East Texas Steel Castings Co., Inc.

National Labor Relations Board - Board Decisions

May 26, 1954

108 N.L.R.B. 1078 (N.L.R.B. 1954)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce with- in the meaning of Section 2 (6) and (7) of the Act. Recommendations omitted from publication. EAST TEXAS STEEL CASTINGS COMPANY, INC. and UNITED STEELWORKERS OF AMERICA, CIO. Case No. 16-CA-475. May 26, 1954 DECISION AND ORDER On November 9, 1953, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above -entitled proceeding, find- ing that the Respondent had engaged in and was engaged in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Respondent had not engaged in certain other alleged unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of the Act. Thereafter, exceptions and briefs were filed by the Respondent, the Union, and the General Counsel.' The Board was reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case,' and finds merit in the exceptions of the Respondent. The Board accordingly adopts the findings, conclusions, and recommendations of the Trial Examiner only to the limited extent indicated below. 1. The Trial Examiner found that the Respondent violated the Act in discharging Jackson, Noland, and Ivey. We find merit in the Respondent's exceptions. (a) Jackson: As the Trial Examiner found, Jackson was discharged by Foreman Jones upon threatening the latter with an iron bar. Jackson had returned to the plant after the end of his shift. Because other employees were then working in the area where Jackson was idling, Jones asked him to leave. Jackson did not do so. With a tool which he had in his hand, Jones emphasized his instruction to Jackson to leave, and started to lead Jackson out of the plant. But again instead of obeying this reasonable request, Jackson seized an iron bar and threatened Jones. Because of this threat of physical i The Union also filed a motion to reopen the hearing with respect to the unfair labor practice strike allegations. 2 The Respondent's request for oral argument is hereby denied, in view of our dismissal of this proceeding on the merits and as the record adequately reflects the issues and the positions of the parties. 108 NLRB No. 143. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1079 violence, Jones discharged Jackson. However, Jackson was a prominent union leader, and for that reason alone the Trial Examiner inferred that Jones was motivated by union animus when he asked Jackson to leave the plant, and that Jackson's use of the iron bar to threaten Jones was entirely justified as a matter of natural and restrained self- defense. We find no warrant in the evidence for the Trial Examiner's sweeping inference that Jackson ' s seizure , of the iron bar to threaten Jones was justified, particularly in view of the fact that Jones was already leading Jackson out of the plant when the incident occurred, and there was no threat for Jackson to defend against. We do not believe that violence or threats of violence should be encouraged by a governmental agency charged with fostering industrial peace and remedying discrimi- nation by lawful processes. We find insufficient evidence in the record to sustain the Trial Examiner's finding that the discharge of Jackson violated the Act. (b) Noland: The record shows and the Trial Examiner found that Noland had a bad record for frequent absenteeism from work. According to the Respondent's written records which were received in evidence, he was discharged by Foreman Stevens because of his excessive absenteeism ; the records also stated that he could be rehired at some other time. The Trial Examiner nevertheless found that Noland was discharged because he acted as spokesman, a few days before his release, for the employees in his department who struck in protest over another discharge. The Trial Examiner in- ferred that such activity of Noland "weighed more heavily in the decision to fire him" than did his absenteeism, and that despite the absenteeism record the Respondent would not have discharged him absent Noland's participation in the con- certed activity. The Respondent strongly contends that there is insufficient basis on the record to support the Trial Examiner ' s inference of illegal motivation. We find merit in this contention. The Respondent's regularly kept records are direct and probative evidence relating to the reason of Noland's discharge. We deem it also highly significant that the record contains no evidence that Foreman Stevens, who discharged Noland, knew that the latter had acted as spokesman for his department. We do not believe that the record can reasonably support the conclusion that the Respondent used Noland's absenteeism as a pretext to cover an illegal discharge . We find the affirma- tive evidence insufficient to support the complaint allegation that the discharge of Noland constituted a violation of the Act. (c) Ivey: As the Trial Examiner found, Foreman Jones issued a personnel report or warning slip to Ivey stating that he would be replaced unless he stayed on the job and paid closer attention to his work, and told Ivey to sign it. The Respondent's published rules stated that failure to sign a warning slip was cause for discharge , as was failure to sign 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any kind of slip that did not misrepresent the facts. Indeed, other employees had been discharged for refusing to sign a warning slip. Nevertheless, Ivey stubbornly refused to sign the slip, on the ground that it did not "fit" him. Jones there- upon discharged him, and the Respondent's records state that the discharge was for refusing to sign the slip. Again, Ivey was a union member, and the Trial Examiner inferred that because of ambiguity created by the two rules about signing various slips, the Respondent discharged Ivey "without sufficient reason," and that the Respondent's real reason was "antiunion bias." We find no warrant in the record for the Trial Examiner's inference. Rather, we are of the opinion that Ivey's defiant refusal to sign the warning slip was the reason for his discharge. 2. We agree with the Trial Examiner's finding that the Respondent did not violate the Act either in discharging Hollo- way or in the course of its negotiations with the Union. 3. The other unfair labor practices in issue are two state- ments by Foreman Jones. One, which was made to employee Jackson apparently during working hours, was that Jackson was soliciting employees for the Union while at work and would be discharged unless he mended his ways. The other, which was made to employee Ivey also apparently during working hours, was that some of Ivey's talking was known to be about the Union, and that Ivey was a good worker and would do okay if he stopped talking to other employees about the Union. Particularly in the absence of other unlawful conduct, we do not agree with the Trial Examiner that these two statements by a single supervisor, which are ambiguous at best insofar as nonworking time was concerned and contrary to the Re- spondent's explicit neutrality instructions to its supervisors, warrant a finding that the Respondent violated the Act. 4. As set out in detail in the Intermediate Report, the em- ployees listed in Appendix A attached to the Intermediate Report struck on February 19, 1952, after the discharge of Jackson, Noland, and Ivey. The complaint alleges that this was an unfair labor practice strike, and that therefore the Respondent's refusal to reinstate the strikers when uncon- ditional application to return to work was made on their behalf on February 27, 1952, was an unlawful discrimination against each of them. Since we have found that the discharges were not dis- criminatory, the strike was an economic strike and therefore, inasmuch as the strikers had been permanently replaced by the time they abandoned the strike, the Respondent was under no obligation to reinstate them.3 This disposes of the issues in the case,but the Board deems it necessary to correct certain misconceptions of the Trial Examiner which are disclosed by his report. Because he 3 See, for example, Partee Flooring Mill, 107 NLRB 1177. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1081 believed the discharges preceding the strike to have been unlawful, the Trial Examiner stated on the record, at the close of the General Counsel' s case , that the employees had engaged in an unfair labor practice strike. Despite this pre- mature opinion, which we have rejected, he nevertheless granted the Respondent's motion to dismiss the allegations of the complaint that the Respondent unlawfully discriminated against the strikers by failing and refusing to reinstate them upon application. Consequently, this issue was not litigated further. The General Counsel and the Union except to this ruling. This conclusion is immaterial in view of our dismissal of the complaint. However, for clarification and in the light of the Trial Examiner's conclusion as to the nature of the strike, we point out that the Trial Examiner's ruling on the Respond- ent's motion was clearly erroneous. The Board reaffirms that the right of unfair labor practice strikers to reinstatement without regard to replacement upon their unqualified offer to abandon the strike is well established.' The Trial Examiner's attempt to justify his ruling indicates a misconception of the established legal principle covering this situation. He stated in his report that the unfair labor practice strikers (improperly designated by him) were not entitled to re- instatement despite the unconditional application made on behalf of them all because they did not also prove when or whether each one was replaced; because they did not also apply at the gate; because they did not rest on their mass application but also ap- plied by separate letters, thus waiving the refusal of their mass application; and because they did not also agree that the Re- spondent carried out its threat to reinstate as new employees those whom it tardily reinstated. None of the grounds asserted by the Trial Examiner would have been sufficient to purge what would have been an unlawful refusal of reinstatement if the strike were in fact an unfair labor practice strike. Although the Trial Examiner's ruling was thus clearly erroneous, it is equally clear that it was not prejudicial, in view of our finding that the strike was economic and not an unfair labor practice strike. We have deemed it necessary to allude to this issue to make it amply clear that we do not adopt the Trial Examiner's conclusions as to the rights of unfair labor practice strikers. [The Board dismissed the complaint.] Intermediate Report and Recommended Order The complaint herein , as amended at the hearing , alleges that the Respondent has violated Section 8 (a) (3) of the National Labor Relations Act, as amended , 61 Stat. 136, by discharg- ing and refusing reinstatement to Clemons Robinson , Peach Holloway , George Ivey, Jr., 4 N. L. R. B . v. Mackay Radio & Telegraph Co., 304 U . S 333, 345. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Willis D. Noland, and Eddie George Jackson in January and February 1952, and on February 27, 1952, and thereafter, refusing reinstatement to 62 employees listed in Appendix A attached hereto; Section 8 (a) (5) by refusing to bargain collectively with the Union; and Section 8 (a) (1) by said alleged acts and by interrogating and threatening employees concerning union activi- ties and keeping such activities under surveillance. The answer denies the allegauons of un- fair labor practices, and alleges that some employees were discharged for cause and others were not qualified to perform any available job. A hearing was held before me at Longview, Texas, from June 19 to July 8, 1952, inclusive. Pursuant to leave granted to all parties, briefs were thereafter filed by the General Counsel, the Respondent, and the Union, the time to do so having been extended. During the presentation of his proof, the General Counsel moved to dismiss the complaint as to Clemons Robinson and Grover Siegh. At the conclusion of his case-in-chief, he moved to dismiss subparagraphs A. B, C, and F of paragraph 14 of the complaint. The motions were granted. At the latter point, I granted the Respondent's motions to dismiss the allega- tion of surveillance and the allegations of discriminatory refusal to reinstate the employees listed in Appendix A attached hereto as alleged in paragraphs 7 to 11, inclusive, of the com- plaint--for failure of proof, the reasons being stated on the record, i The General Counsel's request to the Board for special permission to appeal from the latter dismissal has been denied without prejudice to his right to raise the issue by exceptions to this report. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Respondent, a Delaware corporation with its principal place of business in Longview, Texas, is engaged in the manufacture, sale, and distribution of steel castings and related products; that during the calendar year 1952 it purchased raw materials valued at more than $200,000, of which 12 percent was shipped to its plant2 in Longview from points outside the State; and that during said period it sold products valued at approximately $1,000,000, of which 28 percent was shipped from the plant to points outside the State. I find that the Respondent is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES References hereinafter made to the evidence, not ascribed to named witnesses, represent uncontradicted testimony, or findings where conflicts have been resolved; findings are made herein on the basis of reliable, probative, and substantial evidence on the record considered as a whole and the preponderance of the testimony taken, and evidence in conflict with the findings which is not discussed has not been credited. I have accepted as credible the testi- mony of some witnesses in part only; rejecting portions, I have felt warranted in crediting other portions of their testimony. After a hearing in October 1951, the Board found 3 that the Respondent had violated Section 8 (a) (5), (3), and (1) of the Act. The finding of refusal to bargain was based on unilateral adop- tion of an incentive plan in violation of the duty to bargain concerning it; the discrimination consisted of discharge of 12 employees and refusal to hire another; and the independent inter- ference found consisted of surveillance, interrogation, and threats concerning union activi- ties and discriminatory application of a physical examination program. 'Further reference to this is made infra. 2 Ttie Respondent assumed ownership of the plant on or about February 11, 1951. Although several times referred to, no issue was developed at the hearing concerning the change of name or ownership. Not only did employees continue to serve through the change, but work and other activities were referred to in the testimony without distinction between the periods mentioned. 399 NLRB 1339. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1083 In connection with the alleged discharges and the refusal to bargain, the facts and the decision in the earlier proceeding are not helpful here. As noted infra, the evidence adduced in this proceeding concerning the discharges indicates whether or not they were discrimi- natory without resort to or reliance on the discrimination found to have occurred 2 years ago. Nor do I feel warranted in concluding that the bad faith found as the result of unilateral installation of an incentive plan continued into the negotiations which we shall herein consider. The Respondent's attitude there, as described in the previous report, was markedly different from that which it here displayed. To decide that on the one hand the Respondent underwent a change of heart and of basic attitude or on the other that it was here only more circumspect is to decide the issues before us. There is no warrant for selecting either of these alterna- tives in preference to the other or for relying on either in making findings on the evidence here adduced. (I am not now undertaking to state any general proposition: what I have said is based on the situation before me.)4 I recognize that it may be proper in some cases "for the Board to take account of the prior history of the Company's labor relations, as disclosed in the prior record of which the Board might take judicial notice. The ultimate issue whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence." 5 But the mass of evidence here received indicates persuasively the finding which should be made, and that without recourse to the prior record. Or it may be stated differently that the weight of the testimony here received is not overcome by the prior record. With respect to the incentive plan, and unlike the previous case, there is no claim here of extension of the plan to other departments as an unfair labor practice, except for reference in the General Counsel's brief to adoption of the plan in the floor molding department about the end of December 1952, by which time the bargaining impasse had been established; nor did the Union ever protest this. The earlier adoption of the plan is not before us.6 The evi- dence relating to the plan in this case concerns the negotiations and whether they were conducted in good faith; and while the earlier motive may be relevant to the issue of later good faith, the evidence here concerning the discussion of the plan is direct and itself suf- ficient under the cases for a finding with respect to good faith. A. The alleged violation of Section 8 (a) (5) The Board in the earlier proceeding adopted previous findings that the following classifica- tions of employees at the Respondent's Longview plant constitute an appropriate unit for the purposes of collective bargaining : All production and maintenance employees, including the storeroom, billing, and production clerks, the melters, the chief chemist, chemists, and chemist trainees , but excluding the metallurgist, guards, clerical employees, and super- visors as defined in the Act. It was alleged herein and admitted and I find that in or about September 1951, a majority of the employees in the aforesaid unit designated the Union as their representative for the purposes of collective bargaining with the Respondent. It was further alleged and I find that at all times since said date the Union has been such collective-bargaining representative. While the answer denied the latter allegation, there is no evidence that the Union has lost its majority, in the face of the presumption that such majority continued.? The Respondent has recognized the Union and has met with it; the issue is not the continuance of the majority, but whether the Respondent bargained in good faith. After the 2 meetings 8 considered in the prior proceeding and with which we are not here directly concerned, the Union and the Respondent met approximately 12 9times, first on 4 "This is not a matter ... for broadside generalization and indiscriminate application. It is rather one for case- to-case determination ...." (Federal Communications Commission v. WJR, 337 U. S. 265.) 5 N. L R . B. v. Reed & Prince Mfg. Co .. 205 F . 2d 131 (C. A 1). 6See footnote 21, infra. 7 See Celanese Corporation of America , 95 NLRB 664. 8Murphy represented the Union at these meetings. 9 From Ward ' s testimony and a stipulation , the first 4 of these meetings would be placed on September 26, October 8, November 14, and December 6. Fleeger did not attend the Septem- ber 26 meeting, but testified with apparently greater assurance (with respect to all dates) to 1 on November 7. It is unnecessary to determine whether there were 12 or 13 meetings or whether Ward attended 4 or 5. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 26, 1951, and for the last time about the middle of March 1952. Two of these meetings were devoted to grievances; two to certain discharges, requested reinstatement, and a strike and its termination; the others to greater or lesser degree involved discussion and negotiation of contract proposals. The detailed testimony concerning these meetings includes many items which cast no light on the issue of good-faith bargaining. Thus Ward, who with a committee of employees and other union representatives, appeared for the Union at the first four of these meetings, testi- fied that at the first the Respondent, declaring that it could negotiate with less feeling if they were withdrawn, asked the Union to withdraw the charges in the proceeding then pending; but the Union submitted a proposed contract, on which there was some slight discussion, and it is nowhere claimed nor does it appear that the Respondent conditioned negotiation on the withdrawal of charges. We shall limit our consideration to those details of the discussions which are relevant to the issue and point to decision thereof. (To avoid misapprehension, I shall stress the obvious and state that I have neither overlooked nor ignored the other items; but I prefer to set aside the unnecessary after reflecting on it rather than after it has been spread out for many pages in an Intermediate Report. In this I am of course assisted by the contentions wluchthepartieshave made at the hearing and in their briefs.) Touching "no question which, in the view I have taken, it was not absolutely necessary for me to pass upon, ... I have avoided no question upon which the validity of (this recommended order) depends." w Ward submitted a proposed contract at the first meeting. This was the only complete proposal ever submitted by the Union; additional notations were later submitted for incorporation. It included a checkoff provision, but not the Union's form of authorization, which was sub- mitted at the second meeting. When