint , and Coercion: anti- union statements by supervisory employees ; surveillance of union meetings- Discrimination : charges of discriminatory discharges of 16 employees and dis- criminatory transfer of one employee on April 1, 1937, not sustained ; refusal to reinstate five employees on June 12, 1937, because of their union activity ; discharge of strikers who refuse to accept respondent 's offer to return to work during labor dispute constitutes-Unit Appropriate for Collective Bargaining: employees engaged in respondent's operating department in Fort Worth, Texas, including foremen of street gangs , but excluding individuals employed as super- intendent of distribution , general street foreman , warehouse foreman, distribu- tion shop foreman, assistant shop foreman, regulator foreman, garage foreman, meter repair shop foreman , machine shop foreman , chief clerk and clerks in the street department, warehouse clerk, chief clerk in the shop, shop clerk, draftsman, and junior draftsman-Representatives : proof of choice : union lists; majority in unit after May 1 , 1937-Collective Bargaining : charges of refusal to bargain collectively dismissed ; refusal to negotiate with respect to a new agree- ment based upon alleged violation of an existing agreement which Board found had not been violated does not constitute a refusal to-Contract : executed April 15, 1937 providing for preferential reinstatement of men discharged April 1, when jobs are available ; terminated strike begun April 12, 1937-Strike on May 27, 1937: not result of unfair labor practices ; conduct of ; negotiations to settle ; strike prolonged by refusal to reinstate five strikers because of their union activity ; although in breach of contract does not terminate employee status of strikers-Labor Dispute: defined ; strike called in breach of a collective agreement, as-Employee Status: strikers : offer of employment to, not accepted by them as terminating ; acceptance by, of work elsewhere than with employer against whom strike is directed as terminating; retention of, within confine of agreement for preferential reinstatement ; person absent because of illness as affecting-Reinstatement Ordered: discharged strikers ; strikers not discharged, upon application ; separate preferential list as to employees who have right to preference of employment, position not to be filled until strikers reinstated ; grounds for refusal of : breaches of peace in connection with strike, sustained ; person who refused to resume employment for reasons other than a labor dispute-Back Pay: strike, non-reinstatement : awarded from date of discrim- inatory discharge to date of Intermediate Report and from date of Order to offer of reinstatement ; employees who applied for reinstatement pursuant to Intermediate Report from date of such application to date of Decision ; awarded beginning 5 days after date of application for reinstatement to date of offer of reinstatement. 18 N. L. R. B., No. 62. 420 LONE STAR GAS COMPANY 421 Mr. E. P. Davis, for the Board. Mr. Roy C. Coffee and Mr. Marshall Newcomb, of Dallas, Tex. and Mr. Ogden K. Shannon and Mr. James M. Floyd, of Fort Worth, Tex. for the respondent. Mr. Homer J. O'Dell, of Houston, Tex. for the Laborers' Union. Mr. E. B. Fitzgerald, of Washington, D. C., for the Pipe Fitters' Union. Mr. Henry W. Lehmann, of counsel, to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by the Gas Fitters Auxiliary to Local 146, United Association of Journeymen Plumbers and Steam Fitters of the United States and Canada,' herein called the Pipe Fitters' Union, and upon charges and amended charges duly filed, by Local 859, International Hod Carriers, Building and Common Laborers' 2 herein called the Laborers' Union, the National Union of America, Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint, dated October 23, 1937, against Lone Star Gas Company, Fort Worth, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the parties. In respect of the unfair labor practices, the complaint alleged, in substance, (1) that the respondent on or about April 1, 1937, dis- charged 18 of its employees and demoted 1 employee for joining and assisting the Pipe Fitters' Union or the Laborers' Union, herein called the Unions when referred to together; (2) that on March 22, 1937, and thereafter, the Unions had been designated by a majority of the respondent's employees as their representative for the purposes of collective bargaining; (3) that on March 22, 1937, and thereafter, the respondent refused to, bargain with the Unions as the exclusive 1 The above designation of the International Union appears in the constitution and bylaws. On the charge, the International Union is designated as United Association of Journeymen, Plumbers and Steam Fitters and Gas Fitters United Association. 2 The designation of the International Union appears in the constitution and in the amended charge., On the original charge, the International Union is designated as the Hod Carriers , Building and Common Laborers Union. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of its employees in a unit appropriate for the purposes of collective bargaining; (4) that the result of the discharges and such refusal to bargain collectively with the Unions was a strike of the respondent's employees which began on or about April 12, 1937; (5) that on or about April 15, 1937, the respondent agreed in writing to recognize and bargain with the Unions and to restore the strikers to their former positions and all employees of the respondent then on strike agreed to return on or about April 16, to their former positions with the respondent; (6) that on or about May 1, 1937, and there- after, the respondent refused to bargain with the Unions as the exclusive representative of its employees in a unit appropriate for the purposes of collective bargaining, and discriminated against members of the Unions by paying non-striking employees a bonus, by con- tracting out work previously performed by individuals discharged on or about April 1, 1937, and by reclassifying and reducing to infe- rior positions all or a number of employees who had participated in the strike; (7) that the result of the discriminatory practices and the refusal to bargain collectively with the Unions was a second strike of the respondent's employees which began on or about May 27, 1937; (8) that during the month of June 1937, the respondent announced its refusal to reinstate 9 of its employees who were out on strike; (9) that on or about July 3, 1937, the respondent discriminatorily dis- charged 56 of its striking employees; (10) and that on or about February 15, 1937, and thereafter, the respondent urged its employees to refrain from becoming or remaining members of the Unions and kept under surveillance members of such Unions. The respondent filed an answer, dated October 30, 1937, denying that it was engaged in interstate commerce within the meaning of the Act and that it had engaged in the alleged unfair labor practices. The answer stated affirmatively that on or about April 1, 1937, the respondent terminated the services of certain employees named in the complaint because their employment was no longer required for the respondent's business; that the respondent has not reinstated the striking individuals alleged in the complaint to have been discharged during June 1937 because of certain acts of misconduct and violence in which the respondent alleged they had engaged; and that the Unions had breached the agreement executed on or about April 15, 1937. At the same time as it filed its answer, the respondent also filed "Exceptions to the Complaint" alleging that the complaint was defective in certain respects and a "Plea to the Jurisdiction" of the Board alleging that the respondent's distribution plant at Fort Worth, Texas, is not engaged in interstate commerce. Pursuant to the notice, a hearing was held at Fort Worth, Texas, on November 11, 12, 13, 15, 17, 18, 19, 22, 23, 24, 29, 30, December 1, LONE STAR GAS COMPANY 423 2, and 3, 1937, before James C. Batten, the Trial Examiner duly designated by the Board. The Board and the respondent were rep- resented by counsel and appearances were entered on behalf of the Unions. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing, the respondent renewed its objection to the jurisdiction of the Board. At the close of the presentation of the evidence relating to the Board's jurisdiction, the Trial Examiner overruled the objection. At the close of the Board's case and again at the close of the hearing, the respondent moved for dismissal of the complaint on the grounds that the Board lacked jurisdiction and that the evidence failed to show that the respondent had engaged in any unfair labor practices. The Trial Examiner denied this motion in so far as it was based on the first ground, and reserved ruling on the second ground. The respondent made an alternative motion that in the event of the denial of its motions for dismissal of the entire complaint, each allegation of the complaint not sustained by the evidence be dismissed. The Trial Examiner reserved ruling on this motion. At the close of the presentation of evidence relating to the Board's jurisdiction, the respondent likewise orally renewed the exceptions, contained in its "Exceptions to the Complaint," filed along with its answer. These exceptions state that the allegations of the complaint concerning the refusal to bargain collectively with the Unions are defective because there is no allega- tion that the Unions had been selected to represent the respondent's employees for the purposes of collective bargaining in an election conducted by the Board pursuant to Section 9 (c) of the Act. The Trial Examiner reserved ruling until the close of the hearing, when he overruled this exception. After M. L. Perrin, an employee named in the complaint as having, been discriminatorily demoted, had testi- fied and left Fort Worth, Texas, counsel for the Board moved to amend the complai-nt by adding an allegation that on or about June 13, 1937, the respondent discriminatorily discharged M. L. Perrin. The Trial Examiner granted the motion subject to the return of this witness for further examination. On motion by counsel for the Board, the complaint was amended to strike therefrom the names of Granville Tyson and Berry Akin, who were alleged therein to have been discriminatorily discharged. The Board has reviewed the rulings of the Trial Examiner on other motions and on the objections to the admission of evidence, and finds that no prejudicial errors were committed. The rulings, except as indicated below in this Decision, are hereby affirmed. All motions to dismiss presented at the hearing as to which the Trial 283029-41-vol. 18-28 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner reserved ruling are hereby denied, except in so far as this Decision and Order dismisses certain allegations of the complaint. On February 8, 1938, the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recom- mended that the respondent cease and desist therefrom and, affirma- tively, bargain collectively with the Unions as the exclusive representative of its employees in the operating department of the Fort Worth Division ; that it retain upon its reemployment list of the employees discharged on April 1, 1937, the names of M. L. Perrin, S. M. Barron, and IT. R. Williams and offer them employ- ment pursuant to the agreement of April 15, 1937; and that upon application, the respondent offer those employees who went out on strike on May 27, 1937, reinstatement to their former positions with- out prejudice to their seniority and other rights and privileges, dismissing if necessary persons hired since May 27, 1937, to perform the work of such employees, and place those for whom employment is not available on a preferential list to be offered employment as it arises on the basis of seniority by classifications before any other persons are hired. In his Intermediate Report, the Trial Examiner denied the motions of the respondent to dismiss the complaint and, inasmuch as M. L. Perrin had not returned to the hearing for further examination, ruled out the allegation added to the complaint at the hearing that on or about June 13, 1937, the respondent had dis- criminatorily discharged M. L. Perrin. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter the respondent filed exceptions to the Intermediate Report. The Board has considered all the exceptions of the respond- ent to the findings made in the Intermediate Report, and in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. At the hearing, the Trial Examiner advised the parties that they had the right to apply for oral argument before the Board and to file briefs. Thereafter the respondent filed a brief which the Board has considered. None of the parties applied for oral argument. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Lone Star Gas Company is a Texas corporation, incorporated on June 4, 1909, having its principal office at Dallas, Texas. It is the LONE STAR GAS COMPANY 425 largest subsidiary of Lone Star Gas Corporation, a holding company, which owns securities giving it 99.99 per cent of the. voting control of the respondent.3 The respondent is a natural gas producing and distributing company, operating in Texas and Oklahoma. Among its other properties, it owns and operates the sole distribution plant in Fort Worth, which became one of its units on April 1, 1931, upon the merger of Fort Worth Gas Company with the respondent. Since the merger, the distribution plant has been operated as the Fort Worth Division of the respondent and for the purposes of manage- ment is administered as a separate unit of the respondent. The em- ployees of the Division are paid directly by the Fort Worth office. The Division's function is confined to the distribution of gas in the City of Fort Worth and to the sale of stoves and other gas appli- ances. With the exception of M. L. Perrin, who after April 1, 1937, was employed in the respondent's pipe-line division, this.proceeding is concerned only with individuals employed in the respondent's Fort Worth Division.4 The respondent has 268 producing gas wells in Texas and 50 in Oklahoma and its main line transmission system consists of 3,470.86 miles of pipe line in Texas and 410.35 miles in Oklahoma. The sys- tem serves 262 communities in Texas and 27 in Oklahoma. During the calendar year ending December 31, 1935, the respondent's total sales .amounted to 36,723,420 M. C. F.6 of which 954,199 M. C. F. constituted interstate transactions involving the movement of gas from Texas to Oklahoma and 1,277,551 M. C. F. constituted inter- state transactions involving the movement of gas from Oklahoma to Texas. Although similarly inclusive figures for the calendar year preceding this hearing were not introduced in the record, it is clear from the testimony and from a map, introduced in evidence, on which is delineated the respondent's pipe-line system, that the respondent's operations continue to involve such interstate trans- actions. The respondent obtains its gas from 32 fields located in a Other subsidiaries of Lone Star Gas Corporation are : Lone Star Gasoline Company ; Northwest Cities Gas Company which owns and operates manufactured gas distribution plants in six towns located in Oregon , Idaho, and Washington ; Council Bluffs Gas Com- pany which owns and operates a natural gas distributing plant in the city of Council Bluffs. Iowa ; The Northern Natural Gas Company which distributes natural gas in seven States; Community Natural Gas Company which distributes natural gas to 253 communi- ties in Texas and 26 in Oklahoma ; The Dallas Gas Company , County Gas Company, and Texas Cities Gas Company all engaged in the distribution of natural gas to certain com- munities in Texas ; and Guthrie Gas Service Company engaged in distributing gas In Oklahoma. 4 The above statement does not signify that the effects of any unfair labor practices committed by the respondent with respect to employees in the Fort Worth Division are confined to the employees of that division . Indeed, the effects of such unfair labor prac- tices extend to all the employees engaged in the respondent's enterprise in both Texas and Oklahoma . Conduct which interferes with or discourages the self-organization of employees in one of the respondent's divisions will similarly tend to affect persons employed in other divisions. 6 M. C. F. is an abbreviation signifying a thousand cubic feet. