The Ohio Calcium Co.

In the Matter of THE OHIO CALCIUM COMPANY and UNITED BRICK CLAY WORKERS OF AMERICA, LOCAL 669, A. F. OF L. Case No. C-1474-Decided August 26, 1941 Jurisdiction : limestone mining and processing industry. Unfair Labor Practices Interference, Restraint, and Coercion: discriminatory shut down of plant; 5 discriminatory lay offs for 1 or 2 days ; attempts to form intramural union ; anti-union statements ; threats to shut down plant indefinitely ; threats to lay off union members; expressed determination never again to operate under the union. Discrimination: refusal to reinstate 40 strikers upon application after conclu- sion of second strike not caused by unfair labor practices ; existing employ- ment vacancies discriminatorily filled with new employees; refusal of employer to explain its refusal to reinstate strikers ; alleged misconduct of some strikers during strike held not to constitute employer's reason therefor ; charges of as to 8 employees dismissed, where they were lawfully discharged for insubor- dination by refusing to work upon employer's refusal of their demand for an increased crew, and where their refusal to work was not authorized by union, which was their statutory representative operating under an exclusive recog- nition contract with employer. Collective Bargaining: majority representation established among total of strikers and non-strikers ; four strikers who had not joined or applied for membership in union designated union by voluntary participation strike and were subsequently represented by union-refusal of employer to meet and negotiate with union representative regarding reinstatement of strikers upon application, although employment vacancies existed ; charges of, dismissed as to earlier alleged refusal to bargain in regard to 8 discharged employees. Remedial Orders : reinstatement of and back pay to strikers; reinstatement, if necessary by displacement of all persons hired since their refusal of reinstate- ment upon application ; strikers for whom jobs not immediately available to be placed on preferential list; alleged misconduct of some strikers, for which no arrests or convictions were secured, does not warrant denial of reinstatement, particularly -in view of employer's conduct ; back pay from date of refusal of reinstatement ; employer ordered to bargain with union and to cease and desist its unfair labor practices. Practice and Procedure : settlement agreement given effect: conduct imme- diately preceding and during first strike which was terminated by settlement agreement, not considered as unfair labor practices in order to effectuate policies of the Act ; effect of settlement not negatived by subsequent unfair labor practices where employer essentially complied with settlement for some time, and subsequent unfair labor practices were consequent upon a new series of events, namely, a second strike not caused by unfair labor practices. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees both at mine and kilns, exclusive of superintendents, foremen, and office workers ; stipulation as to. 34 N. L., R. B., No. 111. 917 451269-42-vol. 34-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Mary Telker Iliff and Mr. W. J. Perricelli, for the Board. Mr. A. J. Layne, of Ironton, Ohio, Mr. Robert T. Caldwell and Mr. Porter M. Gray, of Ashland, Ky., for the respondent. Mr. Charles S. Stinson, of Haldeman, Ky., for the Union. Miss Edna Loeb, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Brick & Clay Workers of America, Local 669, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint, dated July 6, 1939, against The Ohio Calcium Company, Lawrence Station, Lawrence County, Ohio, herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices 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 and accompanying notice of hearing thereon were duly served upon the respondent and the Union. The complaint alleged in substance (1) that the respondent on or about May 22, 1938, discharged eight of its employees 1 for joining and assisting the Union and engaging in concerted activities for the purposes of collective bargaining; (2) that on and before May 22, 1938, the Union had been designated by a majority of the respondent's employees in an appropriate bargaining unit as their representative for the purposes of collective bargaining and at all times since that date has been the exclusive representative of such employees; (3) that on May 22, 1938, and at all times thereafter, the respondent refused to bargain with the Union as the exclusive representative of its employees in such unit; (4) that on numerous occasions since July, 5, 1935, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in the Act by attempt- ing to persuade employees to drop their membership in the Union, by discriminating against them in regard to their working conditions, by failing to abide by the terms of a strike-settlement agreement made with the Union on April 26, 1938, and by divers other means; 1 Martie Banks, Delbert Sizemore, Clair Justice, John Calhoun , Lester Doughty, James Besco, Isaac Sanders, and John Loper THE OHIO CALCIUM COMPANY 919 (5) that as a result of the unfair labor practices described above, 48 named employees of the respondent, including the 8 discharged employees, went out on strike on or about May 24, 1938, which strike was terminated on or about June 1 or 2, 1938; 2 and (6) that on or about June 1 or 2, 1938, and at all times thereafter, the respondent refused to reinstate the striking employees for the reason that they joined and assisted the Union and engaged in concerted activities for the purposes of collective bargaining. The respondent filed an answer, dated July 22, 1939, admitting certain matters alleged in the complaint, denying that it had engaged in any unfair labor practices, and setting forth certain affirmative matters by way of defense, including allegations that the striking em- ployees had engaged in acts of misconduct and violence during and after the strike. Pursuant to notice, a hearing was held at Ironton, Ohio, from July 31 to August 4 and from August 14 to 25, 1939, before William M. Hepburn, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. A union representative en- tered an appearance on behalf of the Union. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing upon the issues was afforded all parties. During and at.the close of the presentation of the Board's case, the respondent made motions to strike certain testimony from the record and to dis- miss the complaint as to individual striking employees. The Trial Examiner denied the motions. The respondent renewed these mo- tions at, the close of the hearing, at which time the Trial Examiner reserved ruling thereon. A motion by counsel for the Board to amend the complaint to conform to the proof was granted by the Trial Ex-. aminer. The Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudcial errors were committed. The rulings are hereby affirmed. After the close of the hearing, the respondent and counsel for the Board filed briefs with the Trial Examiner pursuant to his request. Thereafter the Trial Examiner filed his Intermediate Report, dated January 18, 1940, copies of which were, duly served upon all parties. He found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom. He found further that the respondent had not 2 This date appears as June 7 in the second amended charge, the complaint, and the respondent's answer. Motions to amend to state the date as above were granted at the bearing. 920' DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in the other unfair labor practices alleged in the complaint but recommended that the respondent prepare and post a preferential list of the striking employees and offer them reinstatement to their former or substantially equivalent positions as such employment be- came available, before other persons were hired for such work. With respect to the respondent's motions upon which ruling was reserved at the hearing, the Trial Examiner granted certain of the motions to dismiss, subject to his findings and conclusions in the Intermediate Report, but overruled all the other motions. Exceptions to, the Intermediate Report and supporting briefs were filed by the Union and, the respondent. Oral argument before the Board was not requested. The Board has considered the exceptions and briefs of the respondent and the Union and, in so far as the excep- tions are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FAOT 1. THE BUSINESS OF THE RESPONDENT The Ohio Calcium Company is an Ohio corporation with its prin- cipal office and place of business at Lawrence Station, Lawrence County, Ohio. It owns and operates a mine and plant, known as the Pedro Operations, at Lawrence Station. The respondent employs ap- proximately 50 production and maintenance employees at the Pedro Operations, and is there engaged in the mining and sale of limestone, and in the manufacture, sale, and distribution of a product known as Calsifer, manufactured by burning raw limestone in kilns. During the period from July 1, 1938, to July 1, 1939, the respondent manu- factured approximately 7,200 tons of Calsifer, 90 per cent of which was shipped to purchasers outside Ohio. During the same period, the respondent mined and sold approximately 1,000 tons of raw lime- stone, all of which was shipped to points outside Ohio. The respondent admits that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED United Brick & Clay Workers of America is a labor organization affiliated with the American Federation of Labor, herein called the A. F. of L. Local 669 is a labor organization chartered by United Brick & Clay Workers of America, admitting to its membership the production and maintenance employees of the respondent, -TIDE OHIO CALCIUM COMPANY 021 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The shut-down and lay-offs of February 7 and 8, 1938 No labor organization existed among the respondent's employees prior to February 1938. On February 7, 1938, 13 kiln employees se- cured a conference with Carter M. Abel, Sr., president, treasurer, and general manager of the respondent, complained to him that they were being overworked and that some employees were "making more time" than they were, and requested an adjustment of kiln conditions. Abel stated that he would investigate the matter. That night Ray Aubin, an assistant organizer for the A. F. of L., went to the kilns to talk with employees on the night shift. Perry Bailey, assistant superintendent of the respondent's mine and kilns, who had the power to hire and discharge employees, learned who Aubin was from Elroy Dinnen, an employee, and ordered the or- ganizer off the premises, stating that he could not "do business" there. Aubin left the kilns and on the same night secured applications for membership in the Union from 13 kiln employees.3 About 11 p. m. Bailey telephoned Abel at his home in Ironton, Ohio,4 and said : "Mr. Abel, these boys out here are organizing a union. They are just raising hell out here. Mr. Aubin is on the property and Wink [Elroy] Dinnen was drunk." Abel testified, "I don't know, I think he said Wink Dinnen said the plant was going to be closed down the next morning at 6 o'clock." Abel directed that Bailey cease firing the kilns. He testified that he also instructed Bailey, "Don't you do anything to stop the organization of that union." Whether or not he gave such instructions is immaterial in view of the hostility of Abel and supervisory employees toward the Union, described below, and especially in view of the following un- denied statements made to employees by Bailey that night. Bailey asked Dan'l Cameron, an employee, if he was going to join the Union, and when the latter replied in the affirmative, Bailey warned him, "We just as well all look for another job, for Mr. Abel will not have any union. He always said he would not, and he won't." When employees of the midnight shift started to go to work, Bailey stopped them and told them that Abel was coming out to shut down the kilns, that he would not operate under a labor organization. Abel arrived at the plant about 12: 30 a. m., and although he admittedly did not see Dinnen, Aubin, or any disturbance which 3 Joe Ackison, Perry Aldridge, Ernest Bailey, Harry Bare, Dan'1 Cameron, Herschel Cade, Elroy Dinnen , John H Ervin, Stanley Kelley , Frederick [ Fred] Martin, John McCorkle, Lawrence Young, and Edwin Sizemore. 4 Ironton is approximately 11 or 12 miles south of Lawrence Station. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bailey had allegedly described by telephone, Abel ordered the men to "draw" the contents of the kilns and to let the fires go out, dis- continuing further manufacturing processes until 6 p. in. the fol- lowing day. Abel testified that the lime burned in the kilns to make Calsifer is perishable and that he shut down this portion ' of the 'operations in order to prevent a loss in the event a strike was called the following day. According to Abel's further testimony, it was also costly to allow the kilns to cool because of the expense of re- heating them. The only reason advanced by Abel at the hearing for shutting down was his testimony above that he thought that Bailey had told him over the telephone that an inebriated employee had threatened a strike. Dinnen was not a witness at the hearing, and Bailey, although a witness, did not testify concerning this alleged threat. In view of the coercive statements made to the employees Ly Bailey on the night of the shut-down, the vagueness of Abel's testimony, the failure of Bailey to corroborate it, the other circum- stances set forth above, and Abel's subsequent conduct, described be- low, including his attempt on February 9 to instigate and sponsor an intramural union, we do not credit Abel's explanation and find that he ordered the shut-down for the purpose of defeating at the outset the first efforts of the employees to form a union of their own choosing. The respondent recommenced operations at 6 p. in. on February 8 but without explanation released five employees who had applied for union membership the night before Dinnen, Fred Martin, Harry Bare, John H. Ervin, and John McCorkle.5 At 4 p. in. that day Chester Bridges, who was general foreman at the kilns with power to discharge employees, told Ervin that he and the other four men were "fired." At about 9 p. in. that night, Organizer Aubin visited the re- spondent's office and inquired about the discharges. Abel and Bailey told Aubin that the men were merely being transferred to other shifts "for reasons of our own" and "would probably be on the next day." Carter M. Abel, Jr., Abel's son and vice president of the respondent, testified that Abel told Aubin that the respondent was trying to eliminate "drunkenness and some disorderly conduct at the kilns," and testified further that Aubin replied that that was "satisfactory." Abel testified that there had been some drinking and poor work among the employees; that he therefore conceived the idea of "sandwiching" certain drinkers in with men who did not drink, in an attempt to improve the standard of work ; that the lay- offs were merely shift changes to effectuate this plan; and that he did 5 Although there is some testimony that there were only four lay-offs on this date, from all the evidence we find that there were five. THE OHIO CALCIUM COMPANY 923 not think the five men lost any time thereby. Abel was unable to indicate to what extent, if any, the shifts were actually rearranged, and from the testimony of Martin, Ervin, and Cameron, it appears, and we find, that the five men lost at least 1 day's work. Foreman Bridges was unaware of any proposed rearrangement of shifts and, as noted above, told Ervin that he and the other four men had been "fired." The Trial Examiner, who had the opportunity of observing the demeanor of the witnesses on the stand, found Abel's explanation of the lay-offs inadequate. Upon the entire record, we do not credit Abel's explanation. The respondent's motive for the lay-offs and the shut-down is revealed by certain statements made by Abel on March 21, 1938, in the presence of Wallace Miller, a Field Examiner for the Board, and a union committee composed of Cameron, Ervin, Winfield Claxon, and Carl Shope, employees of the respondent. According to the four employees, Abel stated in substance that when the Union began to organize, he shut down the plant and went to Ashland, Kentucky, to the plant of the respondent's chief customer, the American Roll- ing Mill Company, herein called Armco,e to inquire how to handle the union problem; and that Armco officials told him that Armco had effectively combatted union organization by splitting the union members into different shifts, and advised him to try this method to "break up" the Union. At the hearing Abel admitted that he had visited Armco on February 8 during the shut-down of the plant, and that on March 21 he had made reference to this trip. He as- serted, however, that his reference was misconstrued. He testified that on February 8 he expected something serious to happen because of the "confusion" among the employees and their wives, that he made his trip to Ashland solely to warn Armco to secure lime else- where as a protective measure in the event of a strike,7 and that his statements in March had so indicated. We have already found in- credible Abel's claim that on February 8 he thought a strike was imminent. The Trial Examiner found that Abel made statements understood to mean that he had sought advice of Armco concerning labor problems. We concur in this finding and find further that Abel made the above-mentioned statements regarding Armco which were attributed to him. Whether or not Armco actually gave Abel the alleged advice, Abel's statements in this regard clearly indicate the motives which prompted him to shut down the plant and "fire" five union members. We find that the respondent suspended the em- ployment of the five employees, because of their union membership and activities. 