Fisher, on behalf of the Respondent, remarked on the absence of a wage proposal, the Union asked for a copy of the job classifications and descrip- tions so that it could prepare a wage proposal. Ward testified that job classifications were submitted by the Respondent on or about October 5, before the next meeting, but they were never discussed. After very brief reference to the contract at the second meeting, Ward noticed a secretary or stenographer taking minutes for the Respondent. He objected to this, and told Fisher that minutes were not necessary. Fishes replied that they were not minutes but notes; but the stenographer appeared to Ward to be taking everything down. He then asked Fisher whether, to the extent that she was taking notes, the Respondent would furnish the Union with a copy. To this Fisher replied that it would take too much time to type the notes, it would entail too much work to make a copy, and the Respondent would not pay for the Union's copy. When Ward said that the Union would pay for a copy, Fisher declared that it was up to the stenographer. The taking and transcribing of notes were not"up to" the stenographer, but were controlled by the Respondent. Even if she could be considered a free agent to provide a copy to the Union (and this is an unwarranted assumption), her relationship to the Union would clearly be different from that between herself and the Respondent. Saying that it was up to her whether she would provide a copy for the Union would not exculpate the Respondent from any violation in this connection. Nor would the conclusion be different if, as Fleeger, the Respondent's general manager, testified, Fisher said that the Union could have a copy of the notes if they were transcribed. Fisher stated that the notes might not be transcribed, and that the Union was free to get its own reporter. (At the next meeting, the Union did have a stenographer, who took "some notes." This, like Ward's statement testified to by Fleeger that there should be no notes unless they were read and initialed by both sides, is not consent but resignation to the Re- spondent's insistence, as Ward expressly declared.) Fleeger testified that Fisher suggested a court reporter instead of the Respondent's stenographer if the Union paid half the cost. The meeting did not get beyond this discussion. At the beginning of the third meeting, Ward cited to Fisher the Board's decision-in Reed & Prince Manufacturing Company,i and re- peated his objection to the stenographer's taking of minutes.12 laDred Scott v. Sanford, 19 How. 393, 633. 1196 NLRB 850. 12 At this and the following meeting, repeating his objection, Ward declared that the Union would •also keep minutes since it could not prevent the Respondent from doing so. Lee, who replaced Ward after the fourth meeting, testified that no objection was made at the first meeting which he attended, but that Burns, the Union's district director, did object at the following bargaining session , citing Reed & Prince, but stating that he wasn't "going to quibble around too much (or) ... all day on this." EAST TEXAS STEEL CASTINGS COMPANY, INC. 1085 If the taking of a stenographic record of a bargaining session is evidence of bad faith as indicating a desire to build a defense to anticipated refusal to bargain charges , 13 rather than an attempt to avoid dispute as to what was said , such bad faith must be found regardless of whether the notes are transcribed . The "atmosphere " is created by the taking of notes, not by their later transcription . Nor would violation be avoided by a declared uncertainty whether the notes would be transcribed so long as the decision is to be unilateral and the Respondent 's,'a Neither would the Respondent 's statements concerning arrangements for future meetings relieve it of any liability for failing to bargain in good faith at earlier meet- ings; and insistence on notes , if itself evidence of bad faith and a refusal to bargain, would be no less such because both sides have an opportunity to procure them. But bearing in mind that insistence upon a stenographic record to the extent which was noted in Reed & Prince is not "in itself conclusive eviduice of bad-faith bargaining." it is not altogether clear that the events in that connection in the instant case would prompt a finding of bad faith "when the entire bargaining pattern of the Respondent is viewed in its totality." As noted, the Union at the meetings, cited the Board 's decision in the Reed & Prince case; since when , the court, enforcing15 the Board's order , declared itself "not inclined to agree" on this factor. Not assuming that the Board will modify its position in that respect, but noting the distinction which may be found in the circumstances of this case , I find no evi- dence of bad faith in this connection , basing such finding on two grounds, either of which is sufficient : the Respondent acted in good faith , using a stenographer as a precaution which might prove unnecessary (hence no transcription ); and the Respondent 's entire bargaining pattern viewed in its totality in .no wise militated against a friendly atmosphere or free ex- pression by the parties . No intensive study of the Reed & Prince case is necessary to point up the marked differences between the attitudes and atmosphere there and in the instant case. After renewal of the objection to the stenographer at the third meeting , there was a lengthy discussion concerning two welders who had been laid off in September . Except for a charge of insincerity made in the General Counsel 's brief and subsequent reference to it , this matter is not directly in issue is here . But the testimony by the Union that they were not notified to return , and the proof that they had been offered jobs as laborers on October 8 and as welders on November 23, suggests at least that the Union 's affairs were not being efficiently handled, with the result that its representative was not adequately informed . A copy of the several communications was sent to Ward, and one set was receipted for by Murphy for him , although Ward disclaimed knowledge of them. This matter of availability of information and reliability impinges on the question of reinstatement of strikers , infra. (As will be seen , the Union did not have the necessary information there either.) Neither Ward nor Lee seemed adequately prepared to testify . Their cross-examination brought out corrections and many more details of the meetings . Although he appeared to recall discussions without hesitancy , Ward 's memory was poor even on direct examination with respect to names and concerning dates of the meetings . He testified variously concerning who attended the fourth meeting , did not know the date when he arrived in Longview , and had no knowledge of the meetings which Murphy had held. His recollection concerning the number of meetings which he attended prior to October 9 was later refreshed . Further, his testi- mony that he "insisted on ... having continuous negotiations if it could be arranged until" an agreement was reached on a contract , and that "at the end of every meeting and over the telephone several times and by letter several times , and even by telegram several times" (later modified ) he spoke of his readiness to meet at any time implied that the Respondent i3Reed & Prince Manufacturing Company , supra 14 As we evaluate intent and attitude at the time they were made manifest , we do not refer to subsequent events to determine the character of the act and the atmosphere which it created. Here, failure to prepare a complete transcript may have been due to any of a number of reasons ; it would not negate any bad faith earlier indicated. iaN. L. R. B. v. Reed & Prince Mfg. Co. , 205 F. 2d 131 (C. A. 1). i6 This discussion did not go beyond insistence and denial that recall notices had been issued. The parties never got to the question of the kind of job offered. As noted , the Re- spondent ' s statement of the facts at the meeting was correct. It was not called upon by the Union to go further . This is hardly a matter of refusal to bargain . ( Further reference to these welders is made infra in connection with alleged refusal to discuss the independent discharges.) 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was guilty of dilatory tactics in arranging meetings; this the General Counsel specifically disclaimed and is not in issue. Lee, who was also called to testify concerning the negotiations, declared his inability time and again to recall discussion of various clauses in the proposed contract, who attended the various meetings, or whether Fleeger explained how the time study (which appeared to be the salient feature and stumbling block in the negotiations) was prepared. "I don't recall" and it seems to me" spiced his testimony. Of some relevance is Ward's testimony that it was Fisher who suggested that they "talk about something else," other than the welders at the third negotation meeting. As digression and avoidance of contract discussion indicate bad faith, so does direction of attention to the stated purpose of the meeting point to good faith. (This "indication" must give way to or be supported by the more substantial evidence to be noted.) At the fourth meeting, on December 6, with a Federal conciliator present, the parties went through the Union's contract proposal, discussing each clause at length. Ward testified that "there was somewhere a general agreeing as far as their minds were concerned, but about the time he] thought [they were] agreeing. Mr. Fisher would say, 'Of course, there may be some more corrections that ought to be in here. We don't know,' so at the end of each clause [he] didn't know whether hewas close toan agreement or not ...." In each case Fisher would say that he would rewrite the clause, and Ward "didn't know what Fisher] intended to put in there." More to the point than Ward's general impression is his testimony concerning the various provisions. Although not certain, he thought that agreement had been reached on the intro- ductory paragraph or preamble in the Union's proposal. With respect to article I, bargaining unit, no agreement was reached, the Union accepting the unit as described in the Board's certification while, as he testified variously, the Respondent was to describe the unit in a counterproposal to be submitted by Fisher, and later he did not recall what the Company's position was at this meeting with respect to the unit. (Fleeger testified that it was the Re- spondent's position that the unit should be as in the Board's certification, and that the Union's proposal was not substantially different.) Ward testified that Fisher declared that article II, discrimination, would meet the Union's approval after it was rewritten. There was no indication of agreement on article III. checkoff. Wim respect to article