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas and Oklahoma. The principal sources of supply for its trans- mission system are the Shamrock or Wheeler County fields in the Texas Panhandle; the Chickasha and Duncan fields in Oklahoma; the Fox field in Oklahoma; the Central West Texas fields; a small group of fields centered around Eastland County in West Texas; and the Central East Texas fields, including Long Lake, Cayuga, and Red Lake fields in Anderson and Freestone Counties. • A portion of the gas used in Fort Worth comes from the Shamrock and Wheeler County fields in the Texas Panhandle. From the gath- ering lines in the fields, the gas is discharged into an 18-inch pipe line which runs from Wheeler County, Texas, into Oklahoma travers- ing a portion of that State and then reentering Texas. At Petrolia, Texas, the pipe line converges with a 12-inch pipe line through which flows the gas obtained in the Chickasha and Duncan fields in Okla- homa. A field located near Petrolia supplies the respondent with small quantities of gas. At Petrolia, the gas obtained from these various sources is discharged into two pipe lines, a 16-inch pipe line belonging to the respondent and a 10-inch line owned by the United States. The gas from these sources, thus commingled, flows through the two lines which parallel each other until they reach the North Fort Worth city gate which is one of the three measuring stations controlling the delivery of gas into the Fort Worth distribution system. Gas not delivered at the North Fort Worth city gate flows into a 16-inch pipe line which continues eastward to a point near the city limits of Dallas and there is connected with the Dallas dis- tribution system. The above-described pipe lines serve various other communities in both Texas and Oklahoma.6 Transmission lines running east from the fields in West Texas to Joshua, Texas, and north from this point to Fort Worth make it possible to deliver gas produced in fields in West Texas to the Fort Worth distribution system. However, about a year prior to the hear- ing in this proceeding, a city ordinance was enacted prohibiting the introduction into Fort Worth of gas coming from Joshua,' so that at the time of the hearing, no gas obtained from the fields in West Texas and flowing through Joshua was used in Fort Worth. So far as the record shows, all gas delivered to Fort Worth is trans- ported through the above-described pipe lines running from the Shamrock and Wheeler County field in the Texas Panhandle and ° At Oklaunion , Texas, the pipe line, through which flows the gas obtained from the Wheeler County field in the Texas Panhandle, is connected with a 6-inch pipe line running north into Oklahoma from which certain towns in Oklahoma are supplied with gas. 'At the hearing, the president of the respondent stated that nitrogen was mixed with the gas at the stabilizing station located in Joshua , and that the city ordinance was directed against the introduction into Fort Worth of this mixture. It was also testified by the respondent's chief production engineer that it was possible for gas to pass through Joshua without processing it at the plant. LONE STAR GAS COMPANY 427 the Chickasha and Duncan fields in Oklahoma to Petrolia and thence to the North Fort Worth city gate. Gas is delivered to the Fort Worth city gates at pressures varying from about 150 to 300 pounds per square inch. Regulators located at the city gates reduce these pressures to amounts varying from 20 to 40 pounds per square inch. The gas is then discharged into the distribution system of the Fort Worth Division of the respondent for distribution throughout the city of Fort Worth. In Fort Worth, the Division maintains approximately 150. district regulator stations which further reduce gas pressures to amounts varying from 4 to 8 ounces. There are about 420 miles of low pressure mains in the city of Fort Worth, Which in September 1937, served 33,979 domestic and commercial customers. In the same month the Fort Worth Division served 92 industrial customers." Although the respondent does not have an exclusive franchise to distribute gas in Fort Worth, its Fort Worth Division has, in effect, a monopoly of gas distribution in that city, and there is only one plant in Fort Worth which receives gas from any source other than the respondent. At the hearing, the respondent furnished the following data with respect to the volume of its gas deliveries during 1936: Its total sales of gas in Texas amounted to 38,907,539.M. C. F. Of this amount, 7,325,059 M. C. F. originated in the Shamrock fields in the Texas Panhandle 9 and 760,128 M. C. F. originated in the Oklahoma fields. Of the gas obtained in Oklahoma, an amount not exceeding 300,000 M. C. F. was delivered into Texas from the Fox field.10 None of the gas, however, obtained from this field is delivered to Fort Worth. The total amount of gas delivered to Fort Worth during 1936 was 5,826,986 M. C. F. Any stoppage of gas deliveries to Fort Worth caused by industrial strife would require the respondent either to reduce the amount of gas obtained from the Texas Panhandle and/or Oklahoma fields or to reduce the amount of gas obtained from other Texas fields and to divert gas obtained from the Texas Panhandle and Oklahoma fields to other communities heretofore using gas produced in such other Texas fields. Although the evidence indicates that in-the event of a stop- page in the flow of gas to Fort Worth, the respondent could thus divert s The division manager of the Fort Worth Division defining these terms stated that domestic customers are those using gas in their homes or small places of business ; that commercial customers are those using gas in larger places of business such as restaurants, coffee shops, and certain small industrial enterprises which do not use a sufficient amount of gas to come within the classification of industrial customers ; and that industrial customers are the manufacturing plants covered by individual contract using large amounts of gas. 9 As stated above, gas from the Shamrock fields is transmitted to Fort worth and other communities in Texas by way of Oklahoma. 11 The record does not indicate the exact amount of gas obtained from the box field and delivered in Texas during 1936. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its gas to other communities, it was not shown that the respondent would, in fact, thus divert its gas. Even if the respondent diverted its gas from Fort Worth to other communities, this would result in an interruption in the free flow of its gas in interstate commerce. The Fort Worth Division of the respondent also purchases pipe. stoves, and other equipment necessary to conduct its operations. Thus on March 8, 1937, it purchased 32,100 feet of pipe at a cost of $21,- 001.19. Most of the pipe used by the Fort Worth Division comes from Pittsburgh, Pennsylvania, and Youngstown and Lorraine, Ohio. The respondent does not always obtain its pipe directly from the manu- facturer but occasionally purchases it from supply companies who have agents in Texas. During an average year, the Fort Worth Di- vision purchases about $50,000 worth of stoves, industrial burners, and other equipment. Its total sales of such equipment amount to $75,000. The greater portion of the equipment which it sells is purchased from Texas representatives of supply houses. The major portion of the industrial burners sold by the Fort Worth Division is manufactured in States other than Texas. II. THE ORGANIZATIONS INVOLVED Gas Fitters Auxiliary to Local 146, United Association of Journey- men Plumbers and Steamfitters of the United States and Canada, is a labor organization affiliated with the American Federation of Labor, and admits to its membership employees of the respondent engaged in pipe fitting or pipe cutting. It excludes from membership office employees and salesmen. Local 859, International Hod Carriers, Building and Common Laborers' Union of America, is a labor organization also affiliated with the American Federation of Labor, and admits to its member- ship employees of the respondent engaged in common labor. III. BACKGROUND OF THE UNFAIR LABOR PRACTICES Although there appears to have been an abortive attempt to organize among the respondent's employees in 1923 and another in 1934, no labor organization existed among the employees of the respondent's Fort Worth Division prior to February 1937. The first meeting of employees interested in joining a labor organization occurred on Feb- ruary 28, 1937, at the Labor Temple in Fort Worth. Subsequent meetings were held on March 8 and March 22 at the same place. Dur- ing this early period of organization, only one union, referred, to in the record in this proceeding as the temporary organization, existed among the respondent's employees, who had not yet been organized into craft locals. A substantial number of the employees appear to have been organized during this period. The following employees LONE STAR GAS COMPANY 429 were elected as temporary officers : president, M. L. Perrin; vice-presi- dent, A. L. Angle; secretary, T. J. Ingram; treasurer, Berry Akin. In response to a request for a Federal union charter sent on March 12 to the Secretary of the American Federation of Labor, the editor of a labor paper, one C. M. Woodman, was informed that the employees of the respondent's Fort Worth Division should be organ- ized into two local unions, one chartered by the United Association of Journeymen Plumbers and Steamfitters of United States and Canada and the other by the International Hod Carriers, Building and Com- mon Laborers' Union of America. On March 22, 1937, one W. R. Williams, district representative of the American Federation of Labor, applied for a charter on behalf of the organized common laborers employed by the respondent, and on April 11, 1937, the charter was installed. On April 8, 1937, the Pipe Fitters' Union received its charter. The evidence is conflicting but it appears that some time in the latter part of March, or, in any event, by April 8, 1937, this local union was established as a separate organization with two of the respondent's employees, M. L. Perrin and R. M. Jarrell, respectively, serving as president and vice president." IV. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On March 8, 1937, W. R. Bennett, foreman of the distribution shop,'" and H. L. St. John, an assistant foreman in the distribution shop, stationed themselves near the entrance of the union hall where a meeting of the respondent's employees was being held that night and watched the respondent's employees as they entered the building. Bennett and St. John did not attempt to conceal themselves, and some of the employees spoke with them. Upon being invited by J. D. McMahon, an employee and one of the members of the Unions, to attend the meeting, Bennett refused. He stated that both he and St. John had to meet their wives who were at the theatre. Bennett also explained their presence by saying that he was seeking to purchase a radio. However, while looking at a window display of radios near the entrance of the union hall, they "would cut their eyes around there" to watch the employees who went by. Bennett and St. John left the vicinity of the entrance to the union hall at 7: 55 p. m., by which time practically all the union men had entered the hall 18 The 11W. A. Broyles, who does not appear to have been an employee of the respondent, served as secretary and treasurer of the Pipe Fitters' Union. The record does not indicate the date on which he assumed these positions. G As of April 1, 1087, there were 61 men employed under Bennett in the distribution shop.' About 45 or 50 employees attended this meeting. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony by witnesses for the Board regarding surveillance of this union meeting by these two men is unrefuted and we find that both men were present at the entrance to the union hall for the purpose of noting which employees attended the union meeting.14 About two or three days after the above-mentioned union meeting, when H. R. Williams, one of the employees with whom Bennett had spoken while standing near the entrance to the union hall, was seated after lunch at the respondent's warehouse, Bennett reminded him that they had seen each other at the entrance to the union hall and questioned him as to whether he had joined the union, why he had joined, and whether officers had been selected. To Williams' ques- tion, "what are they (union officers) for?" Bennett replied that "when they have a union they have to select officers so if any man gets dis- charged or fired then these men can take the grievance up with the officials and probably get them reinstated for just cause." Where- upon Williams asked, "Well, if they get fired why would they be fired?" Bennett replied that "there is generally always a bunch get fired when there is an organization like this in existence." When Williams stated that he joined the union "to better" himself, Bennett replied, "If you get fired you don't figure you bettered yourself any, do you?" After some further conversation, the men parted. Sometime about March 14 or 15, Bennett drove to the place where Jarrell, one of the respondent's- gang foremen, and his gang worked. He told Jarrell, among other things, that he "never did think much of a union" and "never did see where it benefitted anybody." He further stated that a union would prevent a capable man from receiv- ing any wage higher than that provided by the union scale. Upon the arrival of Weentt, Jarrell left to speak to him and the conversa- tion with Bennett ended. The respondent contends that Bennett's position was similar to that of the gang foreman, and that it was, therefore, no more respon- sible for Bennett's conduct and attitude toward union organization than for the conduct of and attitude expressed by the gang foreman. As already indicated, Bennett was foreman of the distribution shop and on April 1, 1937, there were 61 men employed under him in this department, including 2 assistant foremen. The gang foremen did not have any assistant foremen to aid them in performing their duties. It also appears that Bennett had the authority to hire and • 14 In several cases , the Board has found that such acts of overt surveillance by an employer constitute interference and restraint within the meaning of Section 8 (1) of the Act. See Matter of Precision Castings Company, Inc. and Iron Molders Union of North America, Local 80, 8 N. L. R. B., 879; Matter of Sterling Corset Co., Inc., and Universal Brassiere d Justrite Corset Co., Inc. and International Ladies' Garment Workers' Union, Local 85, 9 N. L. It. B. 858; and Matter of Titmus Optical Company and Optical Workcr Union, Local 00082, 9 N. L. It. B. 1026. LONE STAB, GAS' CO'MPAN'Y 431 discharge men in his department without consulting with any of his superiors. The gang foremen, however, had no authority to hire any men, and within the last 3 or 4 years immediately prior to the hearing in this case, they had no authority to discharge any men under their supervision until they had discussed the matter with Weentt, superintendent of the. street department, or Wade Page, sup- erintendent of distribution. The record also contains some evidence indicating that on at least one occasion, gang foremen worked under Bennett's direct supervision. Upon the basis of these facts, we find that Bennett is a supervisory official whose conduct with respect to the union organization and activities of the respondent's employees is attributable to the respondent. On or about March 15, 1937, Woodman phoned F. L. Carmichall, the division manager of the respondent's Fort Worth Division, and advised him that since the employees were speaking of. organizing and dissatisfaction existed among some of them, Carmichall should investigate this. Subsequent to this conversation, Carmichall spent several days visiting the locations where the various gangs of the respondent's street department were working and, calling the em- ployees from their work, spoke to the different groups. He likewise spoke to the employees who worked in the respondent's shop. Car- michall testified that he told the men, in substance, that he was not interested in whether they were forming a union but that he was concerned with any grievances which they might have. He testified that it was for this purpose that he had made the various talks. He testified further that a statement made by him during one of these talks that unions tend to level wages was in reply to a question by M. L. Perrin as to his personal opinion about unions. It was the impression of Woodman from reports which he received concerning Carmichall's talks that the effect of such talks was to free the men from any fear of "collectively or individually going to see him (Car- michall) over the heads of the foremen or the superintendents." The testimony, however, of at least 10 employees who were present at various of the talks given by Carmichall, although differing in detail, shows that he did not confine himself to expressions of con- cern over possible grievances which the men might have, but clearly revealed to them his disapproval of unions and sought to discourage self-organization by asserting that nothing could be gained thereby. Although avowing to the men that his were not anti-union speeches, Carmichall stated to them that he was unable to understand "the advisability of any group of men entering any kind of an organiza- tion or what they could gain out of it." He stated that joining an organization would not give the men any additional benefits; that he was always willing to deal with the men as individuals and to 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD listen to their grievances; that merit had governed and would con- tinue to govern all promotions made by the respondent; and that organization would not aid the employees in this respect. He further stated that employees did not have to belong to any organizations in order to keep their positions with the respondent, and that no one would be dismissed for belonging to any organization. According to the testimony of one employee who heard Carmichall deliver four of these talks, Carmichall stated at each of the talks that "just