8 The Armco plant is about 16 miles from the respondent 's plant. 7 Abel could not explain why he had not communicated his alleged forebodings by telephone rather than in person. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Abel's sponsorship of an intramural organization; other coercive statements and conduct On or about February 9 Abel summoned all the employees to a meet- ing in the office yard during kiln working hours, and made a speech to them in which he referred to the Union or the union organizer as being communistic. He asked the mine employees, the kiln employees, and the truck drivers, respectively, to select committees of two or three to represent them in dealing with the respondent, to discuss working conditions, and to "see if [they] couldn't get together and have a little peace any way." He "tried to impress upon" them that they "must appoint men who could see both sides of the question, if trouble arose." Abel suggested that the employees take time off during working hours to elect the representatives. He also apologized for having to meet with the workers in the open air and talked of building them a club house where they and their friends could "meet and have a good time." Abel testified that the respondent had for some time contemplated making lay-offs and wage cuts among its employees because of a decline in business, and that he desired to explain the respondent's financial predicament to the employees through their committees. He admitted that he had never before called such a general meeting or requested the formation of committees to discuss lay-offs, although he had laid off employees in the past. His explanation for taking this un- precedented action was as follows : "... my reason for doing this in this particular instance, I will be perfectly frank to say, was by reason of the agitation out at the kilns, and the fact that they were organizing the union. I don't deny a minute that I did not call men together except for the rea- son that there was a lot of agitation around there, and we did not want to have any disturbance, but what we wanted to do was to talk to everybody and did not want to go and make this lay-off and be accused of doing it on account of union activities of these men at the kilns. That is our reason for calling that meeting.,, The Trial Examiner found that by his speech Abel espoused the for- mation of an unaffiliated organization to supplant the Union, and the respondent took no exception to this finding. Abel's speech was so interpreted by employees, and upon all the evidence we agree with the Trial Examiner. Apparently only the mine employees complied with the respond- ent's request for the formation of committees. On or about February 11 at the noon hour, they elected Claxon and John T. Ervin, Sr., as their committeemen. On the following day Abel, Jr., camp to Claxon's s On February 15 the respondent in fact made some lay-offs, aliscnssed below THE OHIO CALCIUM COMPANY 925 home and told him that Abel wanted to see him.9 Claxon called on Abel and during the ensuing conversation Abel told him that John H. Ervin had enlisted the services of W. H. Whetro, an A. P. of L. or- ganizer, to establish the Union, and that Whetro was "nothing but a yellow trouble maker." The mine committee did not function further.'° The record discloses that around this time and later in February, Abel and other officials and supervisory employees of the respondent questioned and threatened employees regarding the Union and made further coercive statements in opposition to that organization. Thus, Abel asked Cameron on or about February 9 whether he had joined the Union. Cameron answered that he had. Abel thereupon showed him a newspaper article regarding an agreement made be- tween another company and its employees, stated in substance that "it was no good, the boys did not make nothing by joining a Union," and warned that if the employees proceeded with the Union, he would shut down the kilns and lay them off for a year. Roy Abel, Abel's brother and. the respondent' s general superin- tendent, approached McCorkle, an employee, around the same time on company property, and asked him "what the boys intended to do about the Union . . . if they meant to go ahead with it." Mc- Corkle replied that he "guessed they did," and Roy Abel inquired whether McCorkle ,knew that the Union "had to have fifty-one per cent of the total employees." The 'latter answered that he did not know this but that if the Union needed them it would get them. Assistant Superintendent Bailey during this period asked Lester Doughty, a mine employee, "Don't you know Mr. Abel 'always said he would not operate under organized labor?" After Doughty and other mine employees had joined the Union on February 14, Bailey said to him, "Don't you know what I told you about Mr. Abel not working under organized labor? I am awfully afraid you boys have -hurt yourselves." Bailey asked Roy Justice, a mine employee and his brother-in-law, not to sign up with the Union, and said that if 9 Abel testified that he did not send for Claxon but that he anticipated Claxon's visit as a committeeman Abel, Jr., did not deny that he summoned Claxon, however, and we find from Claxon's testimony that he did so 10 According to Abel 's testimony, a mine employee named Depriest came to the office on or about February 10; Abel asked him where the rest of the committee was ; and the employee replied that he did not believe that they were coming, that the kiln men had a union and would not meet with Abel . Abel testified further, ". . . I said, 'I don't care if you belong to the union , go ahead and join it if you wish , it is immaterial to me.'" Abel did not indicate whether he was referring to Dewey Depriest or Frank Depriest, both of whom were then employed at the respondent's mine. Only Dewey Depriest was a witness at the hearing, and he made no reference to the above matters. Whether or not Abel made this statement , the record demonstrates that Abel was not indifferent, but %N as hostile, to union organization and that he manifested this hostility to the employees. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would refrain from doing so, Abel would retain him and the mine employees but would "do away with the kilns." General Foreman Bridges approached Perry Aldridge, a kiln em- ployee, on or about February 9 during working hours, and asked him whether he was going to adhere to the Union or to the respond- ent. Aldridge replied that he was going to remain in the Union, and Bridges warned, "Well, Mot, I am afraid you have lost your job." Bridges also conversed with Cameron regarding the Union at the kilns during working hours, and told him that the employees "had better get together and drop this Union or [they] were all going to lose [their] jobs." John Ferguson, night foreman at the mine, asked the mine em- ployees on the night shift if they were going to join the Union. They replied that they did not know. Roy Kelley, a mine employee, testified without contradiction that Ferguson "kept telling me Mr. Abel kept telling him to tell his boys [the mine employees] not to sign the Union . . . [that Abel] would take care of us." Fer- guson approached Kelley and James Anderson, another mine em- ployee, and said, "Mr. Abel says for you to play fair with him and he would play fair with you." Because of these statements, Kelley hesitated to join the Union. As noted in further detail below, on February 20, 1938, the Union called a strike at the respondent's plant and on April 27, 1938, the respondent and the Union agreed to a settlement of the strike. Upon the entire record, we are of the opinion and find that the said settle- ment was intended to cover the events immediately preceding and during the strike but that the occurrences set forth in the two sub- sections above did not fall within the purview of settlement. Con- sequently, the question of the effect to be given to the settlement does not enter into or influence our consideration of the above-discussed conduct of the respondent. We find that the respondent-through the shut-down and discrimi- natory lay-offs of February 7 and 8, 1938, the effort to form an intramural organization, and the above-mentioned statements and conduct of Abel, Roy Abel, Perry Bailey, Bridges, and Ferguson- interfered with, restrained, and coerced its employees in the exer- cise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. THE OHIO CALCIUM COMPANY 927 3. The events immediately preceding the strike of February 20, 1938, the strike, the settlement, and the effects thereof a. Sequence of events On February 15 the respondent laid off 5 kiln employees," all of whom were union "members, and 13 mine employees,12 9 of whom were union members, allegedly because of reduced business operations. Abel testified that the respondent had suffered a severe slump in business starting in the last quarter of 1937; that he had discussed lay-offs with his supervisory staff as early as December 1937; that on or before January 1, 1938, and on January 15 he had instructed Bailey to lay off employees; but that Bailey had hesitated to carry out these orders, apparently in a sympathetic effort to retain the workers as long as possible. Although the respondent's financial con- dition had allegedly been acute for months, and the respondent was allegedly failing to make expenses in its manufacturing operations as early as January 15, it made no lay-offs until shortly after the organization of the Union. With regard to the respondent's method of selection of workers to be laid off, Abel testified that in choosing the employees to be re- tained at the mine, he considered seniority and adaptability to per- form various types of mine work, and that the men laid off were principally stone loaders unqualified to perform other mine work. The respondent did not introduce any specific evidence regarding the contrasting qualifications of the employees retained and laid off.13 Of 13 mine employees laid off, at least 9 had joined the Union the preceding day; 14 of the 15 workers retained in the mine,' only 1 was at that time a union member. With regard to the kilns, the lay-off notice stated that the employees retained were being selected "on a basis of seniority and adaptability to the work in hand," but, Abel testified that he had directed his secre- tary to make a list of such employees strictly in accordance with seniority, and that he did not even check the list. Twelve employees were retained in the kilns, 8 of whom were union members with more 11 Perry Aldridge, Joe Ackison, Stanley Kelley, Edwin Sizemore , and Harry Bare. 12 George Blagg, Jr., Delbert Sizemore, John Brannigan, Jr., Charles Ervin , Charles Cade, Floyd Adkins, Dewey Depriest, Fred Vickers, Frank Depriest, Walter Bloomfield, Clair Justice, James Besco, and John T. Ervin, Sr. is With respect to one unidentified mine employee Abel claimed that he was laid off for inefficiency. It does not appear , however, that any employee was notified that he was being laid off for reasons other than slack production Moreover, all the employees laid off were included upon a list, which the respondent prepared and put into effect in May 1938 , of employees with seniority rights and consequent employment preference. 14 George Blagg, Jr., Delbert Sizemore, John Brannigan, Jr., Charles Ervin, Charles Cade, Floyd Adkins, Dewey Depriest, Fred Vickers , and Frank Depriest, 15 Excluding Foreman Ferguson. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority than all other kiln workers,16 and 4 of whom were non-union men.17 All five of the kiln employees laid off were union members who had signed up on February 7, the night of the shut-down, and one of the five was among those employees discriminatorily suspended from work on February 8.18 Stanley Kelley, who was at the time of the lay-off, or who became within a few days thereafter, the Union's financial secretary, was laid off although he had greater seniority than three of the non-union men retained. Joe Ackison, another union member laid off, had been hired before two of the said non-union workers, although according to the seniority list subsequently formu- lated, he had less seniority than they. Everett Tracy was one of the non-union members retained at the kilns. The significance which Abel attached to Tracy's non-union status is shown by Abel's statement in the course of a conversation with Roy Justice, a mine employee during the strike of February 20 to April 27, 1938, described below. Abel referred to Tracy, asked Justice, "Why don't you stand on your own feet like a man and be like this fellow [Tracy] is. He is not going to sign up; he will have work whether anyone else does or not"; and stated that he had orders for both Calsifer and raw lime, that he would drop his Calsifer orders and lay off the kiln employees if they proceeded to organize, but that he would retain the mine workers if they did not affiliate with the Union. On February 8, 1938, according to Abel, he asked A. F. of L. Organ- izer Aubin whether the Union represented a majority of the employees, and upon receiving a reply in the negative, stated that the respondent would be glad to deal with him when the Union had been designated by such a majority. As found by the Trial Examiner, on or before February 17, 1938, the Union was the duly designated bargaining representative of a majority of the respondent's employees. On February 18, A. F. of L. Organizer Whetro telephoned Abel and told him that the Union represented a majority of the respondent's employees. Abel replied that' he hoped they could "get together" and have "a good workable union that is of benefit to the men and the company." Whetro asked whether he would object to signing a contract with the Union. Abel replied that he did not know much about unions or contracts, that he would have to think about it, but that he did not think it necessary to sign an agreement. On February 20, pursuant to prior arrangement, Whetro came to Abel's office for a bargaining conference, accompanied by a committee 11 Frederick Martin, John H. Ervin , Ernest Bailey, John McCorkle , Dan'I Cameron, Elroy Dinnen , Lawrence Young, and Herschel Cade. 17 Everett Tracy, Freer Goodwin , Brooks Goodwin , and Willard Carmoii. 78 Harry Pare, THE OHIO CALCIUM COMPANY 929 of about seven employees. Abel curtly refused to allow the committee to enter and insisted on meeting with Whetro alone, allegedly to dis- cuss confidential matters regarding the respondent's financial affairs. According to Abel's testimony, Whetro in the presence of the com- mittee asked Abel whether he would sign a contract, and Abel re- plied that he did not feel that he could at that time. Whetro re- peated,- "I want to know, and I want to know right now, whether you are going to sign a contract." Abel answered, "Hell no." Abel and Whetro then conferred privately for about 21/2 hours. Although Abel did not question the Union's claim of majority repre- sentation, he did not examine the proposed contract which Whetro submitted to him. According to Whetro's testimony, when he told Abel that he wanted to talk about a contract, the latter stated, "I'11 not do any business with a labor union. I feel like the men can organize a union here among themselves without any outside inter- ference," and asserted emphatically that he would not sign a con- tract. Whetro testified further that Abel repeated that he would not sign a contract with any labor union, and that Whetro then stated that he feared that the men were going to strike if Abel would not "at least negotiate some kind of it contract." While denying that he expressed opposition to the Union and asserting that the con- ference was amicable, Abel admitted that from the beginning he was "reluctant" to enter into a written agreement; that on February 20 he characterized Whetro's proposed contract as "a dollar, down and dollar a week proposition," without having examined it; and that he refused to sign any such contract at that time, stating "that it was something that would have to be gone into when [they] had more time." When questioned at the hearing as to whether he refused in general terms to sign any kind of contract at that time, Abel did not reply directly but stated that he argued with Whetro regard- ing the necessity for a written contract and told him that the respond- ent "would bargain with him and be glad to do anything," but that Abel "wanted a little time to- think it over." The Trial Examiner did not make detailed findings of fact regarding the course of the above conference but found only that the respondent refused to sign the Union's proposed contract and that Whetro and Abel "came to no agreement." Upon the conclusion of the conference Whetro assembled a number of union members and told them of Abel's refusal. The Union there- upon called a strike which lasted from February 20 to April 27, 1938. The respondent made no effort to operate the kilns or mine during the strike. During the strike the respondent made the following statements to its employees. Abel interrogated Claxon, an employee, concern- ing his financial condition and upon learning that it was unsatisfac- 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory, offered to send him away for special mechanical schooling and experience at other plants so that he could care for the mine ma- chinery, if he would "play ball" with Abel ; and Abel told him "what a good fellow" he was. During this period, Assistant Superintendent Bailey told Roy Justice that Abel wanted to talk to him before he