IV, wages, the Respondent offered only to maintain current wages as a minimum for 1 year, with no shift differential. (Fleeger testified that the Respondent suggested a 1-year contract, while the Union wanted 2 years. According to him there had been a long discussion at the meeting of October 8 concerning payment of shift differentials.) Ward asked for a copy of the incentive plan, which he first testified the Respondent dis- cussed and, later, it did not discuss." To this point, the Union had apparently made no wage proposal beyond the request for shift differentials, Ward explaining again that the job classi- fications had been sought for that reason. (But those classifications had been received 2 months before!) Nothing tangible was agreed on under article V, hours of work. Under article VI, overtime, the Union proposed a minimum payment of 4 hours for employees reporting when work was not available; this was scaled down tentatively to 2 hours, but Ward was not certain whether as far as the Respondent was concerned it was to be 1 hour or 2. (Fleeger testified that the Respondent offered to give 4 hours' time, but it was not agreed upon; he did not know why.) No agreement was reached on article VII, vacations, or with respect to seniority or layoff and recall under article VIII, seniority. Ward thought that an understanding had been reached concerning probationary employees, but wasn't certain since it was to be redrafted. There was no agreement on adjustment of grievances, article IX, although Ward under- stood that some company changes would be all right, including a provision which was not clearly stated but appears to have been that a grievance committee meeting could be held with or without a union representative. (This was more clearly presented at the next meeting, infra. No agreement was reached on article X, strikes and lockouts, or article XI, holidays, the Respondent agreeing only to six holidays without pay. Nor was there agreement with respect to article XII, discharges and layoffs or suspensions, article XIII, sick pay, article XIV, termination, or article XV, supervisors. rr In the latter connection. Ward and Lee distinguished between a discussion as an attempt at evaluation and a "scanning through" or explanation, which they did not understand. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1087 Under article XVI, bulletin boards , the Respondent agreed to post notices which met with its approval . ( The testimony concerning subsequent negotiations clarifies this characteriza- tion somewhat .) Ward testified that with respect to article XVII , management , Fisher said that he might want to change the wording , but did not say in what respects . As for article XVIII, safety and health , the Company said something about an insurance plan; he thought but was not certain that it had an insurance program in effect . He did not recall whether at the meeting the Union referred to an insurance company with which it had dealings. It was agreed at that meeting that Fisher would draft and submit a counterproposal which would include the points on which agreement had been reached . The counterproposal was submitted on or about December 13, between this meeting and the next , which was held on December 21.18 Lee testified that on the latter date , his first meeting and the fifth in our series, only a few articles were discussed . On the checkoff, "The company's position was that they were not going to do the union 's work." As for seniority , the Respondent insisted on limitation to the date when it acquired the plant, early in 1951 , "but they would not agree to provide for seniority covering promotions , layoffs, and so forth." The Respondent refused to arbitrate grievances. As Lee testified, its position was as follows: "The employee along with the union representative , if he so elected , to take the grievance up with the foreman . If he was unable to settle the grievance , I believe it was permissible to have a representative of the union meet with him with management. If we could not settle the grievance in that step , we could resort to the court ." The Union suggested omission of its provision against strikes and lockouts unless there was agreement on arbitra- tion. Grievances were discussed on January 18, 1952 . The seventh meeting was held on the fol- lowing day, when the contract proposals were again discussed in detail. Lee testified that tentative agreement was reached on several clauses; it was his impression that if full agree- ment were reached on the other items, the matters tentatively agreed on would be included without further discussion of these . Fisher agreed to redraft the matters on which they tentatively agreed and to make a counterporposal covering the items in dispute , according to Lee. (Fleeger described this as "a proposal covering the parts that had been agreed to....") The acts and intent of the parties from this point on can probably best be judged if we remain with each clause through the meetings of January 19 and February 8. The preamble was tentatively agreed upon on January 19 and carried with insignificant change into the draft which the Respondent submitted on February 8. The provisions concerning bargainipg unit and discrimination had also been tentatively agreed upon , the latter with minor changes, and were carried over into the Respondent 's second draft. The Respondent had refused to agree to a checkoff , and this clause was omitted from the redraft. Any agreement by Fisher to prepare a second draft and counterproposals was not breached where, as in the case of the checkoff which the Respondent had definitely rejected, the counterproposal omitted the item entirely . 19 The counterproposal " included" no checkoff. Although Lee testified that he had expected new proposals on the articles in dispute, he did not indicate what compromise he expected between checkoff and no checkoff . He testified later that at the February 8 or a later meeting (there was only one later at which a contract was discussed ) Fisher "spent a lot of time talking about howr the Union ] could collect money instead of the checkoff." Lee further described this episode as follows: "As I remember, in his conversation he suggested maybe the company could pay the employees in cash and possibly put the dues in one envelope and pay another envelope , and we could have a man over there to collect them that way." But when asked whether he would agree to do that , Fisher replied that the Respondent would not . That Lee did not suggest or agree to omission of a checkoff provision would not exculpate the Respondent from any bad - faith offer or suggestion. But although this testimony stands uncontroverted, Lee's difference, noted in his statement as quoted , and submission of the statement toward the conclusion of a lengthy cross -exami- nation almost by accident suggest that this did not appear to him, experienced as he is, to be 18 Lee testified vaguely to statements allegedly made at an earlier nieetinit that day which he did not attend. Fleeger testified that a union representative was unable to attend and that no meeting was held on that day. 19 The counterproposals appear to have included matters which were not embodied in the Union's proposal, reference being made on the record to differently numbered clauses with some not described. No conclusion can be drawn as to tlieze latter. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a provocative suggestion made in bad faith . Nor is it clear how "an hour at least " was spent discussing it. This incident hardly warrants a finding of refusal to bargain. With respect to article IV, wages, the Union on January 19 stood on its earlier request for a 10-cent increase in all classifications . The Respondent , Lee testified , would try to have an answer at the next meeting (he did not thereafter dispose of this ); it wanted agreement on the incentive plan . According to Lee, the Union "would be agreeable to sit down and try to work out an acceptable incentive plan ," but the Respondent insisted on acceptance without explanation . He testified further that the Respondent 's February 8 proposal in this connec- tion "was the same ... that they had previously given ...... and no agreement was reached. The incentive plan was "again discussed " and Lee declared that he could not understand it or compute wages under it. Then or at a later meeting there was discussion of extension of the plan to other departments. 20 In compliance with Ward 's request at the meeting of December 6, a copy of the incentive plan was submitted to the Union shortly thereafter; Lee admitted, albeit reluctantly, that a copy was in the Union 's possession on or before December 21, when the next meeting was held . The plan had been put into effect in the coremaking department in March 1951, and on August 20 in the molding department , where it was extended to the second shift on Septem- ber 10 , all before the first meeting of the series before us. There was no charge during the negotiations or at the hearing of an unlawful unilateral extension of the plan in derogation of the Union 's rights; nor has any such claim been made in this proceeding .2i At one of the later meetings , as noted , the discussion included the question of extension of the plan beyond the molding and coremakmg departments , the Union objecting, Notice of intent to extend the plan having been given , the discussions did not even approach agreement on the terms then in effect ; the impasse reached clearly covered the question of extension . Nor does it appear that the Union requested that extension be held in abeyance while agreement was sought on the terms of any incentive plan. Lee's testimony in this connection is only that Montgomery, a welder and one of the members of the employees ' committee , objected to its extension to the welding department. Thus the Respondent is not here charged so as to be found liable for unlawfully adopting or extending its incentive plan . Its offense , if any, lies in refusal to bargain concerning maintenance of the plan as a condition of employment. In connection with any such refusal to bargain , two aspects must be considered. the ex- planation or discussion concerning clarity , and negotiation or give-and -take with ' respect to a plan. The testimony of the various witnesses concerning clarity of the plan may be sum- marized as follows: When the plan was submitted, and afterward, the Union claimed that it could not understand it and that neither the employees nor their representatives were able to compute wages from the data submitted . Fleeger attempted at length to explaint2 the 20 Neither Ward nor Lee had knowledge of extension of the plan after commencement of the negotiations. 