be- cause you belong to a union is not going to keep you from work- ing with this company. If you belong to the Catholics or the Ku Klux or any other organization, . . . it is not going to keep you from working with this Company, but it does have a tendency to keep a good man down and raise a bad man up." We have no doubt that the statements of Bennett to Williams and Jarrell constituted deliberate attempts to discourage the respondent's employees from joining a union of their own choosing. In the course of questioning Williams as to his union membership and the selection of union officers, Bennett linked with membership in the Union the possibility of discharge, and clearly indicated to Williams the applicability of his conversation to the incipient organizational activity of the respondent's employees and to Williams himself. In his conversation with Jarrell, Bennett expressed his personal dis- approval of unions and set forth such disadvantages to employees as he believed resulted from their existence. Carmichall's talks to the various groups of the respondent's employees also constituted a deliberate attempt to discourage such employees from joining a union of their own choosing. Although Carmichall made no threats, but on the contrary stated that the respondent would not discharge any employee for union membership, he nevertheless unmistakably expressed the respondent's and his own antagonism to union organ- ization by emphasizing the disadvantages accruing from the exist- ence of a union among the respondent's employees and by declaring that such employees would derive no benefits from joining a union. We find that the respondent, by the aforesaid activities of Ben- nett, St. John, and Carmichall, has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organiza- tion, to form, join, and assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. B. The discharges on April 1, 1937 On April 1, 1937, the respondent discharged 26 men employed in its street department and transferred 2 others, M. L. Perrin and LONE STAR GAS' COMPANY 433 T. J. Ingram, from its Fort Worth Division to the pipe-line division. The complaint alleges that 18 of these 26 men were discharged be- cause of their union membership, and that M. L. Perrin was trans- ferred and demoted for the same reason. None of the employees whom officers of the respondent had selected for dismissal received any advance notice of their impending dis- charges. On April 1, 1937, Wade Page, superintendent of distri- bution, and Henry Weentt, superintendent of the street department, visited various of the street gangs during working hours and per- sonally notified each of the employees and the gang foremen, whom the respondent's officers had decided to dismiss, of their dismissal. The men were given their pay at the places where they were working and in most instances they were requested to drop their tools and leave their work immediately. Thus several of the men left their work before the working day ended and without completing the jobs upon which they were engaged at the time they received the notices of dismissal. To some of the men, Weentt or Page explained that the weak financial condition of the respondent necessitated their dismissal, but several do not appear to have received any explanation. The respondent alleges that the men were dismissed because of the necessity of reducing expenses. The testimony shows that about the middle of March 1937, L. B. Denning, the president of the re- spondent, received the annual budget for 1937 which indicated that there had been a more rapid increase of expenses in the Fort Worth Division than in any other division of the respondent's system, and that expenditures thus far in 1937 had exceeded the budget esti- mates.l" This increase in expenditures was attributable to the higher cost of pipe and other materials and to the unusually large number of men employed during the past year for the purpose of inspecting the Fort Worth pipe-line system, repairing the leaks thus discovered, and overhauling the system.1, However, inasmuch as the leakage in the system had been reduced to a negligible amount by the middle of March, there was a diminution in the amount of inspection and repair work required." Therefore, on or about March 10 or 12, Denning directed that the inspection work be discontinued and that a reduction in force be made by releasing from the respondent's 11 Figures submitted by the respondent indicate that for the months of January and February 1937, expenditures exceeded the budget estimates by a total of $3,602. It does not appear what items are included in these estimates and data on expenditures. 16 Respondent Exhibit No. 25 received in evidence indicates that on March 31, 1936, the respondent had 176 employees in the shop and street departments of Its Fort Worth Division and that its pay roll on that date amounted to $14,795.62. On March 31, 1937, however, it had 199 employees on its roster and its pay roll amounted to $17,880.69. .17 The record contains some testimony that there was work available which the men dismissed on April 1 could have performed subsequent to that date. This testimony, however, does not contradict the respondent's contention that there was a diminution in the amount of work required to be done after April 1. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ such men as were not needed to conduct the normal opera- tions of the Division.18 Denning himself did not select the men who were to be dismissed, but instructed Carmichall and Wright, general manager of the Fort Worth Division, to make the selections upon a basis of seniority, merit, and marital status. Carmichall discussed the qualifications of the men with various foremen and subsequently selected those to be discharged. The men dismissed or transferred were all employed in the street department and were classified by the respondent with respect to the type of work performed as follows : 2 foremen of gangs, 1 inspector, 2 timekeepers, 2 employees of the machine and blacksmith shop, 1 truck driver, 1 compressor operator, and 19 laborers. A consideration of the evidence indicates that in selecting the men for dismissal the principle of seniority was for the most part ob- served and such deviations from a strict application of seniority as occurred do not establish that the discharge and transfer of the 28 employees was because of their union membership or activity. The evidence also clearly shows that at no time subsequent to April 1, 1937, did the respondent hire any men to replace the 26 men dis- charged on April 1 and the 2 men then transferred from the Fort Worth Division. Included among the 28 men discharged or transferred were all 4 temporary officers of the original organization established among the respondent's employees. However, the three officers named in the complaint were junior in length of service with the respondent to the men employed in the same classification whom the respondent retained in their positions. The record does not show how many of the men retained in the employment classification of those dismissed were members of the temporary organization on April 1.19 Assuming, however, the truth of the respondent's claims that 23 of the 28 men dismissed or trans- ferred on April 1, 19 of whom are named in the complaint, and 29 of the 36 men retained in the employment classification of those dis- missed, were members of the temporary organization on April 1, the 19 Shortly after the talks given by Carmichall on or about March 15, 1937, he discussed with each of the foremen the qualifications of the employees working under them, the question of salary increases, and the job classifications of the employees. On the follow- ing pay day, the respondent gave a general salary increase as of March 15 which applied to most of its employees in the Fort Worth Division . The respondent's officers explain the apparent inconsistency in increasing salaries at a time when financial reasons required a reduction in expenditures by stating that it was the policy of the respondent to adjust wages in accordance with the general trend of prices and the cost of living ; and that the increases in cost of living at this time required that the respondent give the general wage increase then instituted. 11 Of the 19 men named in the complaint as having been dismissed on April 1, 17 testified. Their testimony indicates that each of these were members of the temporary organization prior to April 1, 1937. LONE STAR GAS' COMPANY 435 percentage of union members among those discharged and the per- centage among those retained is almost exactly the same, and no evidence of discrimination can be found in a comparison of the two.20 This circumstance does not of itself establish the absence of discrimi- nation when other factors are present, but such other factors are not present here. We find that the respondent on April 1, 1937, did not discriminate in regard to the hire and tenure of employment of L. A. Worley, A. B. Angle, D. C. Gargis, H. R. Williams, J. A. Farris, Charles M. Haggard, John F. Wright, Joe Welch, Harry Caldwell, S. M. Barron, L. R. Dobbs, L. W. Wilson, W. G. Huff, E. H. Hudson, D. L. Taylor, R. M. West, and M. L. Perrin. C. The alleged refusal to bargain collectively 1. The appropriate unit The complaint alleges that the employees of the respondent in its operating department in the City of Fort Worth, Texas, consisting of gas fitters, helpers, meter setters, foremen, inspectors, meter readers, compressor operators, and common laborers, constitute a unit appro- priate for the purposes of collective bargaining. In its answer, the respondent states that it neither admits nor denies the allegation. The Trial Examiner found that the employees of the respondent engaged in its operating department in the City of Forth Worth, exclusive of employees in supervisory positions and of shop clerks, constitute an appropriate unit. In addition to the classes of employees enumerated in the above- mentioned allegation of the complaint, the respondent employs cer- tain other classifications of employees in its operating department such as appliance adjusters, meter repairmen, and truck drivers. An examination of the lists of union members introduced in evidence shows that union: membership has not been restricted to persons em- ployed in the classifications set forth in the complaint but that in the case of most classifications existing in the respondent's operating department, some employees are members of either the Pipe Fitters' Union or the Laborers' Union. It appears from the evidence that the Union claimed that all the employees engaged in the respondent's 20 The respondent, basing its assertions on the list of members of the temporary organ- ization submitted into the record, claims that on April 1, 23 of the 28 men dismissed or transferred and 29 of the 36 men retained were members of the temporary organization. Inasmuch as the list is not dated but merely indicates that it contains the names of the members of the temporary organization, it may be that the individuals named thereon, except such as testified with respect to their union membership at the hearing in the case, joined this organization at some time between April 1 and April 8 when the temporary organization was replaced by the Pipe Fitters' Union and the Laborers' Union, and were, therefore, not members of the Unions at the time of the discharges. For this reason, we are unable to make findings as to the extent of union membership on April 1 among the men retained in the employment classifications of those dismissed. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operating department in Fort Worth, whether or not employed in the occupational classifications enumerated in the complaint, constitute an appropriate unit. In support of this claim, there must be considered the similarity in the problems facing all such employees with respect to wages, hours, and other conditions of employment, as evidenced by an agreement signed on April 15, 1937, between the respondent and the Unions. The terms of the agreement fixing employment conditions, such as those relating to seniority or overtime, are not limited in applica- tion to certain classes of employees, but apply to all the employees in the respondent's operating department. The record discloses no reason why all employees in the respondent's operating department in Fort Worth, with the exceptions of certain classifications of em- ployees to be discussed hereinafter, may not properly be included in a single unit. We, therefore, find that the employees in the respond- ent's operating department in Forth Worth, with the exception of persons employed in certain occupational classifications to be con- sidered below, constitute an appropriate unit. The record shows that the superintendent of distribution and the general street foreman have executive authority and the duty of selecting employees to be dismissed. We shall, therefore, exclude these two officials from the unit. Despite the supervisory authority of the gang pushers or foremen of the street gangs and their power to recommend the dismissal of men working on their gangs, we believe that the gang foremen may prop- erly be included in the appropriate unit. The Pipe Fitters' Union admits them to membership. All except one of the nine gang pushers employed by the respondent joined the Pipe Fitters' Union and some have participated to the fullest extent in the organization and the activities of the Unions. Thus Perrin and Jarrell, both gang foremen, were among the active persons on the picket line during the two strikes in which the Pipe Fitters' Union was involved. As already indicated, Perrin and Jarrell served, respectively, as president and vice president of the Pipe Fitters' Union. Moreover, the gang fore- men, like other employees in the respondent's operating department, come within the scope of an agreement signed by the respondent and the Unions on April 15, 1937. That certain employees have supervisory duties does not preclude them from inclusion in a bargaining unit, where, as here, they are eligible for membership in the labor organiza- tions involved and no claim for their exclusion is made by a rival union.21 We find that the gang pushers or foremen of the street gangs are in the unit. 21 For a statement of the considerations for excluding minor supervisory employees where there are conflicting claims by rival unions , see Matter of Consumers Power Com- LONE STAR GRAS COMPANY 437 Employed in the operating department are 8 individuals whose job classifications indicate that they are employed in supervisory posi- tions,=2 13 individuals who are classified as clerks '23 and 2 individuals, respectively, classified as draftsman and junior draftsman. The names of none of these individuals appear on any of the membership lists of the Unions introduced in evidence. Nor does it appear that these individuals are eligible for membership in the Unions. In accordance with our usual practice, we find that such supervisory 24 and clerical employees,25 and the draftsman and junior draftsman,26 are not in the appropriate unit. We find that the respondent's employees engaged in its operating department in the City of Fort Worth, Texas, including the gang pushers or foremen of the street gangs, but excluding individuals employed as superintendent of distribution, general street foreman, warehouse foreman, distribution shop foreman, assistant shop fore- man, regulator foreman, garage foreman, meter repair shop foreman, machine shop foreman, chief clerk and clerks in the street depart- ment, warehouse clerk, chief clerk in the shop, shop clerk, draftsman and junior draftsman, constituted and constitute a unit appropriate for the purposes of collective bargaining, and that said unit insures to employees of the respondent the full benefit of their right to self- organization and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Unions of the majority in the appropriate unit The respondent introduced in evidence a list containing the names and job classifications of the 172 employees who were on the pay pany and International Brotherhood of Electrical Workers Local 876, 10 N. L. R. B. 780; Matter of Rea, Manufacturing Co., Inc. and A. F. of L., Federal Local Union No. 20893, 7 N. L. R. B. 95. 22 These individuals are classified as follows : One warehouse foreman, one distribution shop foreman, two assistant shop foremen, one regular foreman, one garage foreman, one meter repair shop foreman, and one machine shop foreman. 23 The job classifications of these individuals are as follows : One chief clerk and three clerks in the street department, two warehouse clerks, one chief clerk in the shop, and six shop clerks. u See for example , Matter of General Leather Products, Inc. and Suitcase, Bag & Port- folio Makers Union, 5 N. L. R. B. 573. 2. See for example, Matter of R. C. A. Manufacturing Company, Inc. and United Elec- trical & Radio Workers of America, 2 N. L. R. B. 159; Matter of Pacific Gas and Electric Company and United Electrical & Radio Workers of America, 3 N. L. R. B. 835; Matter of The Triplett Electrical Instrument Company, The Diller Manufacturing Company, doing business under the firm name and style of Readrite Meter Works and United Electrical and Radio Workers of America, Local No. 714, 5 N. L. It. B. 835. 