joined the Union. Although he had already become a union member, Justice called on Abel and asked what the latter wanted to see him about. Abel replied that he "didn't know that he wanted to see" Justice. When the latter referred to Bailey's instructions, Abel sug- gested that they "just talk a little bit about the trouble we are having." Then, as already noted above, he asked Justice why he did not fol- low the manly example of Tracy, who had insured his job by not affiliating with the Union, and threatened to cancel orders and lay off employees if union activities were continued. Abel testified gen- erally that Justice came to his home during the strike and said that he did not "know what to do about joining this union"; and testified further that he advised Justice that whatever he did was "all right" and would not "be held against" him. Abel recounted a like con- versation with Roy Kelley, and indicated that these were the only conversations with strikers which he could recall. After the start of the strike, Charles S. Stinson, an A. F. of L. organizer, was placed in charge of the Union, and he at once insti- tuted negotiations with the respondent for settlement of the strike. At Whetro's instigation, John L. Connor of the Conciliation Service of the United States Department of Labor participated in these negotiations, and Colonel Edward P. Lawler 19 of the Ohio National Guard acted as an observer therein at the respondent's request. At the outset of the negotiations on February 24 Abel refused to shake hands with Stinson when introduced to him and asked why the A. F. of L. should be involved in the controversy and why Law- ler was conversing with an A. F. of L. representative. On the fol- lowing day Connor met with Abel and presented to him the Union's proposed contract signed by Whetro: Abel refused to execute the agreement on the ground that it was unreasonable, but he agreed to formulate a counterproposal and submit it to the Union through Connor. Abel drafted an alleged counterproposal but instead of submitting it to the Union, posted it about the office and at the store nearby, without prior consultation with the Union.20 This instrument reads as follows : "Also designated Lawlor in the record. Also without prior notification to the Union, on April 21, shortly before the termina- tion of the strike, Abel sent letters to all the employees notifying them that the respondent would soon recommence operations and would recall them to work as rapidly as business permitted. THE OHIO CALCIUM COMPANY NOTICE 931 The Ohio Calcium Company will agree to the following : 1. We are willing to recognize as a bargaining committee the members of Council 669 The Ohio Calcium Company Employees affiliated with the A. F. of L., who have been duly elected as representing over 51 per cent of our employees and discuss with them any matters relative to hours, wages, working conditions, etc. 2. Should the Supreme Court of the United States rule that an employer must enter into a written agreement with his em- ployees we will comply with the law. 3. This will not be considered a Closed Shop, and we reserve the right to engage the services of anyone and to discharge anyone who does not render the proper services. No discrimination will be made against any employee because of this strike or because of their affiliation or non-affiliation with any Union. Any spirit of non-cooperation by either Union or non-Union men in the execution of their duties will not be tolerated and subjects the individuals to immediate dismissal. 4. We will not engage to collect dues from any employee for' the benefit of any organization. 5. Our present prices will permit us to maintain our present rate of wages and wages will not be lowered at this time. (Ex- cept as specified herein. See Article 6.) A wholesale inter- ference with our working conditions and lower prices will, of course, affect the wage rate. 6. The responsibility for closing our plant down after the representative of the Union promised that he. would not shut the plant down without at least a week's notice so that we could dispose of our perishable product, rests with the Union. This has caused the company a great loss and the responsibility rests upon the employees. Therefore, it is fair that each employee, upon- returning to work, will receive 21/2 cents less per hour for his services until the company is reimbursed for its losses. A careful accounting will be kept of all handling charges. 7. As long as an employee conducts himself properly, pays close attention to his duties and assists us to improve the prod- uct, he can be assured that we will endeavor to keep him em- ployed steadily. When it is necessary to reduce our force, sen- iority of employees shall prevail, ability and practibility to be also considered. In case of any dispute relative to seniority, the case will be handled as set out in Section 1.21 R1 Abel testified that in drafting the above notice, he undertook substantially to follow a draft of an agreement made in settlement of a strike at another company, which draft was published in a local newspaper and which Abel understood had been acceptable to 1 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Between February 25 and March 11 two or three settlement con- ferences were held. Abel maintained steadfastly that he would not sign any agreement with the Union. The Union, on the other hand, refused to accept the above notice in settlement of the strike. At a meeting with Stinson and Connor on or about March 10, Abel agreed at first to omit Article 6 in the above statement, which proposed to hold the employees responsible for the respondent's strike losses. Stin- son testified without specific contradiction, however, and we find that Abel changed his position at the conference and stated that there would be no alterations therein. Stinson began to read the Union's proposed contract, which embodied several changes in working con- ditions, and Abel interposed the statement, "If that is the proposition you are presenting to me, there isn't a thing there that I can agree to." Stinson testified without contradiction and we find that Abel stated that if any changes in working conditions were requested, the conference might as well terminate. Stinson asserted that the re- spondent was thereby refusing to bargain collectively and made his departure. On the following day the Union filed with the Regional Director charges alleging that the respondent had engaged in and was engaging 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. Following the filing of charges, settlement negotiations were re- sumed with the assistance of agents of the Board. On March 21 Stinson and a union committee of four employees, Cameron, Shope, John H. Ervin, and Claxon, went to the Board's Regional Office in Cincinnati, Ohio. Stinson testified that this visit was arranged by Wallace Miller, Board Field Examiner, for the purpose of meeting Abel and Board officials "in an attempt to bring about a settlement of the controversy." Abel came to the Regional Office on the same date, conferred with the Regional Director, and at the latter's re- quest, had a short, fruitless conversation with Miller and the union committee.22 Abel refused, however, to meet with Stinson or to permit him to participate in the conference. Abel offered no satis- factory explanation at the hearing for so excluding Stinson but merely testified that he went to Cincinnati at the Regional Director's instance for a personal conference concerning the charges, and that he did not know that Stinson or any employees would also be present. the Board . He testified that his attempt to contact the other company regarding the matter was unsuccessful and that he consequently relied solely upon the newspaper item, which he was unable to produce at the hearing The Trial Examin' r asked Abel to try to locate it through the local newspaper office, but although Abel said that he would endeavor to do so, the item was not introduced into evidence 12Abel asked each employee individually what he had on his mind but the men said little It was in response to a question at this time by Miller regarding the lay-offs of February 8 that Abel told of consulting Armco on February 8 regarding his labor problems , discussed supra. THE OHIO CALCIUM COMPANY 933 Neither Miller nor the Regional Director was a witness at the hearing. Shortly before April 26 Abel was assured by Miller that if the respondent made certain alterations in the original notice posted in February, Miller would see that the Union "settled" on that basis. Abel agreed to the suggested changes, and on April 26 he addressed the following letter to the Regional Director embodying the revised notice : The following terms of settlement have been arranged between Mr. C. S. Stinson, representing the United Brick and Clay Workers of America and myself, representing the company : NOTICE The Ohio Calcium Company will agree to the following : 1. We recognize Council 669 United Brick and Clay Workers of America affiliated with the A. F. of L. as the representative of our, employees for the purpose of collective bargaining in respect to rate of pay, wages, hours of employment or other conditions of employment. 2. We reserve the right to engage the services of anyone regardless of their affiliation or non-affiliation with the Union and to discharge anyone who does not render the proper services. No discrimination will be made against any employee be- cause of this strike or because of their affiliation or non- affiliation with any Union. Any spirit of non-cooperation by either Union or non-Union men in the execution of their duties will not be tolerated and subjects the individuals to immediate dismissal. ' 3. We will not engage to collect dues from any employee for the benefit of any organization. 4. The wage scale shall be on a 43 cents per hour minimum basis for production men both at and around the kilns and at the mines. If the company receives increased prices for its product, there shall ^e a proportionate increase in the em- ployee's wages. 5. As long as an employee conducts himself properly, pays close attention to his duties and assists us to improve the prod- uct, he can be assured that we will endeavor to keep him em- ployed steadily. When it is necessary to reduce our force, seniority of employees shall prevail, ability and practicability to be also considered. In case of any dispute relative to seni- ority, the case will be handled as set out in Section 1. 451269-42-vol 34-60 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have agreed to reinstate all employees who had employee status immediately, prior to the labor dispute. These men will be reabsorbed as rapidly as business warrants. On April 27 the Union approved the said notice, terminated the strike, and withdrew its charges of unfair labor practices. Although Abel knew that the Union desired a written contract, he testified that the Union did not request that the agreed terms of the settlement be embodied in a bilateral contract, and testified further that Miller and Connor led him to believe that such a notice as the above, if filed with the Board or the United States Department of Labor, would be con- sidered as legal and effective as a contract. On April 28 the respondent resumed its operations and posted the above notice, and on April 30 the Regional Director closed as "adjusted" the pending case based upon the Union's charges. b. Concluding findings The respondent asserts that the settlement of April 27, 1938, pre- cludes us from finding that the respondent engaged in any unfair labor practices prior thereto. Pursuant to Section 10 (a) of the Act, we are not bound by settlement agreements 23 But, as a discretionary matter, we have given effect to such agreements where it would effectu- ate the policies of the Act to do so. We believe that we should give effect to .the settlement in the instant case and accordingly refrain from finding any unfair labor practices upon the basis of the events set forth in the preceding subsection. Although we find hereinbelow that subsequent to the settlement the respondent engaged in certain unfair labor practices, in our opin- ion that conduct is distinctly separable from the respondent's actions immediately preceding and during the strike of February 20, prior to the settlement. Following the settlement, in the early part of May 1938 the respondent prepared with the Union's approval a supplement to the settlement agreement, namely, written regulations governing hours of employment, setting out the seniority principles to be ob- served by the respondent and tabulating the seniority standing of all the employees, including those laid off on February 15. This supple- mentary agreement was signed by the respondent and the Union, be- coming effective on May,11, and upon the entire record we are con- vinced, as was the Trial Examiner, that the respondent abided by its terms. At various times after April 27, the date of the settlement, the respondent negotiated with union representatives regarding work- ing conditions and made some of the adjustments therein requested. Although subsequent to the settlement Abel and supervisory employees 23 See N. L. R. B. v. Prettyman, 117 F. (2d) 786 (C. C. A. 6). THE OHIO CALCIUM COMPANY 935 of the respondent made three anti-union statements, noted below, nevertheless we believe that the respondent essentially complied with the terms of the settlement prior to June 1938. True it is that in and after June 1938 the respondent engaged in unfair labor practices within the meaning of Section 8 (1), (3), and (5) but those unfair labor practices were consequent upon a new series of events, namely, another strike called by the Union and, as found below, not caused by unfair labor practices. Whether or not we should give effect to a settlement cannot be determined by a mechanical application of rigid a priori rules but must be determined by the exercise of a sound judg- ment. based upon all the circumstances of each case. Although con- cededly we might give no effect to the settlement since the respondent engaged in unfair labor practices subsequent thereto, we are con- vinced and accordingly find that the policies of the Act will best be effectuated by giving effect to the settlement agreement and by dis- missing the complaint in so far as it alleges that the respondent en- gaged in any unfair labor practices by its conduct set forth in the preceding subsection. B. The refusal to bargain collectively and discrimination in regard to hire and tenure of employment 1. The appropriate unit At the hearing all parties stipulated that the production and maintenance employees of the respondent both at its mine and kilns, exclusive of superintendents, foremen, and office workers, constitute a unit appropriate for the purposes of collective bargaining. We find no reason to alter the agreed unit. We find that the production and maintenance employees of the respondent both at, its mine and kilns, exclusive of superintendents, foremen, and -office workers, at all times material herein constituted and that they now 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 to collective bargaining, and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The Trial Examiner found in substance that on or before Febru- ary 17, 1938, the Union had received applications from a majority of the respondent's employees, that before the end of February 1938, 41 or more of the approximately 50 employees in the appropriate unit had joined the Union, and that none of the 41 resigned there- from. The respondent did not take exception to these findings. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 21, 1938, the respondent had 50 employees within the appropriate unit, 43 of them actively employed and 7 of them tempo- rarily laid off but listed on the respondent's seniority and employ- ment waiting lists. The respondent recognized the latter as employees, and we find that they were employees within the meaning of Section 2 (3) of the Act. By May 21 approximately 43 of the 50 employees had joined or designated the Union as their collective bargaining representative. On May 22 the employment of 8 union members was terminated under circumstances discussed below, and on May 23 and 24, 7 new employees were hired, but the Union retained its majority representation, having been designated by 35 of a total of 49 employees.24 As is discussed below, on or about May 24 the Union called a strike, in which 40 of the respondent's 49 employees participated, and ter- minated it on June 1. The respondent did not thereafter reinstate any of the striking employees but, as found below, the latter retained their employee status within the meaning of the ° Act since they ceased work as the result of a current labor dispute. Between May 31 and June 2, 1938, the respondent operated its plant with its 9 non- striking employees and approximately 23 new employees. Thirty- six of the forty strikers had joined the Union or applied for membership therein.25 Although the other four strikers had not joined it or applied for membership, having been employed only since May 21 and 23, respectively, nonetheless they voluntarily par- ticipated in the strike and did not return to work at any time during its pendency. As appears below, the Union applied for the reinstate- ment of all the strikers as a group; the respondent refused to rein- state any of them; and the Union filed charges on behalf of the entire group. Under all the circumstances of this case, we find that by their participation in the strike, the four strikers designated the Union as their representative.26 Thus, between May 31 and June 2 the Union represented all 40 of the striking employees, a majority even if the new employees are counted, increasing the respondent's total em- ployees to 72. We find that in and at all times since February 1938 the Union has been the duly designated representative of a majority of the 2; Only 6 of the 49 were employees not actively working, as discussed supra, the seventh having been called to active duty on or about May 22 iv This number includes two new members secured among the striking employees on May 26 It does not include one union member who did not participate in the strike. 