2iSee supra, at footnote 6. We do not here pass again on any refusal to bargain which was found in the previous proceeding. Nor is a failure to "rectify" an earlier refusal (argued in the General Counsel's brief) the subject of this proceeding. Granted the finding in the earlier case as declared by the General Counsel "that the incentive plan had been developed wholly without union participation and consultation" and that it had been "carried . . into effect unilaterally without consulting the union . . ," we are here concerned with what thereafter occurred. The question is. as distinguished from the earlier violation and as the General Counsel declares, whether there was a "continued refusal" to bargain or a "con- tinuing to refuse." We are now to determine whether by the commission or failure to commit any new act the Respondent refused to bargain, failure (without introduction of any new element) to correct any violation previously found is referrable to the previous proceeding but is not before us now. if issue be taken with this rough attempt to state a general proposi- tion without periphrastically considering every possible facet, the question can be stated thus: What basis is there for a finding of violation beyond those previously made plus the passage of tune? The instant proceeding was presumably brought and evidence was sub- mitted to show further violations In fact, the matter of earlier violation and correction was not here raised or considered beyond reference to the fact that there was a prior proceeding. 22Ilaving violated the Act, as found in the previous proceeding, by putting the plan into effect without consulting the Union, the Respondent nevertheless had every right to propose and "attempt to sell" it as the General Counsel argues that it tried to do. The Union was simply not prepared to discuss it. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1089 plan and its workings, but Lee maintained that he still could not understand It. 23 Which ele- ments of the plan were unclear, unsatisfactory, or objectionable was never indicated by the Union, much less explained. There could thus be no intelligent negotiation. Testimony by Nance, assistant to the general manager and ui charge of office records, indicated the difficulty of computing earnings under the plan. 24 But the Respondent is not liable because of difficulty in computation or responsible for the inability of employees or union bargaining representatives to understand the plan. It has not been shown that the plan was needlessly complex, that necessary information was withheld, or that the data submitted were in fact insufficient. It appears only that the Union's negotiators, 25 admittedly not expert on incentive plans, did not understand this one. Nor did the Union submit the plan to its own time-study experts for analysis or attempt at understanding. There is no evidence that the lack of understanding is attributable to the plan per se or to the Respondent. Neither is this a case where the Union asked for the original time study and the Respondent refused to make it available, or where explanation of specific elements was ever refused. The union representatives' declared inability to understand the plan does not indicate a refusal by the Respondent to bargain in good faith. As distinguished from the question of understanding the incentive plan, consideration must also be given to negotiation of the terms of any such plan. That they are a proper subject for collective bargaining is not to be questioned. But the Union offered neither counter- proposal nor objection beyond the complaint that it did not understand the plan. Lee testified that the Union never suggested any changes in the plan. Burns did suggest a joint time study by the Respondent and the Union with arbitration to follow if they failed to agree. The Union was entitled to a copy of the Respondent's study so that it might check and negotiate con- cerning its terms.26 For the same reasons it was also entitled to an opportunity to make its own study. What result would have been reached had a request been made for either of these, and whether there would then have been any further proposals and a refusal to bargain, we cannot even guess. While a joint study may help to eliminate questions and problems, I cannot hold that a party must engage in such (especially with arbitration as a later step) after it has made its own study and before the other party has undertaken to do likewise for a comparison of such independent studies. The request for a joust study places on the Respond- ent the burden of a second work when the necessity therefor has not been shown. Actually here the Union did not proceed as far as it could and properly should have to obtain the necessary information and test the Respondent's good faith. Admittedly unable to understand the plan, the Union's representatives could not negotiate concerning it. Certaui items, the meaning of which was clear to the Union, did not call for explanation, but might have been the subject of discussion between the parties. As to such, there was no refusal to discuss; there was no request to discuss them, the parties not having passed the explanation stage on other items. Finally in this connection, if any factors were indefinite in that they did not permit definite computation of earnings, such a condition could have been made the subject of negotiation, but again, the Union's representative rested on his inability to understand the language so that there was no negotiation concerning it. Whether someone more expert in this technical field would have been unable to understand the standards and the incentive plan, thus placing a burden for further action on the Respondent, does not appear. The testimony in this connection does not indicate that the Respondent refused to bargain. Concerning hours of work, Lee testified that there was some discussion on January 19, but he did not recall what it was. As to overtime, the Union wanted it paid for after 8 hours 23 That is apparently what he meant when he testified that lie never "got an explanation of how anything worked." I credit the testimony that Fleeger answered questions and explained the plan in detail Lee at one time suggested that he and Fleeger go through the plant "some time," the latter to explain how the plan worked. Fleeger agreed, but this was never done, whether for lack of initiative or whatever reason does not appear. 24 For example, earned hours are evidently computed by dividing production by the rate factor previously computed for the given job. Unlike the Reed & Prince case, supra, the employees here were at that time given a daily record of their earnings 25 There is no evidence that, although questions were asked, they sought explanation of the many terms with which Lee testified he was not familiar (lie was similarly unfamiliar with the operations and the machines used); on the contrary, it appears that Lee did not ask for explanation of various factors, but rather of "the incentive plan as such." 26 Westinghouse Electric Supply Company, 96 NLRB 407. 339676 0 - 55 - 70 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in any 1 day, while the Respondent held out for 40 hours in any week. No agreement was reached on either provision. As to vacations, Lee testified that the Union wanted agreement on 1 week after a year's employment while the Respondent called for continuance of its practice allegedly to that effect but which was not clear to the Union. Although there does not appear to be any substantial difference here, no agreement was reached. Fleeger testi- fied that the Respondent was willing to agree to a week after 1 year with the right to allow extra pay in lieu of Vacation if the plant had to continue in operation during the proposed general vacation period beginning on July 1. On direct examination Lee testified that with respect to the seniority provision to be applied in case of promotion, layoff, or other change of status, the Respondent on January 19 wanted to consider seniority, ability, and "disposition toward performing the work to be performed," while the Union requested that the first 2 factors govern; the Respondent had insisted on a 90-day probation period, but he now thought that it had agreed to 30 days as the Union had requested; yet the counterproposal of February 8 allegedly omitted these pro- visions entirely although, as he at that point testified, they had been agreed upon tentatively. On cross -examination he testified that a leave-of-absence clause in case of military service, as required by law, with another clause concerning attendance at union meetings, and a provision for loss of seniority on quitting or discharge for proper cause, as agreed upon on January 19 were carried over into the counterproposal of February 8. (Although he had before him the Union's proposal and notations made thereon, Lee omitted these later items in his original testimony.) Also on cross-examination he testified thata recall provision was agreed on January 19, with the Respondent to send to the Union a copy of all recall letters; but that the proposal of February 8 added that recalls were to be in inverse order of layoffs, and omitted the provision for copies to the Union. The proposal for inverse order in recalls was quite innocuous. As to the omission of the requirement of copies for the Union, the Respond- ent's counsel maintained that it was unintentional. While omission of a provision for notice to the Union is a substantial variance, it is the only one specifically noted. Further, counsel's statement that it was unintentional is supported by recognition of the practice which the Re- spondent had previously followed (and which the provision would have reflected) when, as noted supra, notice of recall was sent to two employees and a copy of such notice was sent to the Union. Fleeger testified that at the meeting of February 8 "there were some minor changes in wording they felt hadn't appeared in what we had agreed to, and those were again agreed to, and we discussed the same issues that we hadn't agreed to." It can hardly be said that in apparent capriciousness or indifferent disregard of the responsibility which it had assumed to draft the clauses agreed upon, the Respondent in bad faith here fell short of its obligation. I find that the omission here noted does not indicate unlawful intent nor is it per se a refusal to bargain. With respect to grievances, the position of the parties was the same as before on the issue of arbitration at both the January 19 and February 8 meetings, and the Respondent's proposal was carried over into its later draft. The provision on strikes and lockouts was likewise carried over although the Union wanted to omit it since arbitration had not been accepted. Again with respect to holidays there was no change in the respective positions on January 19, and the Respondent's viewpoint was expressed in its redraft. Lee did not recall the dis- cussion on January 19 concerning discharges and layoffs or suspensions, but he testified on cross-examination that agreement was reached on this provision at the February 8 or a later meeting. There was some discussion in January concerning sick pay; Lee did not recall whether the issue was withdrawn, but there was no agreement on it and it was omitted from the Respondent's proposal. Discussion of the termination clause was postponed at the earlier meeting; a proposal was included in the later draft, but was never agreed to by the Union. Lee did not, on direct examination, recall the discussion concerning the article on supervisors, but he later testified that a new article was agreed upon and carried over into the Respondent's redraft. Lee testified further that tentative agreement on bulletin boards was reached on January 19, but that the later draft inserted the word "proper" before "union notices" as material to be posted. This change was subsequently agreed to by the Union, and there is no warrant for assuming that it unlawfully limited the latter's privileges. The Union thought on January 19 that the Respondent's management proposal went far beyond its prerogatives, and the disagreement persisted on February 8; what the proposal was does not appear. With respect to the clause on safety and health, Lee testified that tentative agreement was reached in January after discussion, but that it was omitted from the Respondent's redraft; according to Fleeger, the Respondent agreed at the February meeting to furnish safety equipment. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1091 A grievance meeting was held on February 18, on the 20th there was apparently only a brief mention of the strike, and on the 22nd, as Lee testified, there was no contract dis- cussion. Lee indicated that at the last meeting, in mid-March, the Respondent reneged on an item to which it had previously agreed. But pressed to explain, he referred to the earlier failure to include new proposals in the Respondent ' s second draft . Fleeger testified that at this meeting the Respondent agreed to provide the Union with a roster of all employees every 90 days, on omission of such roster, the Union would remind the Respondent. No roster was ever provided, and the Union never reminded the Respondent about it. In all of this the Respondent appears to have made two slight concessions: to agree to maintain current wages as a minimum for 1 year, and to allow a week's vacation or extra pay after 1 year of employment (not to mention the bulletin board). We cannot judge to what extent, if any, the agreement to furnish safety equipment constituted a concession (It would be straining to call such a point as agreement to 6 holidays without pay a concession.) To say that the Respondent bargained "hard" and made few concessions is not to find it guilty of a refusal to bargain in good faith 27 To summarize, this fine tooth comb examination of the evidence fails to disclose such overt acts as constitute refusal to bargain; and the proof before us falls short of warranting a finding that the Respondent was guilty of dissimulation while appearing to bargain. At the close of his argument on refusal to bargain, the General Counsel in his brief refers once more to the discussion concerning the two welders mentioned supra and adds reference to reinstatement of various discharges, as follows. Again, we should like to say that reinstatement with reference to the welders and the way it was handled is somewhat akin to the way the Respondent discussed reinstatement of all independent discharges in this case There was never any true bargaining with reference to either on the part of Respondent; the only thing which the respondent did, which course of action it always followed, was to await its own pleasure in reinstating the welders, and with reference to the independent dischargees to give any real con- sideration to reinstatement With reference to the independent discharges, Lee testified that at a grievance meeting held on January 18, he asked for the reasons for the discharge of Robinson and Holloway, and Nance admitted that they had been discharged for refusing to sign warning slips The Union wanted them reinstated, but the company representatives said that they had no authority to do that although "it might be different" on the following day, when a negotiation meeting was scheduled. Another "grievance discussion" was held on February 18. The Union "tried to persuade the company to put all employees who had been discharged, return them back to work." Again Nance said that he did not have authority at that time to make any decision. There was apparently no discussion concerning this alleged lack of authority or the advis- ability of someone with authority attending. Lee testified further that when he asked for the reason for the discharges, " it is possible that [Nance] gave [him] a reason or two", again, Nance was to check with the foreman. (It should be noted that whereas only 2 discharges had been discussed previously, there were now 7. There is thus no indicated failure to make a requested or necessary investigation.) It is not clear whether Lee's vagueness and the limited discussion of these grievances reflect his own lack of interest or the General Counsel's rele- gation of the matter to a lesser category as he concentrated on the contract negotiations Whatever the reason, the testimony was slight and vague Later Lee stated that it "seemed" to him that it was agreed on the 18th to meet again on the 20th, by which time Nance was to try to find out why the men had been discharged or see what disposition could be made Another meeting was held on the 20th.28 Lee was "confused on which people were present at which [of two or three grievance] meeting[s] " His only pertinent testimony here was that the Respondent would not agree to reinstate the men who had been discharged, there is no reference to the questions previously allegedly left open: the reason for the discharges, and authority to reinstate On February 22 a "contract negotiating meeting" was held When Fisher, for the Re- spondent, opened the meeting with a suggestion that the Union" offer the employees back to work," Lee replied that he would if the discharged men were reinstated (This was evi- 27 American National Insurance Co., 343 U. S. 395. The instant case is hardly comparable to United Clay Mines Corporation, 102 NLRB 1368. 28Page 618 of the transcript is hereby amended to show this date instead of the 29th. 1 092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dently the only reference to this grievance at any of the negotiation sessions , although why this was called a contract negotiating meeting is not clear since, as Lee testified , no contract negotiations were entered into, and even here the issue was raised by the Respondent.) When Fisher suggested a joint investigation of the discharges , Lee replied that he had already made his own investigation and "suggested that [Fisher ] proceed to make his investigation " To this point there is no suggestion that Lee considered the Respondent remiss or even slow in processing the discharge grievance . There is no evidence that the Union ever charged the Respondent at any meeting with failure to discuss the reinstatements or that it suggested that such failure constituted refusal to bargain. Although Lee' s testimony hardly establishes that the Respondent refused to bargain by a failure to investigate the discharges and to authorize its representative to negotiate rein- statement ( it suggests rather that neither side was diligent in pursuing these matters), it is in order to note the Respondent ' s version . Nance testified that the Robinson and Holloway discharges were discussed at some length in January , and that he stated that the Respondent did not intend to reinstate either man, and that he was asked several questions concerning the system of warning slips, which he explained . He agreed that on February 18 he told Lee that he would check on the facts concerning the removal of several other men mentioned by Lee, and he suggested a meeting the following day, when he would be prepared tc state the Respondent ' s position in each case At Lee's suggestion , it was agreed to meet on the 20th. On the latter date, Nance declared that he thought the Respondent was justified in the action taken and, in response to Lee's question , said that he had authority to reinstate the men if he wanted to do that. Nance did not explain the justification which he claimed , but it does not appear that he was asked to explain 29 The facts here do not indicate refusal to negotiate concerning reinstatements in these grievance discussions , which were apparently incidental to the main stream of the negotia- tions It is therefore unnecessary to pass on the question of law whether refusal to discuss reinstatements should be considered a violation of Section 8 (a) (5). I find that the Respondent did not refuse to bargwin within the meaning of the Act. 30 B. The, alleged violation of Section 8 (a) (3) Without repeating all that was said at the hearing in connection with the dismissal of the allegations concerning the employees listed in Appendix A. some further reflection is war- ranted at this time especially since the parties have covered the matter in their briefs Although I have found that there was no unlawful refusal to bargain, the discriminatory discharge of various employees, also assigned as a reason for the strike of February 19, remains and is sufficient prima facie to constitute this an unfair labor strike, as it appeared to be and was my stated impression at the hearing 3i There are incidental disclosures in the record that various types of work were performed Job descriptions and classifications of the alleged discriminatees and of the new employees are not disclosed , 32 so that there is a complete failure of proof to show whom the new em- 29Cf, Globe-Union, incorporated, 97 NLRB 1026 30 The Noland incident of February 8 is adverted to infra footnote 51. As for Pool's visit to Gaither's home and the message which he left that the latter return to work, the finding is made infra that Pool was not a supervisor. There is no evidence of authorization. Nor does this incident come within the "identification with management" principle. (Cf. Stem-Way Clothing Company, 103 NLRB 1314 Mansbach Metal Company, 104 NLRB 797.) 31 "Where the causes contributing to a strike consist of unfair labor practices and em- ployee desires for wage betterments, the latter should not excuse the employer from the legal consequences that flow from its conduct which transcends the permissible bounds under the ... Act," Berkshire Knitting Mills v, N. L. R B., 139 F. 2d 134 (C. A 3). The evidence does not support the allegation that the so-called "independent" interference or violations of Section 8 (a) (1) of the Act were among the causes of the strike. As for the violations of Section 8 (a) (3) which have been found, it is unnecessary to try the issue whether they did in fact cause the strike, thus making it an unfair labor practice strike, in view of the failure of proof in connection with the mass discrimination. 