20 See for example, Matter of Westinghouse Airbrake Company and United Electric and Radio Workers of America, Railway Equipment Workers Local No. 610. 4 N. L. R. B. 403; Matter of Atlantic Rasin Iron Works and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 13, 5 N. L. R. B. 402. 438 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD rolls of its shop and street departments on April 1, 1937.27 De- ducting from this number the 25 employees who are not in the appro- priate unit, and one person adjacent to whose name on such list ap- pears the notation that he left the respondent's employ on March 27, 1937, there remain 146 employees in the appropriate unit. The complaint alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (5) of the Act in re- fusing to bargain collectively with the Unions as exclusive represent- atives of the respondent's employees constituting the appropriate unit on March 22, 1937, and on various dates thereafter. For the purpose of proving that a majority of the respondent's employees desired the Unions to represent them on March 22, 1937, and thereafter, there were introduced in evidence several lists pur- porting to contain the names of employees who were members of the Unions, an application for a charter from the United Association of Journeymen Plumbers and Steamfitters to establish Local No. 146 among the respondent's employees, signed by 57 such employees, and an incomplete set of application cards of the Pipe Fitters' Union. Although these various documents relate either to the Pipe Fitters' or to the Laborers' Union, it appears that the employees by their membership in or their application for membership in either Union signified their desires to be represented by both Unions. As indi- cated heretofore, the employees had initially organized a single union referred to as the temporary organization. It is clear from all the evidence that after the establishment of the Pipe Fitters' and La- borers' Unions as two separate organizations, these two Unions con- tinued to operate in their relationship with the respondent as a single unit. Grievance and bargaining committees which met with officers of the respondent contained members of both Unions and bargained on behalf of all employees. A contract obtained by the Unions on April 15, 1937, discussed hereinafter, does not distinguish between members of the two Unions and both organizations acting together participated in two strikes which occurred, respectively, on April 12 and May 27, 1937. The application for a charter to establish the Pipe Fitters' Union among the respondent's employees, dated April 8, 1937 ,28 contains the signatures of 57 employees. There was also introduced into the record a list containing the names of 79 employees who were members of the Pipe Fitters' Union .29 All 57 names appearing on the application for the charter likewise appear on this list. The list 27 The names of the 28 individuals discharged or transferred from the respondent's Fort Worth Division on April 1 are not included among the 172 names on this list. 28 Bd. Exh. No. 16. 21 Bd. Exh. No. 24. LONE STAR GAS' COMPANY 439 indicates that 37 men, whose names also appear on the application for the charter, were initiated into the Pipe Fitters' Union on April 8, 1937; 38 on April 17, 2 on May 4; and 2 on May 18, 1937. We will disregard the names of 9 employees, who were among those dis- charged on April 1, appearing on both the application for the char- ter and such list. We will also disregard the name of another em- ployee which appears only on the list with a notation indicating that this employee was initiated into the Pipe Fitters' Union on April 17, 1937. In addition, among the application cards of the Pipe Fitters' Union introduced into the record is one, dated May 25, 1937, which bears the name of an employee whose name does not appear on either the application for the charter or the afore-mentioned list.30 Also it appears from the testimony of two employees whose names do not appear on any of the afore-mentioned documents that such employees had become members of the Laborers' Union on or before April 1, 1937. The testimony of one employee whose name appears on the above-mentioned lists with a notation that he was initiated into the Pipe Fitters' Union on May 4, 1937, and of two other em- ployees whose names appear on such lists with the notation that they were initiated with the Pipe Fitters' Union on April 17, 1937, in- dicates that these men had joined such organization prior to April 1, 1937. Another list prepared sometime in April 1937 and containing the names of 46 employees who were members of the Laborers' Union was also introduced in evidence.81 In computing the number of employees desiring the Unions to represent them, we disregard the names on this list of 7 employees who were among those discharged on April 1, 3 employees, whose names appear on other documents mentioned above, and the 2 employees, mentioned above, who testified that they had joined the, Laborers' Union on or before April 1, 1937. There also appears on this list after 19 other names the word "rat," after one name the word "quit," and after an additional 2 names the letters "I. 0. U." It is not necessary, however, to determine whether the addition of these words and letters after these 22 names signifies. that such employees ceased to be members of the Unions during the re- spondent's alleged refusal to bargain. Even if only the 12 remaining names on such list of employees who sometime in April 1937 and not later than April 30, 1937, had signified their desires to be represented by the Laborers' Union are added to the other employees whom we have already indicated signified their desires to be represented by the Unions on May 1, 1937, and prior thereto, such total constitutes Bd. Exh. No. 17KB. ffi Bd. Exh. No. 23. 283029-41-vol. 18-29 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a majority of the 146 employees whom we have found are included in the appropriate unit.32 A computation, on the basis of all the above information, of the number of employees desiring to be represented by the Unions indi- cates that 53 employees had signified their desires to be represented by the Unions on April 8, 1937; 68 by April 17; 80 by May 1; 81 by May 4; 83 by May 18; and 84 by May 25, 1937. Thus the evidence does not establish that at any time prior to May 1, 1937, the Unions represented more than 69 employees, which number does not consti- tute a majority of the 146 employees in the appropriate unit. On May 1, 1937, and thereafter, the result is different. By this date, 80 or a majority of the 146 employees constituting the appropriate unit had signified their desires, to be represented by the Unions, and as heretofore indicated, subsequently certain other employees likewise signified such desires. We find that on May I, 1937, and at all times thereafter, the Unions were the duly designated representative of a majority of the respond- ent's employees in the appropriate unit for purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, they were therefore, the exclusive representatives of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of work. 3. The alleged refusal to bargain The complaint alleges, among other things, that on or about March 22, 1937, and thereafter, the respondent refused "to bargain collec- tively with the Unions as the exclusive representative" of all the respondent's employees included in the appropriate unit in that "it refused to meet and/or negotiate with the representatives duly desig- nated for that purpose by the unions; it did not negotiate in good faith with the representative duly designated for that purpose by the unions; it did attempt to deal and/or negotiate with its employees individually with respect to basic rates of pay, wages, hours of em- ployment, and other conditions of employment; it did state that it would not bargain with the unions," and that "on or about May 1, 1937, and at various dates thereafter . . . the respondent did refuse and has refused to bargain collectively with the unions . . . within the meaning of the agreement signed on April 15, 1937," and within the meaning of the Act. Since, as indicated above, the evidence does not establish that a majority of the respondent's employees desired 82 Another list containing 98 names purporting to be the signatures of the members of the temporary organization was also introduced . This list was undated, many of the names thereon were unauthenticated , and it is generally in such condition that we do not feel that we can rely upon it in computing the number of employees who were members of the Unions. LONE STAR GAS' COMPANY 441 the Unions to represent them prior to May 1, 1937, we shall only consider such negotiations and efforts to bargain which occurred subse- quent to such date and certain events leading up to such negotiations. On April 12, 1937, the Unions called a strike and established a picket line in front of the respondent's warehouse. A series of con- ferences culminated in the signing of an agreement on April 15, which provided for recognition of the Unions as the bargaining agencies "for the members of their respective organizations and other em- ployees who may authorize these Unions to represent them," for rein- statement of the 26 discharged men if it became necessary to increase the number of persons employed, for conferences with officers of the respondent to consider wage adjustments when such questions arose, for maximum hours of work of 175 hours per month, and for payment of time and a half for overtime. The agreement barred strikes or lock-outs during its life which extended for a term of 1 year from the date of its execution, and it provided for the establishment of conference committees to adjust grievances. On April 16, 1937, the day following that upon which the agreement was signed, operations were resumed in the respondent's plant. That morning, Carmichall spoke to the men in the shop and then gave talks to the different street gangs. In substance, he told the employees that the respondent expected to abide by the terms of the agreement which it had just signed; that the employees should work together harmoniously; and that the respondent would treat alike both union and non-union employees. Carmichall also told one gang that em- ployment with the respondent was not conditioned upon union mem- bership, that "the union card wasn't going to hold your job," that members of the Union should not "put any pressure on the non-union men to make them join the union" and that employees not belonging to the Union would not do anything to keep men from joining the Unions. On the evening of April 19, Carmichall, at. Denning's instructions, called a meeting of the respondent's employees at the auditorium located in the respondent's office building. Denning addressed the employees, expressing his hope that no future difficulties would occur and that all employees would work together harmoniously. He also announced that those employees who worked during the strike would be paid. for the time they actually worked, and that, in addition, all employees of the respondent would receive full pay for the 4 days during which the strike occurred, whether or not they had, in fact, worked during that time.33 From April 16 to May 27, 1937, on which date a second strike occurred, three conferences were held between representatives of the 83 See subsection D, infra, for a discussion of the so-called "bonus." 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unions and those of the respondent. The first of these conferences took place on May 5, when, pursuant to a request by the Unions, Carmichall met with a grievance committee composed of about eight or nine men, including McMahon and Broyles. All except Broyles were employees of the respondent. The conference was held during working hours and lasted from about 9: 00 a. in. to 11: 00 a. in. Broyles and McMahon served as spokesmen and presented the griev- ances of the Unions. They complained that the job classifications of certain employees, including that of A. M. Johnson, had been lowered; that truck drivers were required to do work performed by compressor operators, and compressor operators to do the work of truck drivers at times when they were not occupied at their customary tasks; that the payment of wages by the respondent to those employees who con- tinued to work during the strike for the time they were on duty (in addition to the 4 days' pay which all employees alike received), con- stituted discrimination against the strikers ; that the respondent by a reduction in the number of hours to be worked each month was avoid- ing overtime and the payment of time and a half for such overtime, as provided for in the agreement, for work in excess of 175 hours each month; that men employed on the street gangs were not being paid for the time spent in going from a job in one section of the city to a job in another section; that the respondent had purchased certain chisels and lugs which had previously been made in its own shop, thereby preventing the reemployment of some of the 26 men dis- charged; and that the 26 men discharged on April 1 had not been reinstated. The representatives further complained that in the meter shop, the easier repair jobs were assigned to non-union men enabling them to repair more meters than members of the Unions who received the more difficult jobs; that non-union men had refused to assist helpers who were members of the Unions; and finally, that McMahon's street gang was understaffed. During the course of.the discussion, Carmichall agreed to remedy certain of the grievances mentioned. He instructed the foremen to pay hourly employees for the time consumed in going from one job to another. He agreed to increase McMahon's gang, and McMahon himself testified that he subsequently received additional men from other crews. Carmichall also stated that inquiry would be made as to the existence of discrimination in the meter shop through the assignment of the easier repair jobs to non-union men. With respect to job classifications, he replied that he would investigate the change in A. M. Johnson's classification from meter repairman to junior meter repairman. At a subsequent time, he informed the Unions that he had given instructions to restore A. M. Johnson to his previous classification. LONE STAR GAS COMPANY 443 As to the other grievances, Carmichall admittedly made no con- cessions. He insisted that non-strikers who had worked during the strike were entitled to receive the so-called "bonus," and he denied that the respondent's practices which were the subject of the other complaints by the Unions violated the agreement. After all the grievances had been discussed, the meeting ended by mutual consent. No further conferences were held until May 20, when, pursuant to a request by Fitzgerald, Carmichall again met with a committee representing the Unions. Fitzgerald accompanied the committee at this meeting and participated in the discussion. The representatives of the Unions presented substantially the same grievances which had been discussed at the previous meeting. The conference lasted from 2: 00 p. m. until about 5: 00 p. m. Carmichall stated that he would investigate the changes in the job classifications of certain appliance adjusters to determine whether these employees would be reclassified to their former grade as demanded by Fitzgerald. The meeting ended, however, without any settlement of the other grievances having been effected. On the following day, Fitzgerald sent a letter to Carmichall in which he charged the respondent with having violated the agreement by not remedying the grievances which had been discussed at the previous conferences, stated that the agreement was therefore can- celled, and requested a conference with Denning for the purpose of negotiating a new agreement. It was also stated in the letter that the Unions would demand the "right to bargain exclusively for all of the employees" of the respondent in its Fort Worth Division. Fitzgerald sent a copy of this letter to Denning. On May 24, Denning sent a written reply in which he stated that the agreement between the respondent and the Unions was "in full force and effect"; that officials of the respondent were always willing to meet with representatives of the Unions; and that he would confer with repre- sentatives of the Unions on May 26 concerning any matters arising under the existing contract. On May 26, Fitzgerald, accompanied by a committee of the respond- ent's employees, met with Denning and others of the respondent's officials. The meeting began at 10: 00 a. m. and lasted until about 5: 00 p. m. Fitzgerald acted as spokesman and again presented the grievances which had not been settled at the two previous meet- ings. At some time toward the beginning of the meeting, Fitzgerald declared that inasmuch as the respondent had violated its obligations under the existing agreement, the Unions had the right to present another contract. Thereupon, he proffered a copy of a proposed 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract to Denning who refused to take the document.34 Denning declared that the respondent had not violated the existing contract and that since the original contract was still in effect, he had no desire to discuss any new contract. During the rest