2i See Matter of Chicago Casket Company and Casket Makers Union, etc., 21 N. L R B 235, 248-9, Matter of United Fruit Company and International Longshoremen, etc., 12 N. L. R. B. 404, 410; Matter of Rosedale Knitting Company and Rosedale Employees Association, etc , 20 N. L. R B. 326, 332-3 ; Matter of Rabhor Company, Inc, and Inter- national Ladies' Garment Workers Union., 1 N. L R B. 470, 476. Cf Matter of National Motor Bearing Company and International Union, etc., 5 N. L. R. B. 409, 428, enf'd as- mod , N. L. R. B v. National Motor Bearing Co., 105 F. (2d) 652 (C. C. A. 9). THE OHIO CALCIUM COMPANY 937 respondent's employees in the appropriate unit, and that pursuant to Section 9 (a) of the Act, the Union has been the exclusive repre- sentative of all the employees in such unit for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The alleged refusal to bargain and alleged discrimination on May 22, 1938 The complaint alleges that on May 22, 1938, the respondent dis- criminatorily terminated the employment of eight employees and refused to reinstate them thereafter, and that on and after May 22 the respondent refused to bargain collectively with the Union as the exclusive representative of its employees. The respondent denies these allegations. a. Sequence of events Some time after the settlement referred to above, Foreman Bridges approached Ernest Bailey, an employee, while he was working at the kilns and asked what the employees were going to do with respect to the Union, "go ahead with it or drop it." Bailey replied that if they all felt as he did they would continue with the Union, and Bridges warned that they were "hurting themselves." As noted above, early in May 1938 the respondent and the Union supplemented the settlement agreement by agreeing to, signing, and putting into effect written seniority regulations, and the respondent did not contravene the terms of the-said supplement. Although, as the Trial Examiner found, some employees were guilty of careless or willful abuse of property and a partial stoppage of work after the settlement, the respondent did not institute any punitive measures therefor but made an effort to maintain amicable relations with its employees and the Union. As mentioned above, on various occasions the respondent conferred with union grievance committeemen or with Stinson, union representa- tive, regarding working conditions and granted union requests for adjustment thereof. Some time after the settlement of the strike Abel had a conference with union grievance committeemen for the kilns 27 and came to-an understanding concerning the proper size of a full kiln crew. On the following day Abel, granted the Union's demand for the hiring of an additional worker at the kilns to complete the crew. It appears that prior to the first strike the respondent had employed as many as 8 and 12 stone loaders at its mine. Upon resumption of operations after the settlement, it employed only six loaders. Shortly ? Frejerjck Martin and Jphn McCprkje, 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter it reduced the force to five by laying off George Shelton, one of the loaders. This reduction of staff elicited an immediate protest of unfairness from the remaining loaders, as a result of which the respondent added a sixth man to the crew, Perry Willis, a loader with greater seniority than Shelton .211 After the settlement the respondent changed its system of loading stone at the mines by causing its mule drivers to bring three empty cars into the mines for loading at a single time instead of one car as before, and the loaders expressed dissatisfaction with this innovation. At their request, the two mine members of the union grievance com- mittee, Lester Doughty, a loader, and Carl Shope, another mine worker, visited Abel on May 19 and told him that the loaders were being over- worked, that they no longer had their customary rest periods after loading cars, and that they desired the respondent to hire two addi- tional loaders to lighten the work. Abel suggested that they have a full meeting by calling in the other two grievance committee members who represented the kilns. Either Doughty or Shope replied, "To hell with the kilns ... they get everything they want. We are looking after the mine." At a conference on the following day, Abel sum- moned Assistant Superintendent Bailey and asked his opinion of the request for extra help. Bailey replied that he thought it unreasonable, that the loaders were paid upon an hourly basis and were not required to do any specified amount of work in a day, that they still had or took rest periods, and that the average tonnage loaded by them had decreased. After further arguing the merits of the miners' demand, Abel refused to provide any additional help. On May 21 the loaders sent Shope to tell Abel that unless two more loaders were employed by the following day, they would not work that day. Abel was absent when Shope arrived at the office, but Roy Abel asked him what he wanted. Shope told him and Roy Abel warned, "If that is your business, you had better not tell him [Abel], for if you do he will shut it down and never run again." Nevertheless, Shope waited until Abel returned and repeated the demand for more help. Abel again rejected it and Shope delivered the miners' ulti- matum that they would not work the next morning if Abel persisted in his refusal. After this meeting Abel telephoned Stinson in Kentucky and asked him to come to assist in settling the trouble at the mine. Stinson promised to come at once but a storm prevented him from arriving until the forenoon of May 22. Earlier that morning, before the work- 21 The above facts are drawn largely from the testimony of Lester Doughty, one of the loaders. In his testimony , Abel also referred to the addition of a loader to the crew but stated that this was done on the first night of work at the mine after the settlement. His testimony is less lucid and detailed than Doughty 's regarding this matter , ' and we therefore find the facts to be as set out above. THE OHIO CALCIUM COMPANY 939 ing day began, Lester Doughty, Martie Banks, Delbert Sizemore, Clair Justice, John Calhoun, and James Besco, the six loaders then em- ployed, John Loper, the mule driver, and Isaac Sanders, a track layer, gathered at the mine to await word from the respondent regarding the demand for extra help. Shortly thereafter Assistant Superintendent Bailey, Roy Abel, and Abel Jr. arrived at the mine.29 Bailey asked if the men were willing to work without extra loaders, and Doughty, mine committeeman, replied in the negative. Bailey stated that no new loaders were going to be hired and gave the men the option of working without extra help or leaving the premises. Roy Abel told them that if they chose the latter alternative they could get their wages at the office on the following day. Doughty warned the other mine employees not to enter the mine, prophesied that the kiln em- ployees would be on strike within 15 minutes, and left the mine. followed by Sanders, Loper, and the other loaders. Later that morning the respondent attempted to secure other em- ployees to replace the eight miners but was able to recruit only one worker. On the same day Stinson and members of the union grievance com- mittee called upon the respondent, requested the reinstatement of the miners, and did not renew the demand for additional help. Abel informed the union representatives that he had directed the foreman, apparently referring to Bailey, "to fire the miners if they did not go in and go to work"; that Roy Abel would have been justified in dis- charging them that morning for refusing to work; and that if Roy Abel did not then do so, the eight men were now "definitely" dis- charged, "through" so far as the respondent was concerned. Stinson testified without contradiction that Abel also stated in substance that it "was not a matter of collective bargaining discussion or nothing else." Abel reiterated that the miners were discharged and would not be reinstated, and the conference terminated with a warning by Stinson that there was going to be a general union strike at the plant. b. Concluding findings The Trial Examiner found that the respondent did not on May 22 refuse to bargain with the Union or discriminate against the eight miners, as alleged in the complaint, and we agree with that finding. We have seen that during a period when the respondent was essen- tially fulfilling the terms of its agreement, the stone loaders claimed to be overworked and demanded additional help. Although their spokesmen refused to accede to Abel's request for a meeting with the full union committee, Abel nevertheless conferred with them regard- " It is not clear whether the hour for starting work had been passed. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the demand, and only after full discussion did he decline to comply therewith. Thereupon, without any recourse to or authoriza- tion from the Union, which was their statutory representative oper- ating under an exclusive recognition agreement with the respondent, or even from the full union grievance committee, the eight miners delivered an ultimatum to the respondent and refused to work when the respondent adhered to its position. Because the eight miners refused to work, they were told to leave the premises and collect their wages on the following day. They were in effect discharged for not obeying their superiors' instructions and going to work.30 We find that their services were effectively terminated on the morning of May 22, before the Union adopted and acted upon their demand and before the Union authorized any strike action. Abel's statements to the Union's representatives on the afternoon of May 22, were only in confirmation of the previously effective discharges. Upon the entire record we find that the respondent terminated the services of the eight miners on May 22, 1938, not because they engaged in concerted activity protected by the Act, but because of their insubordination in refusing to obey a legitimate order of the respondent.31 Since they were discharged for proper cause, the respondent was entitled to refuse to reinstate them for the same reason, and we find that, the respondent in fact denied them reinstatement because of their insub- ordination.32 Clearly the respondent in no way refused to bargain immediately prior to May 22, and in our opinion it did not refuse to do so on that date when Stinson requested the reinstatement of the eight miners. Despite Abel's alleged statement that it "was not a matter of collec- tive bargaining discussion or nothing else," Abel nevertheless dis- cussed the matter with Stinson and explained to him the respondent's position, namely, that the respondent considered the refusal to work as just cause for discharge and that it would not reinstate the eight men. Under all the circumstances disclosed by the record, we find that the respondent fulfilled its duty under the Act to negotiate in good faith with the Union concerning the reinstatement of the eight miners, and that the denial of reinstatement to them was due to the respondent's legitimate position that their services had been termi- nated for proper cause. We find that by the coercive statements of Bridges and Roy Abel, supervisory employees, the respondent has interfered with, restrained, and coerced its employees in the exercise of the right to self -organiza- tion, to form, join, or assist labor organizations, to bargain collec- 30 Matter of The Firth Carpet Company and Textile Workers Union of America, 33 N L R B 191 'Matter of The Firth Carpet Company and Textile Workers Union of America, ibid. 02 Matter of The Firth Carpet Company and Textile Worker$ Union of America, ibid, THE OHIO CALCIUM COMPANY 941 tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. We find that the respondent did not on May 22, 1938, or thereafter, discriminate in regard to the hire or tenure of employment of Lester Doughty, James Besco, Marie Banks, John Loper, Isaac Sanders, Clair Justice, Delbert Sizemore, or John Calhoun, thereby discouraging membership in the Union; and that the respondent did not on or about May 22, 1938, refuse to bargain with the Union 'as representative of its employees in the appropriate bargaining unit. 4. The second strike, the refusal to bargain, and discrimination in regard to hire and tenure of employment The complaint alleges that on or about May 24, 1938, 40 named employees of the respondent went out on strike because of the re- spondent's unfair labor practices ; that on and after the termination of the strike the respondent discriminatorily refused to reinstate the striking employees; 33 and that at all times after May 22, 1938, the respondent refused to bargain collectively with the Union. The re- spondent denies these allegations. a. Sequence of events On May 23, the day after the eight miners were refused reinstate- ment and Stinson threatened that there would be a,strike, Abel in- formed the Regional Director of the situation by telephone and requested his personal- assistance in forestalling impending "trouble." In response to this appeal, Field Examiner Miller came to the plant and attempted unsuccessfully to adjust the dispute. On May 24 the Union informed the respondent that it would call a strike if the respondent did not by noon that day reinstate the eight miners, employ two additional men, and reinstate "all union men . . . before any new men are kept." 34 The respondent did not comply with the union demands and the Union declared the strike effective as of 4 p. in. on May 24. Forty-three persons were actively 33 The complaint also alleges that the eight miners participated in the strike and were discriminatorily denied reinstatement . Since we have already found, however, that they were lawfully discharged for cause on May 22 and that the respondent refused remstate- ment to them thereafter for the same lawful cause, we shall not refer to them herein- after as striking employees and shall dismiss the complaint in so far as it alleges further discrimination against them 3AThis last demand had reference to a controversy between the respondent and the Union regarding the scope of the agreement settling the first strike, as supplemented in May 1938. i 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working at this time. Thirty-four of them ceased work to partici- pate in the strike, and were joined by the six employees named on the seniority and waiting lists.35 Striking employees began to picket the plant, and the respondent closed down on the same day, after a brief interval of operation with its nine non-striking employees and new employees. On May 31 the respondent reopened its kilns and mines, staffing them with a total of 32 non-strikers and newly hired workers. At some time during this period, Abel told James Ander- son, a striking employee, and Martie Banks, one of the former miners, in substance that "the place would never run, by God, under the Union any more." On June 1 the Union decided to terminate the strike and to notify the respondent of this fact and of the readiness of the strikers to resume work, and on June 2 Colonel Lawler, Ohio National Guard representative, and George S. Slyer, a Board Field Examiner, trans- mitted this information to the respondent."' Stinson desired to dis- cuss with Abel personally the reinstatement of the striking employees but was unable to secure a conference with Abel. Slyer, who was conferring with Abel in an effort to settle charges of unfair labor practices recently filed by the Union against the respondent,37 re- ported to Stinson on June 2 that Abel preferred to have his attorney handle the case and would not meet with Stinson or with the union committee. On June 23 Stinson telephoned Abel and requested a meeting to settle the current dispute. Abel flatly rejected this request stating that he "had had plenty of experiences" with Stinson and further, that his attorney had advised him not even to talk with Stinson. Stinson concluded the conversation by stating that because of "Abel's refusal to negotiate, the merits of the controversy would be left to the Board for decision. The Union made no further effort to negotiate with the respondent thereafter. Between the close of the strike and the end of November 1938 the respondent employed 55 new employees, but at no time did it reinstate any of the 40 striking employees named in the Appendix hereto.38 35 Among the latter were five employees to whom the respondent offered the jobs left vacant by the eight miners on May 22. Because of the pending controversy regarding the miners , the five men refused to accept those positions . Clearly they did not intend to terminate their employment status by their refusal , and the respondent did not dis- charge them therefor or regard them as having ceased being employees . We find that they remained employees within the meaning of the Act. 16Also on June 2 Stinson sent Abel a letter stating that its purpose was to confirm Slyer's "statement" regarding the Union 's action, "in which" it voted to terminate the strike and authorized a committee of three striking employees to inform Abel that all the employees were ready to resume work "status quo." "The Union filed 8 ( 1) and ( 3) charges in the'instant proceeding on May 25, 1938. 