32 Cf. Textile Machine Works, Inc., 96 NLRB 1333, 105 NLRB 618; Radio Industries, Inc., 101 NLRB 912. Cf. also West Coast Casket Company, Inc., 97 NLRB 820, where the record showed that business increased and that certain new employees replaced strikers. As to the former item, there is a showing to the contrary in the instant case; beyond that, there is no EAST TEXAS STEEL CASTINGS COMPANY, INC. 1093 ployees replaced. 99 On the evidence adduced it cannot be said which if any of the strikers' (including the alleged discriminatees) work was thereafter performed by new employees, and when. As to those recalled , it does not appear that they should have been recalled sooner, or when. The General Counsel appears to seek a finding that there was discrimination against at least some (unidentified) of the alleged discriminatees at some (unspecified) time. The emphasis in the General Counsel 's detailed and painstaking brief on reinstatement to substantially equivalent positions 3' not only ignores the absence of evidence as to the posi- tions held before the strike , whether positions thereafter available were substantially equiva- lent , whether substantially equivalent positions were filled by replacements or by reinstated strikers , and the testimony thattherewas less production for about a year , but fails to suggest when the respective strikers ' or substantially equivalent positions became available so that the time of discrimination could be fixed . The cases there cited on the issue of reinstate- ment where jobs are not available appear generally to cover the situation where discrimina- ton occurred earlier , i. e., the unavailability of jobs was considered in connection with the remedy , the discrimination having already been established ( although the Westinghouse Electric Supply Company case $ differs from the others in this respect .) Here the discrimi- nation is sought to be proved by argument that a remedy was not applied before discrimi- nation itself was established . For example , with respect to a striker reemployed after February 27, it is urged that disc riminationbefound. Presumably , if in compliance proceedings it be determined that he was reemployed at the earliest opportunity (and perhaps that there never had been a replacement for him), the finding of discrimination would remain, but the "remedy" would be denied . Similarly in the case of one not reemployed , further proof might disclose that he was not discriminated against- -because proof of discrimination has not been adduced to this point . This should not be left for compliance a "preliminary " finding of discrimination is not warranted. Lee's recollection of the mid-March meeting was vague, but he included a reference to two 10-hour shifts in lieu of three of 8 hours each . 37 How long that arrangement continued does not appear . The General Counsel relied on this as proof that the Respondent discrimi- natorily continued the longer shifts. In this connection , Lee's memory " picked up" as he went along I credit the testimony that the work had fallen off. Any finding of discrimination here must further be based on the assumption that after the Union " offered" the men back to work they presented themselves at the gate Application or "offer" calls for more than a distant request where there is no refusal - If employees need not go to the plant , the plant , in the absence of a commitment or other obligation to recall, evidence before us on either point. (This case thus differs from Universal Food Service, Inc., 104 NLRB 1, where delay in reinstatement due to normal administrative routine was held chargeable to the employer.) 33 Replacements may have been dismissed to make room for strikers not listed in Appendix A attached hereto Replacements retained may likewise have been of strikers not listed. I do not speculate on this; there is no proof. Nor does it appear that those who were not restored to their jobs were active in organizational work or more so than those who were restored. (Cf. Radio Industries, Inc., supra.) 34 Referring to Brown and Root, Inc., 99 NLRB 1031, the Union in its brief departs from this concept of substantially equivalent positions by reference to positions "of the type that the former employees could fill." No more than the nature of the work which they had done does the record show, to support a direction that assignments be made to different types of work, what kind of work they could do. 35 96 NLRB 407. In that case it was first found that "the Respondent's right to replace the strikers was therefore vulnerable." In the instant case, as pointed out supra, it does not appear that the strikers were replaced or, if so, whether they were replaced by other strikers. To repeat, discrimination has not here been shown, so that we do not reach the issue of remedy and reinstatement. The cases cited by the Board in the Westinghouse case differ materially from the instant one. 36 As in N. L. R. B. v. Remington Rand, Inc., 97 F. 2d 195 (C. A. 2), cited by the Union. 31 This hearsay was followed by an uncertain mention of an admission. Then came a further hearsay reference to a 6-day week. The General Counsel, in his closing remarks, himself evaluated this latter testimony: Referring to what the evidence would show were the case reopened although he was not moving to reopen, he declared that he had "reason to believe that the evidence would also show ... that the respondent's ... work week was at that point extended from five work days to six work days ...." (Emphasis supplied.) 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have to be brought to them! Further, while all for whom application is made are en- titled to reinstatement, the Union did not rely on its "offer," as is discussed immediately following. Fifty-six letters reciting application at the gate (to this extent self-serving) and noting a continuing application were thereafter submitted to the Respondent, of which number I found that only 10 could be given credence as having been sent by the alleged signatories. Yet even as to these 10 there is no proof that they came ready for work and were refused. With respect to the writers of the 10 letters referred to, as in the case of the blanket appli- cation by the Union, there is no evidence that they had been replaced and if so whether by other strikers, or that their jobs were available when they applied (if they did in fact apply), and hence no proof that they were wrongfully denied reinstatement. 38 Neither is there evi- dence of a failure to recall them later when their jobs became available since there is no evidence of the latter. The issue remains: by what act or failure to act did the Respondent discriminate? No question was raised concerning the necessity and propriety of application at the gate as part of the return-to-work procedure. Lee testified that to his offer to return the men Fleeger replied over the telephone that they would have to make new application and come back as new employees. But most were in fact reinstated, and no discrimination has been shown even if the statement might under other circumstances indicate discrimination. As noted, Lee offered no protest when the statement was made, and the Union proceeded thereafter as it it had not been uttered, testimony being offered of applications thereafter made; Fleeger's statement was not relied on as making such applications futile. Further, it does not appear that the Respondent, when it reinstated strikers, acted'b in accordance with the statement, and finally the General Counsel has placed no reliance upon it: it was not referred to at the hearing, and is mentioned only in his brief. The whole record shows a unanimous disregard of this statement, and it would be unreal to base a finding of unfair labor practice upon it. Mention should be made of Luther Johnson, who testified that he applied in person for his job three times. (He was employed about a month before the strike and his organizational efforts consisted of an "interest" in the Union and his staying out while the strike continued ) On successive pages in the record, he testified that he first applied about a week after the strike was over, the day the strike was over, and "shortly" and "right after the strike." 41 At that time, a threat was allegedly made to shut the plant down, as noted infra, in connection with Section 8 (a) (1). Having described that threat, Johnson testified "that was all the conver- sation." The record indicates that he was not employed, but whether anything was said to him about employment does not appear. He is not personally known to Nance, who could only deny so much of the conversation as Johnson described The second and third applications were made to a person unidentified and unknown, who "was in the office, such as hiring men " As against these uncertain applications , as we balance imponderables , and on the unwar- ranted assumption that until the strike Johnson remained on the shaking machine in the molding department, where he "first started," the nature of his job is the only element 38 In the Westinghouse case, supra it was clear and there found that the company rejected the union's request for reinstatement. No question of application was considered in that case. As for the cases cited by the Union, in National Paper Company, 102 NLRB 1569, it was stipulated that the employees had applied for reinstatement, and undisputed that they had been refused. The defense there was that they were not entitled to reinstatement since they had been replaced. In Texas Foundries, Inc., 101 NLRB 1642, although the requirement to reinstate all for whom application is made was reiterated, such blanket request for reinstate- ment of all the strikers was not in fact relied on. It was there found that the strikers had personally applied for and been denied reinstatement. (The discrimination was clear, and there was no question concerning remedy and availability of lobs.) In the instant case as pointed out, the blanket request was likewise not relied on by the Union. Unlike Texas Foundries, Inc., the instant case does not contain proof of personal applications at the plant. 39Cf. N. L. R. B. v. Swinerton and Walberg Company, 202 F. 2d 511 (C. A. 9); Eagle-Picher Mining & Smelting Co. v, N. L. R. B., 119 F. 2d 903 (C. A. 8); The Lummus Company, 101 NLRB 1628. 