of the confer- ence, Fitzgerald appears to have presented the grievances one by one and charged that the respondent was violating the contract by engag- ing in the practices which constituted the subject matter of the grievances. Denning replied by denying that any of these practices were in violation of the provisions of the contract. During the course of the discussion, some acrimony between Fitzgerald and Denning developed. At one point during the meeting a representative of the Unions suggested arbitration as a method for solving the differences between the Unions and the respondent. This Denning refused. Finally, Jarrell declared that to continue the discussion was futile, and that for this reason the committee should leave. Thereupon, the confer- ence ended. On the following day, the respondent's employees began their second strike and established a picket line in front of the respondent's shop. With respect to the conferences after the first strike, officers of the respondent met with the representatives of the Unions whenever requested and, in so far as it appears in the record, such officers acted in good faith during the course of the negotiations. Moreover, despite general assertions to the contrary made at the hearing, the respondent was not adamant in its negotiations with the Unions concerning the grievances presented, but did make certain conces- sions during the May conferences. As already indicated, it agreed to discontinue the practice of not paying the gangs for the time spent in going from one job to another. Further, Carmichall satisfied McMahon's complaint by transferring some men to his gang, and he stated that he would investigate the change which had been made in the job classifications of certain of the employees. Under the cir- cumstances of this case, it cannot be said that the refusals of the respondent's officials to accede to the other requests of the unions dis- closes bad faith or the respondent's determination to disregard its obligations under the Act. Question arises whether the respondent's refusal on May 26 to con-. sider the new agreement proposed by the Unions in lieu of the agree- ment signed on April 15 constituted a refusal to bargain collectively within the meaning of Section 8 (5). The existence of an agree- 34 Among other things , this proposed contract provided for sole bargaining rights, a 20-per cent wage increase, and the immediate reemployment of the 26 men discharged on April 1. LOIN STAR GAS COMPANY 445 ment between the respondent and the Unions does not relieve the respondent from its obligation to bargain collectively; nor does the signing of a collective agreement exclude from the possible subject matter of collective bargaining proposed changes in the agreement or the substitution of an entirely new agreement.35 The employer is under a duty to negotiate in good faith with respect to such proposals. Although the existence of a collective agreement, its terms and pro- visions, the circumstances of its execution, the date of its execution and termination, matters arising subsequent to its execution, and other related matters are factors in determining what constitutes good faith, it is clear that the employer may not categorically refuse to consider the proposals solely on the ground that he already has a signed agreement with the union presenting the proposals. In the instant case, however, Fitzgerald, representing the Unions in the conference with Denning and Carmichall, insisted that the respon- dent had violated the agreement and that for this reason the agree- ment had been canceled. He then tendered the proposed substitute agreement to Denning. Upon the evidence, we cannot find that the respondent had violated the agreement and since Fitzgerald had advanced as the basis of his demand for a new agreement the respond- ent's alleged violations of the existing agreement, it was not unrea- sonable for Denning to deny that the respondent had violated the existing agreement,- and insist on discussing the alleged violations since they were the basis for the Unions' claim for a new agreement, and to refuse to consider the proposed agreement. Under such cir- cumstances, we cannot find that the respondent's refusal to negotiate with respect to the new agreement proposed by the Unions on May 27, 1937, constituted a refusal to bargain collectively within the meaning of Section 8 (5). Since the evidence does not disclose that the respondent refused to bargain collectively with the Unions, it will be necessary to dismiss the allegations of the complaint with respect to Section 8 (5). D. Other alleged discriminatory practices prior to May 27, 1937 The complaint alleges that the respondent discriminated against the Unions and their members in that it paid a bonus to those em- ployees who continued to work during the strike which commenced on April 12. As already noted, the respondent paid all employees their complete wages for the 4 days during which the strike continued, and in addition paid those employees who worked during the strike 35 See National Labor Relations Board v . The Sands Manufacturing Company, 306 U. S. 332 (1939 ) ; National Labor Relations Board v. National Licorice Company, 104 F. (2d) 655, (C. C . A. 2d, 1939 ) enf'g, as mod. Matter of National Licorice Company and Bakery and Confectionery Workers International Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. R. B. 537. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the time they then actually spent in working. Thus, 24 employees received from 1 to 4 days' pay in addition to the wages for the entire 4 days received by all employees. The payment of wages to employees who continue to work during a strike does not of itself constitute an unfair labor practice. Nor do we find from the afore-mentioned facts that such payment, coupled with the payment of wages to all employees alike for the 4 days during which the strike lasted, con- stitutes an unfair labor practice. The complaint also recites, that the respondent purchased certain tools formerly made "by all or a number" of the employees discharged on April 1 and that it reclassified and reduced to inferior positions "all or a number" of employees who had participated in the strike begun on April 12. The evidence indicates that the respondent pur- chased tools aggregating $35.33 in value and lugs aggregating $18 in value, and that prior to the first strike such tools and lugs had customarily been made in its blacksmith shop. Although there is some indication in the record that A. B. Angle, one of the men dis- charged on April 1, was engaged in making tools such as those subse- quently purchased by the respondent, there is no showing that the respondent made these purchases to avoid reinstating Angle because of any hostility against him resulting from his membership in the Pipe Fitters' Union. The evidence also indicates that the respondent changed the job classifications of a number of employees and that in several instances employees received job classifications which appear to have been inferior to those previously held. Of the employees who testified with respect to changes in classifications, only a few indi- cated in their testimony that such changes were accompanied by any change in duties or a lowering of their wages, and in no instance was it clearly established that such changes were made because of hostility by the respondent against the Unions. We find that the record does not support the allegations of the complaint discussed hereinbefore in this subsection. E. The strike of May 27, 1937, and discrimination during the strike As already indicated, the Unions called their second strike on May 27, 1937, and striking employees established a picket line in front of the respondent's shop. Some of the men who had been discharged on April 1 participated in strike activities. M. L. Perrin, who had not worked at the employment in Gainesville, to which he had been transferred, since April 10, 1937, at which time he was unable to per- form his duties because of a hernia, also joined the picket line on May 27. The respondent's offices, shop, and warehouse were shut down, and the striking employees established mass picket lines at these places. Gas continued to be distributed, however, and the LONE STAR GAS' COMPANY 447 striking employees did not interfere with the flow of gas to consumers. At certain times during the strike, the shop was completely shut down by the strike so that no work at all was performed. On the first day of this strike,36 representatives of the Unions told Bennett, foreman of the distribution ' shop, that a limited number of employees might enter the shop to take care of such emergencies as might arise and that such men should work a 12-hour shift instead of the 8-hour shift usually observed by the respondent. This arrange- ment lasted until June 21. ' The automobiles of the striking employees were lined up on either side of the entrance to the respondent's drive- way so that employees seeking to enter or leave the warehouse or shop had to pass between the automobiles. As employees entered or left the respondent's grounds, pickets questioned them concerning the emergency character of the order which they had been instructed to attend to, examined such orders, and searched the automobiles in which such employees were driving. At some time during the strike, an unidentified picket took hold of Carmichall's arm to hold him back but there is no evidence that any scuffle ensued. Strikers also followed employees sent from the shop in answer to requests for service to determine whether such calls were in fact emergencies. In some in- stances, the pickets determined that the orders were not of an emergency character, and the services requested were not rendered. It also appears that two or three employees stationed in the shop during the strike were informed by the strikers that if they left the shop, they would not be permitted to return. These employees re- mained on duty in the shop about 40 hours and then left. On June 6 or 7, the strikers installed a telephone on the picket line at the warehouse and shop and it was stated in newspapers that persons requiring services from the respondent should call this telephone rather than the respondent's telephones.37 On a certain day more than 25 or 30 calls were received over this telephone. Shortly after the beginning of the strike, Denning appealed to the Governor of Texas and to officials in the Texas Public Safety Com- mission to send Texas Rangers to Fort Worth for the purpose of maintaining order. No assaults or breaches of the peace had at this time occurred in connection with the strike. The first of such inci- dents took place on June 15 when an employee, Joseph E. Carpenter, was hit with a belt by some of the striking employees while attending to an emergency request for services pursuant to instructions from one of the respondent's shop clerks. 31 Inasmuch as the respondent does not base any of its claims upon the manner in which the striking employees conducted the first strike , we do not here discuss this strike and its conduct. Moreover, the strike was terminated by the agreement of April 15, 1937, whereby the respondent agreed to reinstate all the strikers to their former positions except those who had been transferred or discharged on April 1, 1937. 11 Jarrell ordered the installation of the telephone in his own name. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequently on June 21, 1937, the Texas Public Safety Commis- sion sent some Rangers to Fort Worth. The Rangers ordered the pickets to move across the street away from the side of the street where the respondent's shop was located and intervened to the extent of ordering the pickets to refrain from calling employees who worked "rats" and "scabs." 38 On June 23 and 24, there occurred several affrays between strikers and non-strikers. In seven or eight instances, strikers in groups of two or three and non-strikers in similarly sized groups assaulted each other. Fists and wrenches were used in these encounters. . Three non- strikers received hospital treatment for injuries thus sustained. On three or four occasions during these 2 days, air was let out of tires on some of the respondent's trucks, and at the hearing, S. M. Barron, an individual discharged on April 1, admitted having done this in the case of one truck. A striking employee, J. D. McMahon, testified that he had sold five or six joints of pipe which he had bought from, other strikers who had dug them up from the respondent's pipe lines. Although several complaints were filed with the Clerk of the County Court of Tarrant County, Texas, against striking employees alleging assault, aggravated assault, and tampering with tires on trucks-and automobiles of the respondent used by non-striking employees, all such complaints were dismissed subsequent to this proceeding on motion of the prosecuting attorney. During the strike, several conferences were held for the purpose of finding some means of settling the strike. The Trial Examiner erroneously ruled that all the testimony relating to such conferences and negotiations held for the purpose of settling this strike should be stricken from the record. We hereby reverse such rulings of the Trial Examiner. Inasmuch as the respondent itself offered such evidence and objected to its exclusion, no prejudice is suffered by the respondent in reversing the Trial Examiner's rulings and making such testimony part of the record herein. This testimony shows the following : On June 10 Denning stated to Broyles and Jarrell that there were six men whom the respondent would not reemploy and that Carmichall might later add certain others to this list of six. Denning did not at this time name the six men to whom he had reference. However, on June 12, a city councilman, one Seaman, requested Perrin and Jarrell to visit him at his office and there asked them whether there was any way in which the strike might be settled. Jarrell went to the picket line to inform the strikers of the proposal which Seaman had made to him. se The Rangers also arrested some striking employees during the strike. All such persons were shortly released from confinement and subsequent to the hearing, as indi- cated hereinafter, all complaints against such men were dismissed. LONE STAR. GAS' COMPANY 449 There the men voted as to whether they should abandon the strike on condition that all strikers be reinstated with the exception of the six men who, on June 10, Denning had declared would not be reemployed. At first, the men voted to abandon the strike and accept these terms. Subsequently, Jarrell returned to Seaman to inform him of the vote, and Seaman in turn conveyed the information to James M. Floyd, an attorney for the respondent. While Seaman was notifying Floyd of the vote taken by the Unions to abandon the strike, a committee arrived from the picket line and stated to Jarrell and Seaman that the strikers had reconsidered their decision and that inasmuch as the respondent would not reemploy the six men, it had been voted not to return to work. Jarrell asked Seaman to obtain the names of the six men whom the respondent would not reemploy. - Seaman telephoned to Floyd in his presence and obtained from Floyd the information that the six men were D. O. Burch, W. T. Vawter, J. O. Bamber, R. M. Jarrell, J. D. McMahon, and M. L. Perrin. Subsequently, on July 1, the respondent named certain other em- ployees who it declared would not be reemployed. On that day Broyles visited Denning in Dallas, Texas, in a further attempt to settle the strike, and received from him the list of those whom the respondent would not reinstate. The strikers whose names the respondent then added to the list were Virgil Pryor, J. F. Meggs, Fred Smith, and L. W. Hoffman. Apart from any testimony within the scope of the afore-mentioned rulings of the Trial Examiner, Carmichall testified at the -hearing, and his testimony is undisputed, that on June 10, 1937, the respond- ent had decided not to reemploy the six men named hereinbefore, and that subsequently, on July 1, 1937, the names of four more men were added to the list of those whom the respondent would not reemploy. Also in support of the above findings with respect to the negotiations on June 10, and thereafter, are admissions made at the hearing by counsel for the respondent in objecting to the exclusion by the Trial Examiner of evidence relating to such meetings and negotiations. According to these admissions, the respondent, on June 10, and thereafter, in reply to requests by representatives of the Unions inquiring whether it would permit all striking employees to return to their former positions, declared its determination not to reinstate certain of the striking employees. On June 23, 1937, the respondent, in seeking to induce its striking employees to return to work sent letters to a number of them in which it informed such employees that their former positions were avail- able and that if they desired to return to work, their employment in the future would depend upon the character of their work rather than, 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon anything which had occurred in the past. The letters ended by requesting the recipients to advise the respondent of their intention "in this matter." In certain of these letters there were included the following additional paragraphs : May we call your attention to the fact that the group insur- ance carried for you by the Company will, under the terms of the policy, automatically lapse on June 26th, one month from the date of your last employment with the Company, unless within that period you arrange to change to some other form of policy to be paid for by you. We would regret having you lose the benefit of this insurance through failure to return to your work within the time limit permitted under the policy, and accordingly suggest that if you desire to return you do so in time to avoid the loss. Subsequently, on June 29, 1937, the respondent sent another letter to its striking employees in which it stated the following : Several days ago we wrote you advising that your former position with the company was still open, and we invited you to return to work. Since that time we have not heard from you although we urged prompt action. The time has now come when you must determine what you are going to do. If you do not return to work by Saturday, July 3, 1937, at 8 a. in., we will assume that you have terminated your employment relations with the Company and we will act accordingly. An undetermined number of striking employees returned pursuant to these letters.39 A number of others, however, informed Carmichall that they woud not return to work. On July 3, 1937, the respondent sent letters to each of the 26 men "eligible for reemployment" 40 who had been discharged on April 1, in which it stated that the respondent found it necessary to hire some additional men; that under the agreement of April 15, persons discharged on April 1 held preference for positions which were avail- '*with respect to which of the above-mentioned letters were received by the different employees, it was stipulated at the hearing by all the parties to this proceeding as follows'(Bd. Exh. Nos. 31 and 32) : 16 men received the first letter of June 23. 