8 Herschel Cade and Fred Vickers, striking employees , also made individual applications for reinstatement in August 1938 and shortly before the hearing herein , but without success. THE OHIO CALCIUM COMPANY 943 b. Concluding findings Since we have found that the respondent did not discriminate against the eight miners on May 22, 1938, or refuse to bargain with regard to them or their demand, it is apparent and we find that the strike ending on June 1, 1938, was not caused by any unfair labor practices of the respondent as alleged in the complaint. The strik- ing employees ceased work in the course of a labor dispute, however, and therefore remained employees within Section 2 (3) of the Act."9 With regard to the alleged discriminatory refusal to reinstate the striking employees, the respondent's answer avers by way of affirmative defense that the striking employees have at all times since May 24 continued on strike, have never reported for work, and have never requested the respondent to recall them to work. ' The facts show clearly, however, and the Trial Examiner found, that the re- spondent was given adequate notice of the termination of the strike and of the striking employees' desire to return to work. The re- spondent did not take exception to these findings.40 We find that on and after June 2, 1938, the respondent refused to reinstate any of the striking employees upon application. The respondent contends further in its answer that agents of the Board led it to believe that no complaint would be issued because of the Union's charges, that the respondent relied thereon by con- tinuing the new employees in its employment, and that the Board is therefore "estopped to file the present complaint, or to hold re- spondent in anywise liable for the reinstatement of or the payment of back wages to" the striking employees. Field Examiner Slyer testified without contradiction that at no time did he express an opinion to Abel as to whether or not the respondent had engaged in unfair labor practices, and the record contains no evidence that any opinions of such a character were voiced by any agents of the Board. Upon the entire record we find' no merit in the respondent's contention that agents of the Board represented to the respondent that it had not engaged in unfair labor practices. Moreover, without regard to whether or not such representations were made, we are of the opinion that the policies of the Act would not be effectuated by dismissing the complaint in its entirety. sa N. L. R B v. Mackay Radio & Telegraph Co , 304 U. S 333 , rev'g 92 F. (2d) 761, 87 F. (2d ) 611 (C C A 9), and enf'g Matter of Mackay Radio it Telegraph Company, etc and American Radio Telegraphists' Ass'n, etc., 1 N. L. R. B 201. 40 On November 7, 1938, a local newspaper published a letter signed by 14 strikers and 3 former miners , which stated the following : "We, as members of Local 669 do not want back [sic] with the conditions that exist at the Ohio Calcium Co." The Trial Examiner found that the letter did not affect any rights accruing to the strikers by virtue of the above-mentioned notice to the respondent. The respondent did not take exception to this finding of the Trial Examiner. I 944' DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent's answer further avers by way of affirmative de- fense that during, and after the strike the striking employees engaged in various specified "acts of unlawful violence upon and adjacent to the plant of the respondent." The respondent's answer does not allege, however, that the respondent refused to reinstate the striking employees or to consider them for reinstatement because they engaged in violence. This omission suggests strongly that the respondent does not claim that this was its reason for refusing them reinstatement or for failing to consider their reinstatement. That such is the actual significance of the omission is indicated by the fact that the respond- ent urges as a 'separate defense that the striking employees continued on strike and never requested the respondent to recall them to work, which defense we have found without merit. Moreover, neither Abel nor any other official of the respondent testified that any violent or wrongful conduct of the striking employees was the reason for their not being reinstated. Finally, in its two briefs, one before the Trial Examiner and one before the Board, the respondent argues that specified violent conduct "justifies a refusal of re-employment," and that a court will hold that Abel "was justified in taking it into con- sideration in not reinstating these strikers," but at no point in its briefs does the respondent contend that it in fact considered such conduct as a reason for its denial of reinstatement. Consequently, we are of the opinion that this conduct was not its reason therefor. We interpret the averment of -violence rather as a contention that by their misconduct the striking employees have forfeited their rights under the Act, and that the Board should therefore not order their reinstatement. This contention is discussed in Section V below. Our conclusion that the respondent did not deny reinstatement to the striking employees because of any wrongful acts by them is cor- roborated by the evidence in the record concerning their conduct and that of the respondent during and following the strike, which is also discussed in detail in Section V below. Since the strike was not caused by unfair labor practices, the re- spondent was under no duty to displace persons hired since the commencement of the strike in order to reinstate the striking em- ployees upon their application. The respondent was obligated under the Act, however, not to discriminate against the strikers or otherwise to interfere with the rights guaranteed them by Section 7 of the Act.41 On June 2 when the Union notified the respondent of the strikers' readiness to return to work, the respondent had only 32 per- sons working at its plant, 11 persons less than it had prior to the n As we have found, the strikers remained employees within the meaning of the Act. But whether or not they remained employees, they were protected against the unfair labor practices denounced by the Act. N. L R B v Phelps Dodge Corp. 313 U S. 177. THE OHIO CALCIUM COMPANY 945 commencement of the dispute on May 22. It therefore appears that the respondent had vacant jobs in which it might have reinstated at least 11 strikers . The respondent did not recall any of the , strikers, however, not even those who did not engage in any misconduct, re- fused to explain or discuss its reasons therefor , and during the 6 months following the close of the strike , filled with new employees a total of 55 employment vacancies, more than enough to have allowed reinstatement of all 40 strikers . Upon these facts, together with the respondent's unexplained departure in the case of the strikers from its customary leniency regarding misconduct by employees ; its par- ticipation in; and perhaps incitation to, violent conduct; its present attempt to bar the reinstatement of all the strikers for alleged offenses by some of them, which it did not at the time deem serious enough to seek arrests or prosecutions therefor ; the coercive statements of Foreman Bridges and Roy Abel ; and Abel's statement during the strike that the respondent would not again operate under the Unioli, we find that by failing to reinstate any of the striking employees, the respondent discriminated against all of them because of their union membership and participation in the strike. We have already noted Abel 's statement during the strike that the plant would never again operate under the Union. As we have also noted, in June 1938 the respondent had not filled the jobs of all the striking employees , and it was therefore obligated under the Act to bargain concerning their reinstatement upon request of the Union.42 Notwithstanding this obligation, the respondent refused to meet or discuss the matter with Stinson and offered no explanation of its- refusal to reinstate any of the striking employees . Upon the back- ground of the above facts, it is clear and we find that by refusing to confer with the Union on and after June 2, 1938 , the respondent refused to bargain collectively with the authorized representative of its employees. We find that the respondent on and after June 2, 1938, has discrimi- nated in regard to the hire and tenure of employment of the striking employees, thereby discouraging membership in a labor organization; that on and after June 2, 1938, the respondent has refused to bargain with the Union as representative of its employees in the appropriate bargaining unit with respect to wages, hours of employment, and other conditions of work; and that the respondent by such discrimina- tion, refusal to bargain , and other statements and acts during and after the strike has interfered with, restrained , and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act. 43 Matter of Washougal Woolen Mills and Local 127, Tcxtrole Workers Union of America, 23 N L. R. B. 1. 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. Since we have found that the Union represents a ,majority of the employees in the appropriate unit and that the respondent refused to bargain collectively, we shall order the respondent upon request to bargain collectively with the Union as the exclusive representative of the employees within the appropriate unit. Since we have found that the respondent discriminated against five employees 43 by not employing them from February 8 to 9, 1938, we shall order the respondent to pay to each of them a sum of money equal to the amount which he would normally have earned as wages had the respondent not so discriminated against him, less his net •earnings,44 if any, during the period of this discrimination. We have found that the respondent discriminatorily refused on and after June 2, 1938, to reinstate the 40 striking employees who partici- pated in the strike ending June 1, 1938. The respondent contends in its answer that during and after the strike these employees engaged in various specified "acts of unlawful violence upon and adjacent to the plant of the respondent." We turn now to a detailed consideration of this defense in order to,determine whether any of the alleged conduct warrants refusal of relief to the strikers.45 43 Elroy Dinnen, Frederick Martin, Harry Bare, John H. Ervin , and John McCorkle. 44 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 the dis- crimination against him and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 L. R. B. 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v N. L. R B., 311 U. S. 7. 45 The respondent also attributed similar conduct to five of the eight miners whose employment was terminated on May 22, 1938. Since the reinstatement of these employees is not in issue (see footnote 33, eupral, and since no conduct by them can provide justifica- tion for denying reinstatement to strikers in the absence of clear proof of participation in such conduct or authorization or ratification . thereof by strikers, which proof we do THE OHIO CALCIUM COMPANY 947 On May 24, after the commencement of the strike, the respondent imported workers to operate the kilns in lieu of the strikers. From the time of their entrance into the plant until the plant closed that night, there was sporadic rock throwing by named striking employees and perhaps by onlookers gathered near the plant, and upon all the evidence it appears likely that nonstriking employees or other persons within the plant participated therein to some extent. Two new em- ployees sustained head injuries and the cars of two or. three company officials were scratched as the result of flying stones. The kilns were closed at about 8: 30 or 9 p. m. allegedly because of stones thrown at them after dark. About a half-hour after the non-striking employees and officers of the respondent had left the plant, unidentified persons stoned the respondent's office, breaking most of its windows and scratching furniture within. The kilns and mine remained closed be- tween May 24 and 31 upon the advice of Colonel Lawler of the Ohio National Guard, who was sent to the plant as personal representative of the Governor of Ohio in response to Abel's appeal to the latter for assistance. They were reopened on the latter date and staffed largely with new employees. On that day a striker threatened that a company truck leaving the plant would never reach its destination, and a group of strikers together with two of the eight miners followed it by auto- mobile. It apears that they may have checked the speed of the truck somewhat and that one of the miners waved a hammer at it, but they inflicted no damage on the truck or its occupants. On the other hand, Abel, Jr., who was in the truck, pointed a gun at the strikers. That night there was a great deal of shooting at and from the kilns without injury to person or property. Some dynamite ex- ploded during the night outside. company property, likewise causing no damage. Sporadic shooting toward and from the kilns continued after the termination of the strike throughout the month of June," but it did not halt the respondent's operations or cause any casual- ties. Occasional shots were fired by unidentified persons in the di- rection of Abel's car and a company truck, and a number of shots struck the residences of Roy Abel and several strikers who lived near the plant. The respondent's office telephone was temporarily out of order on several occasions in June, which the respondent attributed to interference with telephone lines. It may be noted at the outset that the record contains no evidence of any attempt by striking employees 46 to seize, occupy, or gain con- trol of the respondent's property.47 Furthermore, many of the inci- not find in the record, we shall not discuss the miners' conduct in detail in the text but shall note it in footnotes , infra. See Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219, enf'd as mod., Republic Steel Corpora- tion v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), 311 U. S. 7. " Nor by any of the former miners. 41 Cf. N. L. R. B. v. Fansteet Metallurgical Corp., 306 U. S. 240. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dents complained of by the respondent occurred after it had wrong- fully refused the strikers reinstatement on June 2. Moreover, much of the testimony concerning the occurrences outlined above fails to name any striking employees in connection therewith and therefore does not furnish any foundation for barring them from reemployment. It may also be noted that none of the strikers 48 has been arrested, tried, or convicted for any acts upon which the respondent now relies.49 Although the respondent reinstated none of the 40 striking em- ployees, admittedly it possessed no evidence of any wrongdoing by one striker, Perry Willis. Furthermore, although Abel testified gen- erally that he had received information regarding wrongful conduct by all the other striking employees, he did not testify specifically as to any such conduct by 12 strikers 10 in addition to Willis, and the record does not show that these 13 persons did anything of a repre- hensible nature during or after the strike. Evert if all the other 27 striking employees were guilty of improper acts, that would provide no justification for denying reinstatement to these 13 blameless strikers.51 The respondent's witnesses charged a second group of 19 striking employees with the following offenses : To one striking employee 52 in' this group they attributed a warning to another employee that he would get hurt if he did not' participate in the strike ; and to three others 53 having rocks in their hands in the picket line. These four employees were not witnesses at the hearing. Four striking employees were charged with having and throwing rocks.54 One,'-' of the latter was not a witness at the hearing; another 56 admitted having rocks in his hands but denied having thrown them; while the two others 5" denied having picked up or thrown stones. The- Trial Examiner 48 Nor any of the former miners. 49 Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L R B. 219, enf'd as mod , Republic Steel Corporation v N L R B , 107 F (2d) 472 (C C A 3),' 311 U S. 7 S9 Roy [ Ray] Leedy , George Shelton , Dewey Depriest, Frank Depriest, Fred Vickers, Estel Middleton, Lee Middleton , Edwin Sizemore, James Evans , Chailes Arbaugh, Luna Bare, and Charles Cade 51 See Matter of Republic Steel Corporation and Steel Workers Organizing Commtittee, 9 N L R B 219 , enf'd as mod , Republic Steel Corp , v N L. R. B, 107 F ( 2d) 472 (C C A 3), 311 U S 7; N. L R B v. The Kentucky Fire Brack. Company, 99 F. (2d) 89 (C C A 6), enf'g Matter of Kentucky Firebrick Company and United Brick and Clay Workers, etc , 3 N L R. B 455 , Stewai t Die Casting Corp. v. N. L R. B , 114 F. (2d) 849 (C C A 7). "Charles Ratliff. 53Harry Bare, Lawrence Young, and John F Ferguson ( not Foreman Ferguson). 54 Also John Loper , James Besco , and Martie Banks , three of the eight miners Loper was not a witness at the hearing . Banks did not testify in this regard, while Besco, although admitting having had rocks in hand , denied having thrown them. 56 Brooks Goodwin. 