18 men received the letter referring to group insurance of June 23. 32 men received the letter of June 29. In addition, 10 employees whose names do not appear on the above-mentioned stipulation testified that they received the letters of June 23 and 29. 40 A "Summary and Argument" filed by the respondent subsequent to the hearing herein states that copies of the July 3 letters were sent to the two Unions and to the former employees who were laid off on April 1, 1937. LONE STAR GAS COMPANY 451 able; and that any applications for reemployment must be made by 8 a. m. on July 9, 1937. The letter ended with the following paragraph : - Failure on the part of any eligible member of the above named group (the employees discharged on April 1) to apply for employment within the time stated will be taken as an indication that he does not wish to be reemployed by this Company, and the Company, having complied with its contract to give preference to this group, will thereafter proceed as it sees fit. Subsequent to the sending of this last letter, five of the men dis- charged on April 1, 1937, resumed their employment with the respondent. Inasmuch as the strike commencing on May 27, 1937, was a contro- versy concerning terms and conditions of employment, it was clearly a "labor dispute" within the meaning of Section 2 (9) of the Act. The work of the striking employees having ceased as the result of a current labor dispute, they at all times thereafter, during the currency of the dispute, retained their status as employees of the respondent, within the meaning of Section 2 (3) of the Act and were protected against the unfair labor practices denounced by it 41 Under the *Act, the respondent was under a duty, therefore, not to discriminate in regard to their hire and tenure of employment in such way as to dis- courage membership in the Unions. It is not contended that any of the six striking employees refused reinstatement by the respondent on June 10 were inefficient in their work, but rather that their conduct during the strike rendered them unreliable and unfit to be employed by a public utility. The re- spondent takes the position that since it is a public utility, it must require higher standards of conduct from its employees than other businesses not engaged in public service and that, for this reason, it might well be justified in discharging or refusing to reinstate em- ployees for conduct which would not constitute sufficient cause for discharge or refusal to reinstate in the case of persons employed by other types of enterprises. The Act does not affect the standards or qualifications required by an employer of his employees with the single exception that such required standards or qualifications must not interfere with the employees' "right to self-organization, to form, 41 National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U. S. 333 (1938) rev'g 92 F. (2d) 761 (C. C. A. 9th, 1937), and enf'g Matter of Mackay Radio & Telegraph Company, a Corporation and American Radio Telegraphists' Association, San Francisco Local No. 3, 1 N. L. R. B. 201; Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4th, 1937), cert. den., 302 U. S. 731 (1937), enf'g Matter of Jeffery-DeWitt Insulator Company and Local No. 455, 17nited Brick and Clay Workers of America, 1 N. L. R. B. 618. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join, or assist labor organizations, to bargain collectively through representation of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection." Although the respondent, as an enterprise en- gaged in public service, may require standards of conduct from its employees not required by other types of business, the respondent's employees are not for that reason excepted from the rights guaranteed by the Act, but, on the contrary, are protected against discrimination because of union activity and against the other unfair labor practices denounced by its provisions to the same extent that persons employed in other kinds of businesses are protected by it. In explanation of the respondent's decision not to reemploy these men, Carmichall and Denning stated at the hearing that these men had, without any authority from the respondent, set certain meters, taken orders from customers, kept customers, officials, and employees of the respondent from its offices and place of business, and had in other ways interfered with the respondent's business, and further that certain of these men had committed assaults, hereinbefore mentioned, upon certain employees. We turn, then, to an examination of the extent to which the six men refused reinstatement on June 10 par- ticipated in the above-mentioned activities, exclusive of the assaults, which will be discussed hereinafter, for the purpose of determining whether the respondent's refusal to reemploy such men constituted discrimination within the meaning of the Act. Among these men were Perrin and Jarrell, respectively, president and vice president of the Pipe Fitters' Union. All six men refused reinstatement on June 10 were admittedly active participants in the strike and were among those prominent in directing the strikers' ac- tivities. Jarrell, Burch, and McMahon had served on the committee which was in charge of picketing and of passing upon the emergency character of orders. Sometimes employees of the respondent brought orders which they received to the picket line to enable McMahon and the other strikers to examine the orders and determine which orders the employees on duty should answer. Burch, Bamber, McMahon, and Vawter, as well as other unnamed pickets, stopped the re- spondent's cars as they left or returned to the shop in order to count the meters and examine the orders. On some occasions, McMahon and other strikers refused to permit the answering of an order on the ground that it was not an emergency. It appears that under such circumstances, the respondent's employees on duty acquiesced to the wishes of the strikers and did not perform the services requested in the orders. During the strike, Bamber performed duties which he normally performed when working regularly for the respondent. He answered emergency calls and under the direction of a union LONE STAR GAS COMPANY 453 committee connected and disconnected meters. McMahon also served on a committee whose function it was to select strikers to follow em- ployees who had been sent to answer an order for the purpose of de- termining whether the order was an emergency one. Burch served as a spokesman for the Unions in informing Bennett, foreman of the distribution shop, of the manner in which the strike was to be con- ducted. Jarrell was among those who installed the telephone on the picket line. Without the respondent's consent, Jarrell had also, on one occasion, installed a meter at a customer's house. These activities which the respondent advanced as a partial basis for its refusal to reinstate the six men constituted the technique utilized by such strikers in the conduct of the strike and resulted in a discontinuance of work by the employees in the respondent's shop and street departments. Although the respondent did not attempt to operate its plant in disregard of the demands set forth by the striking employees but complied with these demands until June 21 when the Texas Rangers arrived in Fort Worth, there is no showing that vio- lence would necessarily have resulted if the respondent had attempted to operate its plant in disregard of such demands or that the striking employees had coupled their demands with threats of violence. The respondent, however, realizing the possibility of violence, acquiesced in the demands of the striking employees and confined its operations within the limits prescribed by these demands. Throughout the course of the strike, gas continued to be delivered to the consumers in Fort Worth and the striking employees made no effort to prevent the flow of gas through the distribution system. There is no evidence that the conduct of the strikers resulted in any damage to or destruction of the respondent's property. In so far as any conclusions can be drawn from the record with respect to these activities, the afore-mentioned striking employees sought while con- ducting an effective strike to protect both the respondent and the public by arranging to take care of such emergencies as might arise during such strike. These activities wem union activities, within the contemplation of the Act. We find that the respondent in basing its discharge of D. 0. Burch, W. T. Vawter, J. 0. Bamber, R. H. Jarrell, and J. D. McMahon 42 on these activities discriminated against them within the meaning of Section 8 (3) of the Act. The respondent also asserts that the assaults and the deflation of tires, allegedly perpetrated by the six men whom it decided on 4' As indicated hereinbefore , Perrin did not return to the hearing for further examination pursuant to the Trial Examiner's ruling permitting, subject to Perrin's return for such further examination, the addition to the complaint 'of an allegation that on or about June 13, 1937, the respondent discharged M. L. Perrin. We, therefore, do not find that the respondent discriminatorily discharged M . L. Perrin on June 12. For a further discussion of Perrin see the Section herein entitled "The Remedy." 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 10 would not be reemployed, were a factor in denying these men employment. Although the testimony shows that three of these men, Burch, Bamber, and McMahon, were involved in incidents during which assaults occurred or during which damage was in- flicted upon cars and trucks driven by the respondent's employees, the record is completely barren of any evidence which would im- plicate Vawter, Jarrell, or Perrin in such incidents. We further note that the first assault or other such disturbance during the strike, as to which the record discloses the date of occurrence, did not take place until June 15, and only one of the six, J. 0. Bamber, was implicated in such incident. The incident in which McMahon was involved did not occur until June 23, a date 13 days subsequent to the time when the respondent had decided not to reemploy the six. The record indicates that the assault in which D. 0. Burch and J. 0. Bamber were implicated may have been one of the affrays occurring on June 24 .4' There is no evidence in the record to show that it occurred prior to this date. In the absence of such evidence, we find that this incident occurred after June 24. It is clear that the respondent's decision to discharge the six employees in question, made on June 10, could not have been affected in any way by these events occurring after June 10. Whether these events were of such a character that the Board should not exercise its discretion to reinstate the employees involved in them, we consider subsequently in dealing with the appropriate remedy. With respect to J. D. McMahon, his own testimony shows that at some time during the strike of May 27, 1937, he sold five or six joints of pipe which he had purchased from a striker who had dug up such joints from the respondent's pipe line and that at another time during the strike, he tore off the shirt of one Hart, a non-striking employee, who threatened McMahon, in an attempt to take from Hart a gun which Hart claimed to have in his car. The respondent, however, did not claim that these incidents con- stituted the reasons for its refusal to employ McMahon. It therefore appears that the respondent's reason for its refusal to employ McMahon, as in the case of the other men whom it refused to employ on June 10, was his participation in union activity during the strike, and that such refusal constituted discrimination against McMahon because of such union activity. 43 The testimony of Burch, who testified concerning the incident , shows that the car in which he, Bamber, Williams, and other strikers sat, stopped beside one of the respond- ent's trucks in which sat one Cromwell who had charge of the truck , and certain other employees ; that Williams approached. Cromwell and spoke to him ; that an unidentified man struck Williams with a pick handle ; that Burch and one Bramlett asked one Bills for his pick handle ; that Bills made "a high dive" at Burch ; and that Burch threw a rock at Bills but did not hit him. Other rocks were thrown on this occasion, but there is no showing that either Burch or Bamber threw any rocks other than the one concerning which Burch testified. LONE STAR GAS COMPANY 455 In view of the respondent's declarations during negotiations on June 10 and 12 that it would not reinstate D. 0. Burch, W. T. Vawter, J. 0. Bamber, R. M. Jarrell, and J. D. McMahon, and its steadfast adherence to this determination subsequent to such declarations, such men were not required to make application for reinstatement.44 Thus the strike of the respondent's employees commencing on May 27, 1937, was prolonged because of the discriminatory condition to settlement of the strike and to the reinstatement of the striking employees interposed by the respondent on June 10, 1937, in refusing to employ D. 0. Burch, W. T. Vawter, J. 0. Bamber, R. M. Jarrell, and J. D. McMahon, because of their union activity. As indicated hereinbefore, the respondent announced on July 1, 1937, that it would not employ Virgil Pryor, J. F. Meggs, Fred Smith, and L. W. Hoffman, and asserted at the hearing that assaults in which these men were implicated constituted the reason for its refusal to employ them. These four men took part in the picketing but did not serve on any of the union committees directing the strike activities. Fred Smith and L. W. Hoffman each admitted participa- tion in three affrays between striking and non-striking employees which occurred on June 23 and J. F. Meggs admitted participation in three such affrays occurring on June 24. These incidents took place away from the picket line at various points in the city of Fort Worth. While the testimony is conflicting, the respondent maintained, and we find reasonably believed, that the foregoing strikers were the aggressors in these incidents. Inasmuch as J. F. Meggs, Fred Smith, and L. W. Hoffman were not particularly promi- nent in strike activities and each of these men admitted participation in the fights occurring during the strike, we find that the respond- ent's announced refusal to reemploy them on July 1 did not constitute an unfair labor practice, within the meaning of the Act. With respect to Virgil Pryor, he was identified by Joseph E. Carpenter as one of the strikers who had been involved in the incident on June 15 in which Carpenter was beaten with a belt. Although Pryor denied connection with the incident, we find that there were reason- able grounds for believing that he was implicated. Under the cir- cumstances, we find that the respondent's refusal to employ Pryor on July 1 did not constitute an unfair labor practice, within the meaning of the Act. 's See Matter of Carlisle Lumber Company and Lumber i Sawmill Workers' Union, Local 2571, Onalaska, Washington and Associated Employees of Onalaska, Inc., Intervenor, 2 N. L. R. B. 248, enf'd, 94 F. ( 2d) 138 ( C. C. A. 9 ), cert. den., 304 U. S. 575 ( 1938 ) ; Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R. B. 1252. 