88 Martin Butler 51 Joe Ackison and Ernest Bailey. THE OHIO CALCIUM COMPANY 949 found some of the testimony of the respondent's witnesses regarding rock throwing to be "of a very unsatisfactory nature," and the re- spondent has taken no exception to this finding. Upon the entire record we believe the above denials. The respondent accused the remaining 11 of the 19 strikers in this group, respectively, of having a rock in hand; 58 throwing rocks; 59 attempted interference with the movement of company trucks on May 31;6" cursing non-strikers 61 Abel,62 and Foreman Bridges; 63 threatening non-strikers 64 and Abel 65 generally, without apparent effort to inflict actual bodily harm; attempted interference with the departure of a train loaded with the respondent's products on May 24; 111, engaging in fist fights with non- strikers outside company property after the strike; 67 and being in the group of men who in June, shortly before the office telephone was al- leged to have been temporarily out of order, were seen standing near a telephone pole upon which Roy Justice, a striking employee, was allegedly mounted and engaged in handling the wires.88 A number of these strikers denied having engaged'in various ones of the above acts imputed to them, and we find their 'denials on the whole more credible than the testimony seeking to incriminate them. In any event, under the circumstances set forth above and below, we deem none of the above-described conduct to be sufficient to bar the rein- statement of these 19 striking employees. The respondent's witnesses charged that the other eight strikers 69 engaged, respectively, in some conduct such as is treated above; 71 that on May 24 one of them 71 threw a stone at and cracked the wind- shield of a non-company truck which had imported workers to replace the strikers ; that on May 24 "Floyd Adkins and Jim Anderson and se Willard Carmon 60 Herschel Cade, Winfield Claxon, Elroy Dinnen , Charles Ervin, John Brannigan, Jr., Dan'l Cameron , Stanley Kelley, John H. Ervin, Perry Aldridge, and Freer Goodwin. Also Lester Doughty and Clair Justice, former miners 60 Charles Ervin, John H. Ervin, Carmon, Brannigan , Cameron and Stanley Kelley. Also Doughty and Clair Justice, former miners. °r Dinnen, Herschel Cade, and Aldridge Si Charles Ervin, Aldridge , and John H. Ervin Abel admitted that he himself cursed during the strike. 83 Dinnen. U Carmon, Cameron , John H. Ervin, and Aldridge. °° Aldridge, Claxon, and John H. Ervin B° Cameron, John H. Ervin, Aldridge, and Freer Goodwin. 67 Dinnen and Brannigan . Also Doughty and Clair Justice, former miners. °° Cameron. Also Clair Justice, a former miner m Floyd Adkins, George Blagg, Jr, Roy Kelley , Roy Justice, Frederick Martin, John McCorkle, James Anderson , and Carl Shope 70 The following conduct was imputed to them, as follows : Rock throwing : all eight of them. Participation in pursuit of company truck : Adkins, Roy Justice, McCorkle, and Shope. Participation in attempt to stop train : Roy Justice and Roy Kelley. Calling of bad names : McCorkle, Anderson , Shope, Roy Justice, Roy Kelley, Adkins, and Blagg. Participation in telephone incident : Martin and Roy Justice. Fist fight : Roy Justice . General threats : Martin , Adkins, and Anderson. Tr Martin. 451269-42-vol 34-61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD George Blagg hollored out, `There comes the son-of-a-bitch [referring to a non-striking employee], let's kill him"'; that on May 31 another of them 72 threatened that the respondent's loaded truck would never reach its destination ; that on May 31 still another 13 remarked, "We will shoot you sons of B's out of here tonight"; and that in June that striker handled some telephone wires shortly before the respondent's telephone became temporarily useless. Some of this alleged conduct, including the alleged threat to shoot, is controverted by the striking employees to which it is attributed, and upon all the evidence we credit these denials. In any event, under the circumstances set forth herein- above and hereinbelow, we deem none of this conduct sufficient to bar the reinstatement of these eight strikers. Six of them 74 are also in- directly implicated by the respondent's witnesses in the shooting on and after May 31, which we now discuss. The respondent accuses the Union of responsibility for shooting at the kilns and company officials but has introduced no specific evi- dence that any striking employee was seen carrying a gun on the picket line or firing a single shot. The Trial Examiner found that no striking employees were identified as having participated dn'the shooting toward the kilns. The respondent attempted to prove the Union's responsibility for the shooting by testimony indirectly link- ing strikers therewith. 15 It should be noted at the outset that the respondent did not swear out any warrants or institute civil or criminal action against any strikers upon the basis of the alleged facts embodied in this testimony. The testimony includes statements that by nightfall on May 31, when the shooting began, the families of six strikers 76 had left their homes behind the kilns; that the recurrent shooting during June was uniformly preceded by a similar exodus of families of these and other strikers living in the vicinity of the plant; 77 that a con- siderable amount of shooting toward the kilns emanated from the direction of these houses; that at about dawn on June 1 Roy Abel, from a distance of 200 yards, heard a voice near the houses behind the kilns, which he,"felt sure" was that of a striker'78 yell, "they shot clear 72 Shope. 73 Roy Justice. 74 Shope, Anderson , McCorkle, Martin, Roy Justice , and Roy Kelley. 76 We have already noted the alleged threat of shooting on May 31 , the denial of which we credit. 7e Martin , Vickers, Shope, Roy Kelley, Herschel Cade, and George Shelton, as well as that of Doughty, one of the fhrmer miners 77 McCorkle also lived in a house behind the kilns, while Carmen , Cameron, Roy Justice, and Freer Goodwin lived in a row of houses west of the kilns , in which row Assistant Superintendent Bailey and two non -employees also resided . Roy Justice testified that he and his family did not leave home during the strike . It should be noted that persons other than strikers took precautions against the shooting , including moving from their homes near the plant Sush persons were Bailey , Roy Abel, Abel Jr, and a local minister 711 Martin. THE OHIO CALCIUM COMPANY 951 through my house"; 79 that another striking employee 8o was seen coming from the direction of these houses early on June 1; that in June several shots were fired over Abel's car and at Roy Abel's house from a hill behind a grove where shortly before Abel had seen Or- ganizer Stinson and a group of strikers; 81 that while driving his car rapidly down the highway in June, Abel saw two apparently unarmed strikers 82 run behind a tie pile and then heard two rifle shots fired from that direction, one whizzing by the car; that a number of strikers possessed guns,83 as did almost everyone who lived in the neighborhood of the plant; 84 that strikers had '115 bought,86 or tried to buy S7 ammunition during or shortly after the strike; and that one striker,"" upon the refusal of his offer to buy a rifle on credit, "said if the fellows could raise the money, they would buy it." 89 This striker was also charged with directing the shooting toward the kilns on May 31 in a loud voice like "a sort of bandmaster"; with being near his house behind the kilns while the shooting was still in progress before dawn on June 1; and with telling a local storekeeper on or about June 2 that "he had to hurry on home because they were going to have hell out there again." The striker contradicted the last three charges, and upon all the evidence, including the fact that the re- spondent instituted no legal proceedings against him, we do not be- lieve the charges to be true. Two other strikers were also allegedly heard talking near the houses behind the kilns early on June 1. One so of the two testified, however, that he was not at home that night, and we credit this Testimony. The respondent charged another striking employee 91 with having given a neighbor advance warning of impending "trouble" in June, following which warning the shooting recommenced. The striker himself testified and we believe that two shots had already been fired when he spoke to his neighbor on this occasion. It should be noted that two strikers whom the respondent sought to-implicate as shown above," expressly testified that they did not do any shooting during the strike, which testimony we find credible, while another one of them 93 '9 The non-strikers at the kilns were allegedly aiming' their shots in the directions from which they were being attacked. 80 Martin Butler 81 Roy Justice, Martin, and Cameron, as well as Clair Justice, one of the former miners. 82 Anderson and McCorkle. 83 Shope, Aldridge, McCorkle, Martin, Cameron, Roy Justice, Roy Kelley, and possibly others. Also Doughty, one of the former miners 84 It was admittedly a "great country for guns " 15 Shope. 81 Aldridge. 8' Roy Kelley 83 Roy Kelley. 89 The identity of "the fellows" is not clarified. 90 Shope The other striker allegedly overheard was Martin. 91 Carmen. 82 Roy Justice and Cameron. 83 Martin. A 952 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD testified, "It is possible I could have shot during the strike. That is nothing out of the way, to shoot out in there." The record shows the latter statement to be true for residents of the vicinity ordinarily engaged in target practice and the shooting of dogs and other animals. The respondent also sought to show the Union's responsibility for the shooting by the fact that the shooting ceased after a so-called "law and order" meeting held by Colonel Lawler on or about July 2, 1938. Board Field Examiner Slyer presided and stated, in substance, that "if there was any possibility that the Union officers or members could assist the peace officers in stopping the shooting, that the company would be in a much better frame of mind to approach a discussion of a settlement of the dispute ... that the peace officers claimed they were unable to find out who was doing the shooting and as long as the shooting went on, naturally the Union was suspected of being a party to the shooting or participating in the shooting." Slyer testified, how- ever, that union representatives denied knowing who was doing the shooting or participating therein. Upon the basis of the above testimony, the respondent urges the shooting and other misconduct as a bar to the Board's reinstatement of any striking employees. Much of this testimony is vague and indefinite. In any event, it appears that the respondent itself either instigated the shooting and other violence or was equally as responsible therefor as anyone else. We have already noted Abel's statement that the plant would never again operate under the Union. Prior to the commencement of the general strike on May 24, Abel authorized the importation of an unre- stricted number of new workers to replace the employees who were about to go on strike, although he admittedly knew it might cause "ill feeling" and possibly "disturbances." By the appointed hour for the strike to begin on May 24, Abel and R. T. Lawson, secretary of the respondent, were openly armed with guns contrary to their usual prac- tice and despite the fact that there had been no violence or gunplay during the strike of February 20. Although the respondent sum- moned the sheriff after the start of the rock throwing on May 24, which was probably participated in by non-strikers, and although the sheriff offered unconditionally to arrest any wrongdoer against whom the respondent would swear out a warrant, the respondent failed to swear out any warrants or to tell the sheriff who had participated in the rock throwing, thus preventing his proper enforcement of the law. On the night of May 24 the respondent's agent in procuring new workers fired the first shot of the strike deliberately in the direction of the unarmed strikers picketing the plant, allegedly because stones had struck his. truck as he drove away from the plant. After a fruit- less attempt to secure police or State troop protection, the respondent, THE OHIO CALCIUM COMPANY '953 during its May 24 t., 31 shut-down, stored in the kilns a number of rifles and revolvers as well as ammunition; although there had been no further disturbance or any display of guns other than by its own agents. On May 31, the date when the plant reopened and the shooting began,, Abel, Roy Abel, and Abel Jr. appeared at the plant armed with guns. Two non-employees who had imported new workers on May 24, and a number of non-strikers and new employees, most of whom had worked at the kilns and the mine during the day, stayed overnight at the kilns on May 31, doing little if any work. Although they remained allegedly without instructions or per- mission from the respondent, it is notable that those from the mine were brought to the kilns in a company truck; that without apparent explanation, boxes of food appeared at the kilns, which the men accepted without question ; 84 and that almost all of them armed them- selves from the respondent's gun depot before a single gun had been discharged. Thus the respondent transformed the kilns into an armed fortress, and it precipitated the shooting which followed. At about midnight the second shot'of the strike was fired, and upon all the evidence we find that it was fired by some oiie at the kilns. The record does not disclose the reason for or the direction of this shot but indicates that it began the battle of gunfire between the em- ployees at the kilns and unseen persons at various surrounding points, which battle continued, intermittently and without casualties, through- out the night and the month of June. The men at the kilns shot into nearby homes of strikers and even fired several shots at the automobiles of local law enforcement officers and a representative of the Ohio Na- tional Guard, who were patrolling the plant. Moreover, on the night of May 31 Abel himself fired his shotgun at two men who were admit- tedly doing nothing more than walking down the highway; 6 and also attempted to shoot at two unarmed striking employees who were peacefully leaving the picket line ' A National Guard representative took the gun away from him. The respondent failed to inform the Union or any of the striking employees that wrongful conduct was the reason for their denial of reinstatement and refused even to discuss the reinstatement question with the Union, and we have found that it did not deny the striking employees reinstatement because of any wrongful conduct. Moreover, despite the gravity which the respondent allegedly attached to mis- conduct of strikers, it did not request the arrest of a single one of them, 94 Food had likewise been supplied at the mine at noon on May 31. ee Abel admitted this conduct on cross-examination . It is interesting to note that on redirect and recross examination , he contradicted himself by giving irreconcilable accounts of the incident, which are incredible in view of his earlier admission. 91 Roy Kelley and John F. Ferguson . The former , who testified as to this dncilent without contradiction , said that he did not want to repeat the language used by Abel on this occasion. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not institute against them or the Union any criminal prosecutions or civil suits, and did not seek any citations for contempt of the injunc- tion which it secured against the Union on or about June 9.97 At the "law and order" meeting held on or about July 2, 1938, in an attempt to bring an end to the continued shooting, Board Field Examiner Slyer urged all parties to assist the peace officers to identify the persons guilty of the shooting. Abel was present but did not, in response to this re- quest, furnish the names of any persons whom he suspected of shoot- ing or other unlawful conduct, nor did he make any suggestions as to their apprehension.98 These omissions by the respondent also cast con- siderable doubt on its good faith in introducing evidence of misconduct by striking employees, and in urging that their conduct disqualifies them from the protection of the Act. The respondent's motives in advancing such a defense are further impugned by noting the respondent's customary leniency regarding law infractions by its employees, Abel testified, "I go bail for most any- body up there that gets into trouble. I have always done it, and do it yet." The record shows that the respondent has frequently posted bail for new employees charged with various offenses; that it has retained in its employ many of the new workers, who probably participated in the rock throwing and who were equally as guilty of shooting as was anyone else; and that on June 4 it gave permanent employment to a worker 99 who had just been arrested for being intoxicated and firing a shot "as he came up the road," who was charged with shooting into some person's house, and who was admittedly a nervous person in- clined to shoot readily. Thus it appears that only in the case of the strikers did the respondent establish a high standard of employee con- duct, which standard it desires the Board to observe herein without regard for the respondent's unfair labor practices and its own incita- tion to and participation in violent conduct. The policies of the Act would not be effectuated by so doing. 91 It should also be noted that despite the respondent's claim that its telephone, service was cut off several times in June as a result of interference with the lines, the respondent admits that it did not report this matter to the sheriff or request any investigation by the telephone company, and that the service righted itself each time 95 The respondent does not explain its above failure to assist in law enforcement and in the suppression of unlawful conduct we may note in this connection that the respondent claimed that local peace officers did not attempt to halt the conimission of violent acts against the respondent, but actually condoned them and assisted therein. It appears, however, that these officers made their services available to the respondent at any hour of the day or night, offered to make arrests, escorted non-strikers from the plant, investigated kiln conditions, at the respondent's request investigated and searched various localities for evidence of wrongdoing, patrolled the plant together with National Guard representatives sent there by the Governor of Ohio, dispersed idle onlookers from the vicinity of the plant, enforced an orderly picket line, and arrested new employees for law violations. The officers denied knowing who was responsible for the shooting, and their failure completely to eliminate breaches of the peace may undoubtedly be attributed in large part to the respondent's lack of cooperation with them. Upon the entire record uue find no merit in the respondent's above contention. ° Pearl Roth. THE OHIO CALCIUM COMPANY 955 Upon this record we find that the respondent's defense is not set forth in good faith; that the respondent's real objection to the reinstatement of the striking employees is their union affiliation rather than an honest belief that by throwing rocks or by other acts discussed above, any of them have proved themselves unfit for reemployment; that nothing shown to have been done by any of the striking employees deprives them of their status as employees within the meaning of Section 2 (3) of the Act; that the striking employees have not become unsuitable em- ployees because of any conduct proved to have been engaged in by them; and that their reinstatement will not tend to encourage violence in labor disputes. Without condoning any wrongful acts which may have been committed, we find that the reinstatement of the striking employees will effectuate the policies of the Act. Since we have found that by denying reinstatement to the 40 strik- ing employees on and after June 2, 1938, the respondent discriminated against them in regard to hire and tenure of employment, within the meaning of Section 8 (3) of the Act, we shall order the respondent to reinstate all the striking employees except Roy Leedy,l who testified that he did not desire reinstatement; to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to pay back wages to all of them, including Leedy. Such reinstatement shall be effected in the following manner : All employees hired on or after June 2, 1938, shall be dismissed, if neces- sary to provide employment for those to be offered reinstatement. If, thereupon, there is not sufficient employment immediately available for all the striking employees to be offered reinstatement, all available positions shall be distributed among such striking employees without discrimination against any employee because of his union affiliation or activities, and following a system of seniority or other procedure to such extent as has heretobefore been applied in the conduct of the re- spondent's business. Those striking employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared 'in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions, as such employment becomes avail- able and before other persons are hired for such work. We shall order that the respondent pay to each of the 40 striking employees except Roy Leedy a sum of money equal to that which, 1 Also designated Ray Leedy. 2 Estel Middleton, another striking employee, testified that he did not know whetber or not he desired reinstatement and that he "ain't caring anything about it." Since this testimony is ambiguous with reference to Middleton's desires, we shall include him in our reinstatement order. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but for the discrimination against him, he would normally have earned as wages between June 2, 1938, and the date of the offer of reinstatement or placement upon a preferential list, less his net earnings 8 during said period. We shall -order the respondent to pay to Roy Leedy a sum of money equal to that which, but for the dis- crimination against him, he would normally have earned as wages between June 2, 1938, and August 22, 1939, the date when he testified that he did not desire reinstatement, less his net earnings 4 during said period. The respondent appears to contend that the striking employees should not receive back pay between June 2, 1938, and July 6, 1939, the date when the complaint was issued. Although more than a year elapsed between the end of the strike and the issuance of the complaint, charges were filed with the Regional Di- rector on May 26 and June 11, 1938, and on July 1, 1939, and on this record we do not believe that the striking employees should be denied back pay during this period. The Trial Examiner found that the respondent did not discriminate against them within the mean- ing of Section 8 (3) of the Act. In cases where the Trial Examiner finds no unfair labor practice under Section 8 (3) and the Board finds otherwise, the Board usually withholds back pay for the period from the date of the Intermediate Report to the date of the Board's order, on the ground that an employer could not be expected to re- instate employees in the face of the Trial Examiner's recommen- dation. In the instant case, however, the Trial Examiner recom- mended that the respondent place the striking employees on a prefer- ential list, and it does not appear that the respondent complied with this recommendation. It cannot therefore be said that in refusing to reinstate the striking employees the respondent relied on the Trial Examiner's Intermediate Report. Accordingly, we shall not with- hold back pay for the period from the date of the Intermediate Report to the date of our order herein.5 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Brick & Clay Workers of America, Local 669, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent both at its mine and kilns, exclusive of superintendents, foremen, and See footnote 44, supra. * See footnote 44, supra. 5 Cf. Matter of American Potash ii Chemical Corporation and Borax cf Potash Workers' Union, etc., 3 N. L. R. B. 140 , at pages 164-5, enf'd, N. L R. B. v. American Potash and Chemical Corp., 98 F. ( 2d) 488 (C. C. A. 9), cert den., 306 U. S. 643. THE OHIO CALCIUM COMPANY 957 office workers, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. United Brick & Clay Workers of American, Local 669, is, and at all times since February 1938 has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with United Brick & Clay Workers of America, Local 669, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of the employees listed in the Appendix hereto, thereby dis- couraging membership in United Brick & Clay Workers of America, Local 669, the respondent "has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the re-. spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) 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, The Ohio Calcium Company, Lawrence Station, Lawrence County, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Brick & Clay Workers of America, Local 669, as the exclusive representative of its employees within the appropriate bargaining unit in respect to rates of pay, wages, hours of employment, or other conditions of employment ; (b) Discouraging membership in United Brick & Clay Workers of America, Local 669, or any other labor organization of its employees, by laying off, discharging, or refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of their employment or any term or condition of their employment ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the National Labor Relations Board finds will effectuate the policies of the National Labor Relations Act : (a) Upon request, bargain collectively with United Brick & Clay Workers of America, Local 669, as the exclusive representative of the production and maintenance employees of the respondent both at its mine and kilns, exclusive of superintendents, foremen, and office workers, in respect to rates of pay, wages, hours of work, and other conditions of employment; (b) Make whole Elroy Dinnen, Fred Martin, Harry Bare, John H. Ervin, and John McCorkle for any losses of pay they may have suffered by reason of the respondent's discrimination against them on February 8, 1938, by payment to each of them, respectively, of a sum of money equal to the amount which he would normally have earned as wages had the respondent not so discriminated against him, less his net earnings 6 during the period of this discrimination; (c) Offer to all the striking employees, listed in the Appendix hereto, except Roy Leedy, 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 Section V above, placing those employees for whom employ- ment is not immediately available upon a preferential list in the manner set forth' in the said section, and thereafter, in said ,manner, offer them employment as it becomes available; (d) Make whole all the striking employees, listed in the Appendix hereto, except Roy Leedy, for any losses of pay they may have suffered by reason of the respondent's discriminatory refusal to re- instate them, by payment to each of them, respectively, of a sum of money equal to the amount which, but for the discrimination against him, he would normally have earned as wages between June 2, 1938, and the date of the offer of reinstatement or placement upon a pref- erential list in the manner set forth in Section V above, less his net earnings 7 during said period; (e) Make whole Roy Leedy for any losses of pay he may have suffered by reason of the respondent's discriminatory 'refusal to reinstate him, by payment to him of a sum of money equal to the amount which, but for the discrimination against him, he would normally have earned as wages between June 2, 1938, and August 22, 1939, less his net earnings 8 during said period; 6 See footnote 44, supra. 7 See footnote 44, supra, See footnote 44, supra. THE OHIO CALCIUM COMPANY 959 (f) Post immediately in conspicuous - places at its mine, kilns, and office, and maintain for a period of at least sixty (60) consecu- tive days from the date of posting , notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) to 2 (e) of this Order; and (3) that the respondent's employees are free to become or remain members of United Brick & Clay Workers of America, Local 669, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (g) Notify the Regional-Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint , in so far as it alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act immediately preceding and during the strike of February 20 to April 27, 1938, be, and it hereby is, dismissed; AND IT IS FURTHER ORDERED that the complaint , in so far as it alleges that the respondent refused to bargain with the Union on or about May 22, 1938, within the meaning of Section 8 ( 1) and (5) of the Act, be, and it hereby is, dismissed ; AND IT IS FURTHER ORDERED that the complaint , in so far as it alleges that on May 22, 1938, or thereafter, the respondent dis- criminated against Lester Doughty, Martie Banks, Delbert Sizemore, Clair Justice, John Calhoun , James Besco, John Loper, and Isaac Sanders, within the meaning of Section 8 (1) and (3) of the Act, be, and it hereby is, dismissed. MR. EDWIN S . SMITH, concurring in part and dissenting in part : I concur in the Decision and Order in so far as it sustains the allegations of the complaint . I dissent from the Decision and Order in so far as it fails to find that the respondent engaged in unfair labor practices immediately preceding and during the first strike commencing February 20, 1938; fails to find that on May 22, 1938, the respondent unlawfully discharged the eight miners and refused to bargain collectively with the Union ; and fails to issue the appropriate orders with respect thereto. Unfair labor practices preceding and during the strike commencing February 20, and the effect of the strike settlement of April 27, 1938: As is apparent from the facts set forth in the main opinion, the respondent discriminatorily laid off 14 union members on Feb- ruary 15, 1938, and engaged in other unfair and coercive tactics before and during the strike which followed. That the lay-offs were designed to discourage union activities and were discriminatory is 960 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD clearly shown by the timing of the lay-offs-a few days after the organization of the Union although the financial crisis which allegedly necessitated them had existed for months prior thereto; by the disproportionate number of union members laid off and non-union employees retained; 9 and by the statement of Abel, the respondent's president, treasurer, and general manager, that he was going to re- tain only non-union workers."' The strike of February 20-April 27 was caused by that discrimination, by the earlier unfair labor prac- tices found by the Board, and by further anti-union conduct by the respondent on February 20, amounting to a refusal to bargain upon request by the Union, the duly authorized representative of the cmployees.ll During that strike the respondent made coercive state- ments to its employees, manifested hostility toward Stinson, the Union's representative, refusing to shake hands with him upon an introduction, to meet with him at the Regional Office, or to allow him to participate in a conference with a union committee; 12 adhered to a fixed resolve not to enter into a signed collective bargaining agree- ment with the Union; 13 without prior consultation with the Union, posted for the attention of the employees,14 an alleged counterproposal which was couched in terms prejudicial to the Union and proposed to penalize union members for having engaged in concerted activity; and declared that a negotiating conference might as well terminate if the Union was proposing any changes in working conditions-all amounting to further interference, restraint, coercion, and refusal to bargain in good faith with the Union. The majority do not deny that these unfair labor practices occurred but hold that the purposes of, the Act will best be effectuated by giving effect to the settlement of April 27 and by dismissing the complaint in so far as it relates to such unfair labor practices. In 9 Of the 18 employees laid off, 14 were union members, while there were only 9 union members among the 27 employees retained. '° Further evidence of the respondent's discriminatory motivation is found in its failure to prove or to follow its alleged criteria for selecting employees to be laid off, and in Abel's eulogy of and guarantee of employment for Tracy, one of the non-union employees not laid off. 11 On February 20 the respondent , through Abel, excluded the union committee from the respondent 's bargaining conference with Whetro, an agent of the Union ; character- ized the Union's proposed contract in a deprecatory fashion without having examined it; refused to "do any business with a labor union" or to sign any bargaining contract with such an organization ; and expressed the respondent 's preference for an intramural organ. ization. Cf Republic Steel Corp v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), 311 U. S. 7, enf'g as mod., Matter of Republic Steel Corporation and Steel Workers Organizing Com- mittee, 9 N. L. R. B. 219; N. L. R. B. v. Griswold Mfg. Co., 106 F. (2d) 713 (C. C. A. 3) N. L. R. B . v. Lund, 103 F. (2d) 815 (C. C. A. 8). 12 Cf. X. L. R B. v. Fansteel Metallurgical Corp., 306 U. S. 240 ; Matter of R. C. Mahon Company and Steel Workers Organizing Committee, etc, 23 N L. R B. 1184. 13 Cf. H. J. Heinz Company v. N. L. R. B., 110 F. (2d) 843 (C. C. A. 6), aff'd, 311 U. S. 514. u Cf. N. L. R. B. v. Whittier Mills Co., 111 F. (2d) 474 (C. C. A. 5 ), rehearing den., June 11, 1940. 15 Cf. N. L. It. B. v. Good Coal Co., 110 F. (2d) 501 (C. C. A. 6), cert. den., 310 U. S. 630. THE OHIO CALCIUM COMPANY 961 my opinion established precedent and sound policy condemn this holding. Although the majority do not disavow the Board's uni- form practice of not giving effect to a settlement where the em- ployer violates it or continues a course of unfair labor practices the majority nevertheless give effect to the settlement herein despite the facts, as set forth in the main decisions, that shortly after the settlement the respondent made three anti-union statements or threats to employees,17 and that in and after June 1938, little more than a month after the settlement was approved by the Union, the respond- ent both contravened the settlement and engaged in further, unfair labor practices of precisely the same character as those covered by the settlement agreement, namely, interference, restraint, coercion, discrimination, and refusal to bargain with the Union. The main opinion states, however, that the respondent's conduct prior to the settlement is distinctly separable from its conduct after the settlement, for the reasons that during the interval between the settlement and June 1938 the respondent essentially complied with the terms of the settlement, and that the unfair labor practices in and after June 1938 were consequent upon a new series of events, namely, a second strike called by the Union, which the majority find was not caused by unfair labor practices. This view is neither well founded nor realistic. As already noted, the findings of the majority show that within a very short time after the settlement, the respondent uttered at least three expressions of continuing animosity toward the Union."' These statements cannot, in my opinion, be deemed consistent with compliance with the settlement. Moreover, as discussed below, I believe that the second strike was in fact caused by unfair labor practices of the respondent on May 22, 1938, namely, discrimination against the eight miners and refusal to bargain with the Union. The majority's view is unrealistic because they fail to look at the respondent's conduct as a whole, but instead cut it into segments which they view separately, with the distortions which necessarily result from such a procedure. .The record delineates a continuing course of conduct by the respondent, first to forestall and supplant the Union, namely, by the shut-down, lay-offs, and attempt to form 1e Matter of Picker X-Ray Corporation and International Association of Machinists, 12 N. L. R. B. 1384; Matter of Hope Webbing Company and Textile Workers Organizing Committee, etc., 14 N. L. R. B. 55; Matter of Harry L. Half and International Ladies' Garment Workers' Union, 16 N. L . R. B. 667; Matter of Phillips Petroleum Company and Oil Workers International Union, etc , 23 N L R B 741. "Foreman Bridges interrogated an employee as to whether the employees were con- tinuing their allegiance to the Union and warned that they were "hurting themselves" by so doing. On May 21 Roy Abel warned a union committeeman that collective activity by the miners would precipitate a shut-down of the plant . Thereafter Abel stated that the plant would never again operate under the Union. 