283029-41-vol. 18-30 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The striking employees to whom the respondent sent letters on or about June 29, 1937, notifying them that unless they returned to work by 8 a. m. July 3, 1937, the respondent would consider the employment relation terminated, were employees within the mean- ing of the Act and protected against the unfair labor practices denounced by it, since they had ceased work as a consequence of a labor dispute still current and had continued to refrain from working because of the respondent's unfair labor practices.45 The June 29 letters informed the striking employees in unmistakable terms that the respondent considered their continuing to refrain from working beyond July 3, 1937, as a renunciation of the employment relation- ship. By this procedure the respondent intended to, and in fact did, discharge such of the striking employees as received the letters and did not return to work on July 3.4e It is plain from the letters themselves that the respondent discharged these employees for the reason that they continued to strike beyond the dead-line fixed by the respondent, that is, for exercising their unquestioned right to refrain from working because of a labor dispute.47 A discharge for this reason is contrary to the express provisions of the Act and is discriminatory within the meaning of Section 8 (3) thereof.48 We find that the respondent discriminated in regard to the hire and tenure of employment of the striking employees who received the June 29 letters and did not return to work on July 3, thereby dis- 41 National Labor Relations Board v . Mackay Radio & Telegraph Co., 304 U. S. 333 (1938) rev'g 92 F. (2d) 761 (C. C. A. 9th, 1937), and enf'g Matter of Mackay Radio & Telegraph Company, a Corporation and American Radio Telegraphists' Association, San Francisco Local No . 3, 1 N. L . R. B. 201 ; Jeffery-Dewitt Insulator Co. v. National Labor Relations Board, 91 F. ( 2d) 134 (C. C. A. 4th , 1937 ), cert . den., 302 U. S. 731 (1937), enf'g Matter of Jeffery-DeWitt Insulator Company and Local No . 1155, United Brick and Clay Workers of America, I N. L. R. B. 618. 46 At the time these employees were discharged and for some time after July 3, their jobs were unfilled and available and the respondent by discharging them made it futile for them to apply for reinstatement after July 3. See Matter of Carlisle Lumber Com- pany and Lumber & Sawmill Workers Union, Local 2571, Onalaska, Washington and Associated Employees of Onalaska, Inc., Intervenor, 2 N. L. R. B. 248 , enf'd 94 F. (2d) 138 (C . C. A. 9th , 1937 ), cert . den., 304 U . S. 575 ( 1938 ) ; Matter of Sunshine Mining Company and International Union of Mine,'Mill and Smelter Workers, 7 N. L. R. B. 1252. ,'It is clear that the discharge was not motivated by the manner in which the strike was conducted. This appears from the letters themselves , and from the fact that at the time the letters were sent out, the strike was no longer conducted in the manner of the early days of the strike. On July 21 the pickets had been moved across the street from the respondent 's shop and the arrangements whereby the respondent might only employ a limited number of men to take care of emergencies as they might arise was no longer observed. At latest by June 24 or 25, the respondent had unimpeded ingress to and egress from its shop . Except in the case of those men whom it declared on June 12 and July 1 it would not reemploy , the respondent does not appear to urge that the manner in which the strike was conducted rendered the strikers unfit to be employed by it. 48 See American Manufacturing Company ; Company Union of the American Manufac- turing Company ; The Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers Organizing Committee, C. I. 0., 5 N. L. R . B. 443, enf 'd National Labor Relations Board v. American Manufacturing Com- pany and Nu-Art Employees, Inc.. Intervenor, 106 F . ( 2d) 61 ( C. C. A. 2d , 1939). LONE STAR GAS COMPANY 457 couraging membership in a labor organization. We further find that this unfair labor practice prolonged the strike. By its letters sent on or about July 3, 1937, to the 26 men dis- charged on April 1, 1937, the respondent also discriminated against these men.49 In these letters, the respondent stated that in accordance with the agreement of April 15, 1937, between it and the Unions it was notifying the 26 men that unless they returned to work by 8 a. m. on July 9, 1937, they would forfeit their right of preference for reem- ployment established by the agreement. As evidenced by the agree- ment and by the afore-mentioned letters, this group of men retained preference for reemployment when work became available and the respondent found it necessary to hire additional men. Pursuant to this agreement, persons on the preference list thus established were to be called back on a seniority basis, and the respondent was not entitled to seek additional employees from other sources until the names on the list were exhausted. To this extent, the 26 men main- tained a relationship with the respondent and were employees within the meaning of the Act. Although these men were on strike they still retained their status as employees because they continued away from work in consequence of the labor dispute and of the respondent's unfair labor practices, and as such they were protected against the unfair labor practices denounced by the Act. The respondent, by its letters of July 3, 1937, notified these men that unless they abandoned the strike, it would cut off their employee status solely for the reason that they remained on strike. The respondent's action penalizing employees who remained on strike, solely because they remained on strike, constitutes an unfair labor practice within the meaning of Section 8 (3) of the Act against those men discharged on April 1 who did not return to work on July 9, 1937, as requested by the respondent. Question arises whether William C. M. Huff, one of the men who received one of the letters, was also thereby discriminated against by the respondent. On July 9, Huff called upon Carmichall in response to one of these letters requesting him to return to work. At this time Carmichall had been informed that, during a parade of the striking employees, Hnff had displayed two toy rats to the onlookers and called one Denning and the other Carmichall. When Huff asked about a job, Carmichall questioned him about this incident and his reasons for joining the Union. Huff, according to his own testimony, 49 Testimony of four of these men, namely, S . M. Barron, J. Welch , H. R. Williams, and L . W. Wilson, shows that they participated in the strike of May 27, 1937. The record does not disclose whether any other of the 26 men discharged on April 1 par- ticipated in the strike. As already noted hereinbefore, 17 of the 19 men named in the complaint as having been discriminatorily discharged stated that they had joined the Unions prior to April 1, 1937. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fearing that he would be refused a, job, told Carmichall that he was leaving Fort Worth to go to a camp of the National Guard for a few weeks and asked Carmichall if he could have a job when he returned. Carmichall replied that he did not know if any work would then be available. On or about August 14, Huff saw Car- michall a second time about returning to work. Carmichall again questioned him about the incident in which he had displayed the toy rats and told him that at this time no work was available. He then gave Huff an application blank. From the foregoing evidence, it appears that Huff refused to resume employment with the respondent on July 9, not to continue striking, but to go to the camp of the National Guard. When finally on August 14, Huff returned, the respondent no longer had any posi- tion available for Huff. Under the circumstances, it appears that Huff was not reinstated for the reason that his refusal to return to work on July 9 was based on his desire to go to Camp and not as in the case of the other strikers upon refraining to work because of a labor dispute. We find that the respondent did not discriminate against Huff because of his union membership or activity. The respondent claims that the Unions by going on strike on May 27, 1937, breached the agreement of April 15, 1937, which contained a provision that "there shall be no strikes or lockouts during the life of this agreement.60 In this case, the respondent's employees ceased work in connection with a labor dispute regarding terms and condi- tions of such employment. Such strikers are, therefore, employees within the meaning of Section 2 (3) of the Act 51 and are protected against the unfair labor practices denounced by it unless a strike called in breach of a collective agreement is not a "labor dispute" as defined in the Act. Section 2 (9) defines the term "labor dispute," as used in the Act, as "any controversy concerning terms, tenure or con- ditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, . . ." The definition is all-inclusive in character and does not permit an exception in the case of strikes called in breach of contract. Moreover, breaches of agree- ments frequently occur, and we see no reason to hold that they automatically terminate the relationship of employer and employee between the parties to such agreements. Although a breach of eo In its answer, the respondent states that the Unions "should not be permitted to reap a benefit by virtue of their violations " of the agreement. 51 This section reads in part : "The term `employee' shall include any employee . . . and shall include any individual whose work has ceased in consequence of, or in connec- tion with, any current labor dispute or because of any unfair labor practice . . . 52 National Labor Relations Board v . Mackay Radio & Telegraph Co., 304 U. S. 333 (1938). LONE STAR GAS COMPANY 459 agreement, under certain circumstances, might be grounds for dis- charge, employers do not always take advantage of such ground but continue the relationship between such parties. And in the present case, the respondent made no claim at the hearing that it had denied reinstatement to or terminated the employment of any of the striking employees because of the claimed breach of contract. Whether or not the respondent might have discharged the striking employees for breach of contract, it is clear from the respondent's own evidence that it did not discharge them for this reason, but on the contrary, after the strike, as shown by its letters of June 23 and June 29 to the strikers in which it sought to induce them to return to work, it treated them as employees having rights to the positions which they had vacated by going on strike. We find that the respondent on June 10, 1937, and thereafter, dis- criminated against D. O. Burch, W. T. Vawter, J. O. Bamber, R. M. Jarrell, and J. D. McMahon; and that on or about July 3, 1937, it discriminated against those of its striking employees who did not return to work, pursuant to its request, in regard to their hire and tenure of employment and terms and conditions of employment to discourage membership in the Unions; and we further find that on about July 9, 1937, the respondent discriminated against those of its striking employees entitled to preference for reemployment with the respondent pursuant to the agreement of April 15, 1937, who did not return to work in accordance with its request, in regard to their hire and tenure of employment and terms and conditions of employ- ment to discourage membership in the Unions. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in subsections A and E of Section IV above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, tral,iportation, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY We have found that on June 10, 1937, the respondent discriminated against D. O. Burch, W. T. Vawter, J. O. Bamber, R. M. Jarrell, and J. D. McMahon, in regard to their hire and tenure and terms and conditions of employment; that the strike of the respondent's employees commenced on May 27, 1937, was prolonged by the re- spondent's unfair labor practices in thus discriminating against such striking employees on June 10, 1937; that on or about July 3, 1937, 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent further discriminated against certain of its striking employees as did not return to work on that date and abandon the strike in accordance with its request; that the strike was prolonged by such unfair labor practices; and that on July 9, 1937, the re- spondent discriminated against certain striking employees who did not return to work on that date and abandon the strike. We shall, therefore, in order to effectuate the purposes and policies of the Act, order the respondent to offer reinstatement to their former or sub- stantially equivalent positions to all the employees discharged on June 10 and July 3, listed hereinafter in Appendix A, and to give them back pay, and we shall further order the respondent to rein- state, upon application, the strikers whom it did not discharge on such dates, listed hereinafter in Appendix B,53 excepting, however, from these parts of our Order the men discharged on April 1, 1937, and certain other men to be discussed hereinafter. The reinstatement of the employees discharged on June 10 and July 3, listed in Appendix A, and the strikers not discharged on such dates, listed in Appendix B, shall be effected in the following manner : All employees hired after June 10, 1937, and not then in the, re- spondent's employ, at which date the respondent discriminated against the six employees whom it then refused to employ and prolonged the strike commencing on May 27, 1937, by its unfair labor practices, shall be dismissed, if necessary, to provide employment for those to be offered reinstatement. If, after this is done, there is not, by reason of a reduction in the force of employees needed, sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees, in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees re- maining after such distribution of available positions, for whom there are then no available positions, shall be placed upon a prefer- ential list prepared in accordance with principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions as such employment becomes. available and before other persons are hired for such work. 53 Appendix B contains the names of those striking employees whom the complaint alleges were discriminatorily discharged or refused reinstatement by the respondent, exclusive of those employees listed in Appendix A who were discharged on June 10 and July 3 and of those employees whose employment was terminated on April 1, 1937, as to whom we have found no discrimination, as of that date, beQQgsQ Q>; their union membership. LONE STAR GAS COMPANY 461 Normally, we would also order back pay in the case of the striking employees discriminatorily discharged on June 10 and July 3, from the dates of the discriminatory discharge to the time of the respond- ent's offer of reinstatement. In the instant case, however, the Trial Examiner in his Intermediate Report ordered the respondent to offer reinstatement to all its striking employees listed in Appendices A and B upon application by them. For this reason, the respondent, after it received the Intermediate Report, could have been expected to reinstate only such striking employees as applied for reinstate- ment pursuant to the Intermediate Report. The respondent shall, therefore, not be required to pay any striking employee discharged on June 10 or July 3 back pay from the date of the Intermediate Report (February 8, 1938) to the date when such employee made application for reinstatement, or in the case of such employees as made no application for reinstatement, to the date of this Decision .54 Accordingly, we shall order the respondent to make the striking em- ployees listed in Appendix A whole for any loss of pay they have suffered by reason of their respective discriminatory discharges by payment to each of them of a sum equal to the amount which he normally would have earned as wages from June 10, or July 3, 1937, as the case may be, on which dates the respondent discriminated against such striking employees, until February 8, 1938, the date of the Intermediate Report, and from the date of this Decision to the date of the offer of reinstatement, or placement on the preferen- tial list, and in addition, by the payment to each of such striking employees as made application for reinstatement pursuant to the Intermediate Report, of a sum equal to the amount which he normally would have received as wages from the date of his application for reinstatement to the date of this Decision; deducting, however, from the amount otherwise due to each of said employees the net earn- ings 55 of each of said employees during such periods. We shall also order that the respondent make whole the employees listed in Appendix B ordered to be offered reinstatement for any 54 See Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760 ; Matter of Shellabarger Grain Products Company and Flour and Cereal Workers Union, No. 20765, 8 N . L. R. B. 336; and Matter of Elkland Leather Company, Inc. and National Leather Workers' Association, Local No. 37, 8 N. L. R. B. 519. 65 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity for his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local No. 2590 , 8 N. L. R. B. 440. Monies received for work performed upon Federal , State , county, municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order shall be deducted from the sum due the employee,'and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work -relief projects. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loss they will have suffered, by reason of the respondent's refusal to reinstate them, upon application following the issuance of this order, by payment to them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from 5 days after the date of such application for reinstatement or placement on the preferential list, less his net earnings 56 during that period 57 With respect to M. L. Perrin, additional considerations arise. The respondent contends that subsequent to Perrin's transfer to a new position at Gainesville in the respondent's pipe-line division, he voluntarily relinquished his employment. Because of a hernia, Perrin found that he was unable to perform the work required of him in his new employment. Upon informing his new superior of his inability to do heavy work, Perrin was advised to report this to the Fort Worth Division. On or about April 10, Perrin returned to Fort Worth and reported to Carmichall concerning his physical condition. On April 29, Perrin was operated upon, and on May 5 he was discharged from the hospital. Prior to his operation, Perrin had participated in the first strike which occurred between April 12 and April 16, and subsequently, he visited the picket lines during the second strike on May 27 and thereafter. Inasmuch as the record does not bear out the respondent's contention that Perrin was not an employee at the time when the second strike occurred, and inasmuch as individuals absent from their work because of illness or disability normally remain employees, we conclude that Perrin occupied the status of an employee during the second strike.68 In this connection, we note that Perrin was absent from his work upon the advice of his superior in Gainesville. That Perrin participated in the strikes instead of directly undergoing necessary physical examinations, in accordance with Carmichall's instructions, did not alter his status as an employee. As already indicated, we have not found that Perrin was discrimi- natorily refused employment on June 12, 1937. Inasmuch, however, as Perrin retained his status as an employee during the second strike, he is in the same position as the other strikers who did not receive any letter discharging them on July 3, 1937, and like such striking employees, listed in Appendix B, we shall order the respondent to reinstate him, upon application, with compensation for any loss he 66 See footnote 55. 67 Oregon Worsted Co . v. National Labor Relations Board, 94 F. (2d) 671 (C. C. A. 9th, 1938), enf'g Matter of Oregon Worsted Company and United Textile Workers of America, Local 2435, 3 N. L. R . B. 36; Biles-Coleman Lumber Co. v. National Labor Relations Board, 98 F. (2d ) 18 (C. C. A. 9th, 1938), enf'g Matter of Biles-Coleman Lumber and Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L. R . B. 679. 68 See Matter of American Manufacturing Concern and Local No. 6, Organized Furniture Workers, 7 N. L. R. B. 753. LONE STAR GAS COMPANY 463 will have suffered by reason of the respondent's refusal to reinstate him upon application following the issuance of this order, by pay- ment to him of a sum of money equal to that which he would nor- mally have earned as wages during the period from 5 days after the date of such application for reinstatement or placement on the preferential list, less his net earnings during that period. Since we have found that the respondent has also discriminated against those of . the 26 men Bs who did not return to work on July 9, 1937, pursuant to the respondent's request, and since these men refrained from working because of the respondent's unfair labor practices, we shall order the respondent to place these men upon a separate preferential list, and, following a system of seniority to such extent as has heretofore been applied in the conduct of the re- spondent's business, to offer them employment in their former or substantially equivalent positions as such employment becomes avail- able and before other persons are hired for such work; provided that the men placed on this list shall not, however, be offered em- ployment in their former or substantially equivalent positions, when such are available to be filled, until all striking employees listed in Appendices A and B, who on May 26, 1937, occupied such positions or substantially equivalent positions, have been offered reinstatement in accordance with the principles set forth hereinabove. The respondent contends that certain striking employees who were implicated-in the affrays or acts of disorder occurring during the second strike G0 should not be reinstated. Where as in the instant case there is question as to the appropriateness of reinstatement of a large number of strikers, the Board confines itself to evidence of convictions and does not try accusations of disorder or violence which have not resulted in convictions in the criminal courts.61 We take judicial notice that all complaints filed in the local criminal court against strikers for disorder or violence were dismissed upon motion of the prosecuting attorney. There are admissions in the record by certain striking employees, accused by the respondent of having committed acts of violence, that they participated in certain assaults and acts of disorder, but for the most part such employees denied having started the fights or having deflated tires on the respondent's trucks or having committed other damage. Since the complaint against such employees were also dismissed by the local criminal court upon motion of the prosecuting attorney, we do not consider SO Appendix C contains the names of the men whom the respondent discharged on April 1, 1937, except A. B. Angle who died prior to the hearing in this proceeding. 80 The employees so implicated are D . O. Burch, J. O . Bamber, J. D . McMahon, W. T. Carroll, E . E. Harter , L. R. McDaniels , C. Strange, and H. W. Wilkinson. 0i Republic Steel Corporation v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A. 3rd ), enf'g as mod . Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these admissions as a reason for denying them reinstatement. A review of the evidence relating to the conduct of the striking em- ployees implicated in any such incidents does not disclose any em- ployees therein implicated whose return to work under normal con- ditions, free from unfair labor practices, seems likely to prove an obstacle to harmonious relations between the respondent and its employees.62 Since the record indicates that E. W. Thompson and L. J. Coffee resigned from the respondent's employ, respectively, on May 6 and June 23, 1937, we shall not include these two men in our order. The record also shows that when at the end of June or beginning of July 1937, Carmichall asked Archie Love and Clifford Love whether they wished to return to work, these two men refused and replied that they would go to the fields to do farm work. On the evidence, we cannot find that Archie Love and Clifford Love quit the respondent's employ. The acceptance, by striking employees, of employment elsewhere than with the employer against whom the strike is directed does not of itself signify that such striking em- ployees have cut off their relationship with the original employer. Under the circumstances, we find that the strike of May 27, 1937, in breach of the agreement. of April 15, 1937, does not constitute a bar to the reinstatement of the striking employees. Although the strike in which the employees engaged because they thought that the respondent had refused to bargain collectively with them in violation of the Act, was in breach of such agreement, the respondent itself prolonged the strike on June 10 by discriminatorily refusing to re- instate five union members, thereby preventing the striking em- ployees from returning to work under the agreement; and further prolonged the strike by discriminatorily discharging many of the striking employees on July 3 and 9. Moreover, as already indicated, the respondent made no claim at the hearing in the present case, that it had denied reinstatement to or terminated the employment of any of the striking employees because of the claimed breach of contract. Under the circumstances, we do not find that the conduct of the employees in striking in breach of the agreement was such as to make the remedy of reinstatement inappropriate. 62 National Labor Relations Board v. Stackpole Carbon Co., 105 F. ( 2d) 167 (C. C. A. 3) enf'g Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. It. B. 171; National Labor Relations Board v. Arthur J. Colton and Abe J. Colman, Co-Partners doing business as Kiddie Kover Manufacturing Company, 105 F. (2d) 170 (C. C. A, 6) enf'g Matter of Arthur L . Colton and A. J. Cole- man, Co-partners, doing business as Kiddie Kover Manufacturing Company and Amalga- mated Clothing Workers of America, 6 N. L. R. B. 355. Matter of Electric Boat Company and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 6, 7 N. L. R. B. 572 ; Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. It. B. 219. LONE STAR GAS COMPANY 465 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Gas Fitters Auxiliary to Local 146, United Association of Journeymen Plumbers and Steamfitters of the United States and Canada, and Local 859, International Hod Carriers , Building and Common Laborers' Union of America, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to hire and tenure of employment and terms and conditions of employment thereby discouraging mem- bership in labor organizations , the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in and is not engaging in unfair labor practices within the meaning of the Act in so far as concerns the payment of the bonus to those employees who continued work between April 12 and 16, 1937 , the purchase of tools formerly made by its employees , and the changes in the job classification of its employees ; has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act by discharging on April 1, 1937, C. A. Worley, A. B. Angle, D. C. Gargis, H. R. Williams, J. A. Farris, Charles M. Haggard , John F. Wright, Joe Welch, Harry Caldwell, S. M. Barron, L. R. Dobbs, L. W. Wilson, W. G. Huff, E. H. Hudson, D. L. Taylor, and R . M. West, by transferring M. L. Perrin on such date to the respondent's pipe-line division in Gaines- ville, by discharging on July 1, 1937, Virgil Pryor, J. F. Meggs, Fred Smith, and L. W. Hoffman , and by refusing to employ W. G. Huff on August 14, 1937 ; and has not engaged in and is not engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , Lone Star Gas Company, and its officers , agents, suc- cessors, and assigns, shall: 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in the Gas Fitters Auxiliary to Local 146, United Association of Journeymen Plumbers and Steam- fitters, of the United States and Canada , and Local 859, International Hod Carriers, Building and Common Laborers' Union of America, or any other labor organization of its employees , by discharging or refusing to reinstate employees, or otherwise discriminating in regard to hire or tenure of employment or any term or condition of employ- ment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to all employees listed in Appendix A, annexed hereto, and, upon application, to all employees listed in Appendix B, annexed hereto , immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges in the manner set forth in the section entitled "The Remedy " above; and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (b) Make whole the employees listed in Appendix A for any loss of pay they may have suffered by reason of the respondent's dis- crimination, by paying to each of them a sum equal to that which he would normally have earned as wages from June 10 or July 3, 1937, as the case may be, the dates of the respondent 's discrimina- tion, to February 8, 1938, the date of the Intermediate Report, and from the date of this Order to date of such offer of reinstatement, and in addition , by paying to each of such striking employees who applied for reinstatement, pursuant to the Intermediate Report, a sum equal to the amount which he would have earned as wages from the date of his application for reinstatement to the date of this Decision ; less his net earnings , if any, during said periods ; deduct- ing, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal , State, county, municipal, or other relief projects , and paying over the amount so deducted to the appro- priate fiscal agency of the Federal, State, county , municipal , or other LONE STAR. GAS COMPANY 467 government or governments which supplied the work for said work- relief projects; (c) Make whole the employees listed in Appendix B for any losses they may suffer by reason of any refusal of reinstatement re- quired by paragraph 2 (a) above by paying to each of them a sum equal to that which he would normally have earned as wages during the period from five (5) days after the date of application to the date of offer of reinstatement, less his net earnings, if any, during said period, deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, munici- pal, or other relief projects, and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the work for said work-relief projects; (d) Place those employees whose right to preference for employ- ment the respondent terminated on July 9, 1937, except A. B. Angle, on a preferential list and offer employment to them in their former or substantially equivalent positions, in the order of their seniority upon the list, as such employment becomes available and before hiring other persons; provided, however, that the persons placed on this list shall not be offered employment in their former or substantially equivalent positions, when such are available to be filled, until • all striking employees ordered to be offered reinstatement pursuant to paragraph 2 (a) of this Order, who on May 26, 1937, occupied such positions or substantially equivalent positions, have been offered reinstatement in the manner provided in the Section entitled "The Remedy" above ; (e) Post immediately notices to its employees in conspicuous places throughout the shop and warehouse of its Fort Worth Division, stating that the respondent will cease and desist in the manner set forth in 1 (a) and (b), that it will take the affirmative action set forth in 2 (a), (b), (c), and (d) of this Order, that the respondent's employees are free to become or remain members of the Gas Fitters Auxiliary & Local 146, United Association of Journeymen Plumbers and Steamfitters of the United States and Canada, and Local 859, International Hod Carriers, Building and Common Laborers' Union of America, and that the respondent will not discriminate against any employee because of membership or activity in such organizations; (f) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (g) Notify the Regional Director of the Sixteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS FURTHER ORDERED that the allegations of the complaint be, and they hereby are, dismissed in so far as they relate to the payment of the bonus to those employees who continued work between April 12 and 16, 1937, the purchase of tools formerly made by its employees, and the changes in the job classifications of its employees; that the allegations of the complaint stating that the respondent on April 1, 1937, discriminatorily discharged C. A. Worley, A. B. Angle, D. C. Gargis, H. R. Williams, J. A. Farris, Charles M. Haggard, John F. Wright, Joe Welch, Harry Caldwell, S. M. Barron, L. R. Dobbs, L. W. Wilson, W. G. Huff, E. H. Hudson, D. L. Taylor, and R. M. West, and discriminatorily demoted M. L. Perrin, on July 1, 1937, discrim- inatorily discharged Virgil Pryor, J. F. Meggs, Fred Smith, and L. W. Hoffman, within the meaning of Section 8 (3) of the Act be, and they hereby are, dismissed; and further, that the allegations of the com- plaint be, and they hereby are dismissed in so far as they relate to unfair labor practices within the meaning of Section 8 (5) of the Act. APPENDIX "A" S. M. Alston, Jr. E. B. Green C. A. Parks H. V. Anderson T. D. Hamm E. Paul J. O. Bamber R. M. Jarrell J. W. Plunkett Leo P. Bamber A. M. Johnson L. Z. Pruitt G. W. Brooks Sherman Lancaster Henry Ray Roy Brooks Archie Love Phillip Renick R. C. Brymer Clifford Love H. E. Richards D. O. Burch Steve Lowery B. W. Scott J. A. Carpenter C. C. Martin C. H. Sharp L. R. Clayton S. E. Mays Calvin Strange, C. E. Cornett F. D. McCarty K. H. Sylvester R. H. Daugherty T. O. McCulloh W. T. Vawter O. C. Duffield J. A. McMahon E. J. Wadley E. L. Dunagan J. D. McMahon T. L. Westmoreland Geo. R. Faris E. L. Medford E. T. Williamson J. W. Fletcher W. W. Ogden R. W. Glass - W. 0. Parnell APPENDIX "B" I. M. Arterburn E. Harter Barney Robinson Ronald Canady L. R. McDaniels H. W. Wilkinson W. T. Carroll J. K. Pittman &dell Chandler M. L. Perrin LONE STAR GAS COMPANY APPENDIX "C" 469 B. F. Akin E. Hudson G. E. Tyson S. M. Barron W. G. Huff J. D. Welch Freddie Burroughs E. Hunter R. M. West H. Caldwell O. K. Majors H. R. Williams L. R. Dobbs N. T. Mason L. W. Wilson J. A. Farris A. D. McKinney C. A. Worley D. C. Gargis James Robinson J. F. Wright C. M. Haggard L. Sanders W. G. Haralson D. L. Taylor Mx. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.