18 See footnote 17, supra. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an intramural union between February 7 and 15; and then to break and to oust the Union, namely, by the discriminatory lay-offs on February 15, the coercive tactics and refusal to bargain before and during the first strike, the anti-union statements after the settlement of April 27, the discriminatory discharges and refusal to bargain on May 22, and the further refusal to bargain and discriminatory re- fusal to reinstate the strikers in and after June 1938. Upon viewing the respondent's conduct in its entirety, it seems plain to me that the settlement agreement of April 27 and the respondent's conduct for a brief interval thereafter did not constitute a real break in or cessation of the respondent's course of unfair labor practices, but were more in the nature of a truce into which, because of the strength of the Union, the respondent found it expedient to enter, only to await a more opportune moment to resume its unfair. labor practices. And, as the findings in the main opinion show, within about a month the respond- ent again undertook its outright attack upon the Union and breached the settlement. The majority's holding that the settlement should be honored, although the respondent violated it and did not cease its unfair labor practices for any appreciable period of time following it; is a dangerous innovation. Under such a holding, mere maneuvers by an employer in his attack upon a union may have the effect of relieving him, in the judgment of the Board, of responsibility for unfair labor practices, and so nullify the curative purposes of the Act. Discrimination on May 22, 1938: Equally dangerous is the major- ity's finding that the respondent lawfully discharged the eight miners on May 22 and did not discriminate against them thereby. The facts set forth in the main opinion show that at least as early as May 19 a dispute arose between the miners and the respondent concerning working conditions. Through the mine representatives on the Union's grievance committee the miners demanded additional help, claiming to be overworked, and the respondent steadfastly refused to comply with the demand. On May 21 a mine committeeman delivered to the respondent an ultimatum that the miners would not work on the following day if extra help were not granted. The respondent adhered to its position and as a consequence of this dis- pute, 8 miners did not work on May 22, 5 employees on the mine seniority list refused to return to work on May 22 when requested, and some 34 other employees had ceased work by May 24 in order to secure the improvement in working conditions asked by the 8 miners, and also to secure the reinstatement of the 8 miners, who had been discharged on May 22. There could be no plainer portrayal of strike action beginning on May 22 and spreading and becoming fully effective on May 24. THE OHIO CALCIUM COMPANY 963 Clearly, all the striking employees, including the eight miners, ceased work because of and in connection with a current labor dispute within the meaning of Section 2 (9) of the Act and therefore con- tinued to be employees within the meaning of Section 2 (3) of the Act. They were, therefore, protected against the unfair labor prac- tice denounced by the Act.1° Thus the respondent, in refusing em- ployment to all the strikers (i. e., by discharging the eight miners on May 22 and by refusing to reinstate all the strikers on June 2) because of their concerted activity in support of a legitimate demand, en- gaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. The main opinion accepts the reasoning in the preceding paragraph as to bulk of the strikers but not as to the eight miners. In separat- ing the eight miners, the main opinion makes a distinction not made by the respondent in its treatment of the striking employees. The respondent regarded all the employees who ceased work, including the eight miners, as strikers 20 and consistently treated them all alike by refusing employment to any of them because of their concerted activity. I cannot agree with the majority's finding that the concerted action by the eight miners to achieve an improvement in working conditions constituted insubordination justifying a discharge or refusal to rein- state. Actually, the majority's finding of insubordination is a mere, unsupported characterization which, as here applied by the majority, might be equally applicable to all strike action. In my opinion there is no valid distinction under the Act between the conduct of the eight miners and the action of the other striking employees, which is not found to be insubordination justifying a refusal to reinstate. That no *distinction exists under the Act is recognized in a recent decision by a.United States Circuit Court of Appeals, which over- ruled an employer's contentions that employees who led a work stop- page like that of the eight miners in the instant case, either quit or were guilty of insubordination rendering them ineligible for re- employment. The Court sustained a holding by this Board that the employees were discriminatorily discharged, in part because they 'IN L R B v Mackay Radio d Telegraph Co, 304 U. S 333 , rev'g 92 F (2d) 761, 87 F. (2d ) 611 (C C. A. 9), and enf'g Matter of Mackay Radio & Telegraph Company, etc. and American Radio Telegraphists' Ass'n, etc., 1 N L R B 201 , N L. R. B. v The Good Coal Company, 110 F. (2d) 501 (C C A 6), cert den, 310 U. S. 630 And whether or not they remained employees they were 1ikexuise entitled to the Act's protection. N L R B v. Phelps Dodge Corporation, 313 U. S. 177 20 In its brief before the Trial Examiner , the respondent specifically calls the action of the miners on May 22 a strike and characterizes the eight men as strikers in connection therewith 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in concerted activities among themselves to press a griev- ance.21 The majority's characterization of the action of the eight miners as unauthorized is not material. There is nothing in the Act which conditions its protection of lawful concerted activity upon authoriza- tion by a union, and heretofore this Board has rightly held that whether or not such activity is authorized by a labor organization is immaterial. In Matter of Washougal Woolen Mills and Local 127, Textile Workers Union of America '22 this Board made the fol- lowing statement in connection with its holding that the Act protected a walk-out of a number of employees pursuant to a dispute like that in the present case : Whether or not this concerted action was authorized by the Union is, of course, immaterial in this connection . . . Subdi- visions (1) and (3) of Section 8 proscribe discouragement of concerted activity whether such activity is' or is not sanctioned by a majority representative. Moreover, it is perfectly clear that the action of the eight miners was not taken in defiance of the Union. The miners communicated their demand and their ultimatum to the respondent through their duly authorized representatives on the union grievance committee. This union committee, composed of two kiln members and two mine members, was the sole union spokesman to which the employees had continuous access for seeking advancement or betterment of their working conditions, no union organizer being regularly stationed in the immediate vicinity. It was customary for kiln and mine em- ployees to negotiate with the respondent through their respective committeemen, and the respondent itself instituted and conducted negotiations with the kiln committeemen for the preparation and execution of seniority regulations applicable to all the employees. Furthermore, the Union did not disavow or repudiate the action of the eight miners as unauthorized but, on the contrary, immediately supported their action, demanded their reinstatement, called a strike of all the employees when the respondent refused to reinstate them or to negotiate concerning their reinstatement, and as an integral part of its strike aims, adopted the miners' demand for extra help. Under such circumstances, it appears meaningless to me .to character- ize the action of the miners as unauthorized, as do the majority. ai N. L. it. B. v. C. Nelson Mfg. Co., decided June 12, 1941 (C. C. A. 8), 8 L. R. R. 608, enfg as mod., Matter of C. Nelson Manufacturing Company and Harry Semon, et al., 15 N. L R. B. 1051. See also Matter of Washougal Woolen Mills and Local 127, Textile Workers Union of America, 23 N. L. R B 1; Matter of Harmschfeger Oorporatson and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1114, 9 N. L. R. B. 676. 22 23 N. L. R. B. 1. THE OHIO CALCIUM COMPANY 965 The holding of the majority appears, in effect, to be that the collective activity of the eight miners, while peaceful and otherwise lawful, was nevertheless improper and hence not deserving of pro- tection against the respondent's unfair labor practices. But stripped of the mere labels insubordination and unauthorized with which the majority characterize the action of the eight miners, there remains no explanation as to why a peaceful, concerted effort by employees to obtain an improvement in working conditions is unjustifiable. More- over, whether such concerted activity is wise or imprudent, the em- ployer who discriminates on account of it violates the Act.23 The majority, by holding that the lawful concerted activity of the eight miners removes them from the protection afforded by the Act against unfair labor practices, have taken a serious and retrogressive step toward transforming the Act from a statute intended to protect the rights of self-organization and collective bargaining into a measure for restricting the exercise of those rights.24 The refusal to bargain on May 22, 1938: The majority's finding that the respondent did not refuse to bargain collectively with the Union on May 22, 1938, is in my opinion contrary to the facts disclosed by the record. The Union, the exclusive bargaining representative of the employees, asked the respondent on May .22 to reinstate the eight miners, and the respondent replied that it "was not a matter of collective bargaining discussion or nothing else." But the reinstate- ment of discharged employees is in fact a proper subject for collective bargaining,25 and on its face the respondent's conduct constituted a refusal to bargain within the meaning of Section 8 (5) of the Act. The majority's interpretation that the respondent on this occasion fulfilled its duty to bargain in good faith with the Union does violence to the words used by the respondent and also errs by failing to view the respondent's words and conduct in their proper context. As disclosed by the majority's own findings, on May 21 Roy Abel threatened that collective activity would precipitate a shut-down of the plant, and shortly after May 22 Abel said that "the place would never run, by God, under the Union any more." And the main opinion demonstrates that 2J N. L. R B. v. Mackay Radio & Telegraph Company, 304 U. S. 333; see N. L. B. B. v. Good Coal Company, 110 F. ( 2d) 501 (C. C. A. 6), enf'g Matter of The Good Coal Company and United Mine Workers, District 19, 12 N. L. R. B. 136, cert. den., 310 U. S. 630; Matter of Washougal Woolen Mills and Local 127, Textile Workers Union of America, ibid.; Matter of Pittsburgh Standard Envelope Company and Pittsburgh Printing Pressmen and Assistants Union, No. 64, 20 N. L R. B. 516; Matter of Harnisch- feger Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1114, 9 N. L. R. B. 676; cf. Associated Press v. N. L. R. B., 301 U. S. 103, 132; N. L. R. B. v. C. Nelson Manufacturing Co., decided June 12, 1941 (C. C. A. 8), 8 L. R. R. 608, enf'g as Mod., Matter of C. Nelson Manufacturing Company and Harry Semon, at al., 15 N. L. R. B. 1051. a' See my dissenting opinion in Matter of The Firth Carpet Company and Textile Workers Union of America, 33 N. L. R. B 191. 25 Matter of Washougal Woolen Mills and Local 127, Textile Workers Union of America, supra, footnote 121. 451269-42=vol. 34-62 r, 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and after June 1938 , less than 2 weeks later, the respondent refused to bargain collectively with the Union with regard to the same matter which it refused to discuss on May 22, namely, the matter of reinstating striking employees. Viewing this conduct realistically, it seems clear that the respondent was determined to discontinue all collective bar- gaining relationship with the Union and that its discrimination and refusal to bargain on May 22 were steps designed to effectuate that determination. Thus, in addition to finding , as does the Board , that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act between February 7 and 15, and within the meaning of Section 8 (1), (3), and (5) shortly before, on, and after June 2, 1938, I would find also that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act before and during the strike of February 20 to April 27, 1938, and that the respondent en- gaged in unfair labor practices within the meaning of Section 8 (1), (3), and (5) on May 22 , 1938. I would find further that, from and after May 22 the second strike was caused by unfair labor practices. In determining whether the Union represented a majority of the em- ployees during and after the second strike, I would not count as em- ployees persons hired after May 22 because such persons were hired during the course of a current labor dispute '26 and because such strike was caused and prolonged by unfair labor practices.27 Since the strike was caused and prolonged by unfair labor practices , I would find that the respondent 's failure and refusal to reinstate all 48 of the striking employees upon their application on June 2, if necessary by displacing persons hired on or after May 22, constituted discrimination against the 48 strikers , irrespective of whether or not their former jobs were vacant on June 2. 28 In this connection I also agree with the main opinion's findings of discrimination , in that the respondent did not reinstate any of the strikers although it admittedly had some vacant jobs. I would enter a reinstatement and back-pay order with regard to the eight miners as well as the other strikers ,29 and I would predicate ^s See my separate opinion in Matter of The Rudolph Wurlitzer Company and Piano, Organ and Musical Instrument Workers' Union, Local 1190, 32 N 1, R B 163 nCf. Matter of Acme-Evans Company and Federal Labor Union, etc, at al, 24 N L. R B 71; Matter of Horace G. Prettyman, et at and International 9'ypograpuca'l Union, 12 N L R. B 640 28 Matter of Black Diamond S. S Corp. v. N. L It. B, 94 F ( 2d) 875 (C. C. A. 2), ceit den, 304 U S 579; American Mfg Co v. N L It. B, 106 F (2d) 61 (C C A 2), aff'd as mod.,-309 U. S. 629 ; Matter of Stewart Die Casting Corp. and United Automobile Workers of America, etc, 14 N L. R B 872, enf'd as mod , Stewart Die Casting Corp v N L R B, 114 F ( 2d) 84 (C C A 7), ceit den, 312 U. S 680 See also Matter of Jeffery-DeWitt Insulator Co. and Local No 1453, etc, 1 N. L R. B. 618, enf'd, Jeffery- DeWitt Insulator Co. v N. L R B, 91 F (2d) 134 (C C A. 4), cert. den, 302 U. S. 731; N. L. R. B v. Remington Rand, Inc, 94 F. (2d) 862 (C. C. A 2). cert den, 304 U. S 576 Of course I would not reinstate Roy Leedy who testified that he did not desire reinstatement THE OHIO CALCIUM COMPANY 967 the reinstatement and back-pay order upon the finding that the re- spondent had contravened Section 8 (3) of the Act and also upon a finding that the strike was caused and prolonged by unfair labor prac- tices.30 Accordingly, I would' affirmatively require the respondent to dismiss all persons hired on or after May 22, 1938 , if necessary to reinstate all- 48 striking employees, and to pay back wages to all of them for all time lost since June 2, 1938. MR. WILLIAM M. LEISERSON , concurring in part and dissenting in part: I concur in the Decision and Order in so far as it finds that the respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7, within the meaning of Section 8 ( 1) of the Act . I would dismiss the rest of the complaint, as did the Trial Examiner. APPENDIX Joe Ackison Floyd Adkins Perry Aldridge James Anderson Charles Arbough Ernest Bailey Harry Bare Luna Bare George Blagg, Jr. John Brannigan, Jr. Martin Butler Charles Cade Herschel Cade Dan'l Cameron Willard Carmon Winfield Claxon Dewey Depriest Frank Depriest Elroy Dinnen Charles Ervin John H. Ervin James Evans John F. Ferguson Brooks Goodwin Freer Goodwin Roy Justice Roy Kelley Stanley Kelley Roy [Ray] Leedy Frederick [Fred] Martin John McCorkle Estel Middleton Lee Middleton Charles Ratliff George ,Shelton Carl Shope Edwin Sizemore Fred Vickers Perry Willis Lawrence Young 30 See Matter of Western Felt Works, etc , 10 N L R. B. 407, at pp . 447-448 etc. and Textile Workers Organizing Committee,