4OSee Globe-Union. Incorporated, 97 NLRB 1026, where the refusal remained; a fortiori where all parties involved (the union, the employees, and the respondent) proceeded as if the statement had never been made. 41 He never applied by letter. There is no explanation for this if, as Lee testified, all of the strikers after applying at the gate were to return to the union office if not rehired, and to sign a letter reciting such application. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1095 provided of those missing in the case of the others listed in Appendix A. For example and without repeating all that has been said , we do not know whether or when Johnson's job was filled and, if so, whether by another striker ; or that it was available when he applied . Johnson's testimony does not warrant a finding that he was refused employment , discriminatorily or otherwise. 1. Eddie George Jackson Jackson was employed by the Respondent for 14 months prior. to his discharge on February 6, 1952. He joined the Union in the spring or early summer of 1951, became an officer, spoke to approximately 100 fellow employees about the Union, and signed 'ip about 20. He testified that after a conversation, infra, with his foreman, Jones, concerning union activity a few months before his discharge, he continued to sign men up during lunch time, and that Jones witnessed such activities Jackson also wore a union button on his cap during the last 3 or 4 months of his employment. Jones testified that he never saw Jackson sign men up for anything, but that he did speak to him several times about talking to the men, and told him to "get back on the job." On evaluation of the testimony herein and in connection with Ivey's discharge, infra, I do not credit Jones' denial, and am persuaded, aside from the finding of interference made, infra, that he knew of Jackson's union activities. (Plant Manager Furlani testified that he knew that Jackson was active in the Union.) Jackson testified that after punching out on February 6 he returned to the cleaning room, where he worked, to avoid a bill collector who was waiting outside. As he was looking out the window to see when the collector left, Jones approached and asked what was the matter and whether he had clocked out Jackson replied that nothing was the matter and that he had clocked out. Jones thereupon told him to get out of the shop, picked up a hammer, and swore at him. On his way out, Jackson picked up a large iron bar or hook. Still walking toward the door, Jones asked, "What are you going to do with that hook? " to which Jackson replied, "What are you going to do with that hammer?" When they got outside the building, Jackson continued on and left the plant (It is at this point that Jones is alleged to have made a remark that Jackson was giving him trouble about the Union, which I have not credited, infra.) He returned for work the following day, but his card wasn't in the rack and he was then handed his check. According to Jones, he watched Jackson talking to a grinder on the next shift for 7 to 10 minutes before he asked Jackson what he was doing, learned he was dodging someone, and told him he had "better" go outside. A few minutes later, he spoke to Jackson again and told him to go at once. Jones testified that, as he asked Jackson the first time to leave or 1 or 2 seconds later, he picked the hammer up to put it where it belonged. When Jackson after- ward remarked on the hammer in his hand, he replied, "You've seen a hammer in my hand many times " Jones stated that he said this calmly although he later declared that he was frightened. He discharged Jackson for threatening or not doing as he was told. (The payroll removal slip notes as the reason that Jackson had threatened him after being "corrected." This broad if permissible use of "corrected" suggests that presence in the plant after working hours was not even deserving of mention.) Despite Jones' explanation that he picked up the hammer to put it where it belonged, he did not put it away during the few minutes which, he testified, intervened between the first and second time he spoke to Jackson. He later testified that he picked the hammer up just before he spoke to Jackson the second time. I note also that his explanation that he waited 8 to 10 minutes before speaking to Jackson again in order to give him a chance to say some- thing (after watching him talk for approximately that length of time before first approaching him), contrasts with his statement that men were not allowed in the shop after working hours and other foremen's testimony of a rule to that effect. Neither Hill nor Wilson, the Respondent's witnesses, suggested the possibility of as much conversation as Jones described. Wilson, from his position behind them, could not hear what they said, but he allegedly observed Jackson "mumbling" as he followed 542 feet behind Jones, both of them walking fast (in fact Jones seemed to be "between a walk and a run"), Jones, carrying a hammer by his side, looked "scared," and Jackson, the iron bar in his hand, looked "really mad." Wilson, an intelligent witness, appeared for a time to be confused concerning the duration of certain events, and did not impress me as a reliable witness. (I do 42 Jones said that Jackson was about 10 feet behind him, 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not refer to his inability to recall various periods of time, as indicated by his statement that he knew Jackson about 4 years, since the latter came to work at the plant, whereas the record indicates that Jackson was first employed about the beginning of 1951; or by his statement that the February 6, 1952, incident occurred in June 2 or 3 years ago--confusion concerning time and dates characterized many of the witnesses.) According to Hill, both Jones and Jackson walked at an ordinary pace, Jones turning around every once in a while and saying something: Jackson did not appear to be threatening, nor did Jones act as if he were frightened or being threatened. Hill and Wilson agreed that there was approximately 20 pounds difference in weight between Jones and Jackson, but Hill gave the advantage to the former, while Wilson gave it to the latter. I noted that Jones is larger; the difference between them may be 20 pounds. On the stand the first time, Wilson testified that he saw Jackson "lay his piece of iron down . . on the . outside of the building," and that he then passed out of sight at the corner of the bathhouse, which was about 90 feet away Wilson did not then suggest that he went beyond the door or that he looked to see where Jackson had gone. Recalled 2 hearing days later, he testified that he continued outside to the corner of the bathhouse and there picked up the iron after he saw Jackson throw it. He "figured" that something would happen, so he made a mark on it with a hammer and gave it to Nance, who has since kept it Jackson testified that he had frequently, and as often as three cr four times a week, gone back into the plant after checking out; that he had thus learned to burn and chip, and Jones had praised him for teaching others after hours; that he had taken his family there to show them the equipment, that no one had ever before complained about his being there after working hours, and that Jones had "played" with him, asking, "Why don't you to go sleep? " Contrariwise, Jones testified that on many occasions he told men that they were not per- nutted in the shop after they had clocked out. He never had any trouble .,bout this, and could not recall the names of other men to whom he had spoken, remembering only the Jackson incident because of what followed. He had never before spoken to Jackson about it; in fact, had never seen him "hanging around in the plant" outside of his working hours, either working at another job or helping others. Wilson, who certainly did not favor Jackson, testi- fied that men frequently came in after their shift to talk. Bowles, another supervisor, testified to a rule against men being in the plant when they were not working, but later explained that he was referring to a regulation concerning punching " in" and going to work,43 which was included in an earlier set of rules, but not in the last set, issued on October 20, 1951 No more helpful is Arant's testimony that it is "unusual' for men to be in the plant" 15 minutes after the end of the shift since "they usually, when the whistle blows, they make a break to get out " Jones apparently did not think it unusual when, as noted, he waited before speaking to Jackson: "there have been so many cases ...." Aside from the question of notice to Jackson of any applicable rule, I find that there was no rule and employees were permitted to return after they had punched out, and that they frequently did. In the light of Jones' knowledge of Jackson' s union activities and the threat which Jones had previously made, the only apparent and reasonable explanation for his order that Jackson leave despite the contrary custom is that Jones was again manifesting his antinion animus. What followed Jones' discriminatory order was the natural consequence of that order as Jackson was slow to obey , was threatened, 45 appeared in turn to threaten as he picked up an iron hook or bar, and was discharged. The results of provocation are chargeable to him who provokes . I find that Jackson did not go beyond the provocation, but acted in self-defense and with restraint . He could not have done any more to indicate that he was obeying the order to leave. He went out as Jones led theway . Not only is there no evidence of threat beyond posses- sion of the bar, but when Jones questioned him about it he concededly stated that he was 43 Nance testified that "it is generally understood by (the) employees that they should clock out and off the Job at the time they are supposed to." 44Although Jackson was speaking to one of Arant's men at work 30 minutes after the new shift had started, Arant, foreman of the cleaning room , did not himself order Jackson to leave, 46 It is clear that Jones did not usually carry a hammer . He had one when Jackson picked up the iron bar, and he retained it. Admittedly Jackson picked up the bar while Jones held the hammer and after both had started to go out, When Jones referred to the bar, Jackson in turn referred to the hammer. Once out of the building , Jackson did not linger ; any appearance of threat vanished. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1097 thereby countering the hammer which Jones had He did not use the bar, and put it down as soon as he was away from Jones. I find that Jones provoked the discharge and that it was discriminatory. As in the case of Holloway, infra, other circumstances and shortcomings were referred to in connection with this discharge In Jackson's case, however, such other matters were cited as defenses to the discharge But aside from the question of sufficiency of proof (con- cerning "roughing a rock" as cause for discharge, destruction of company property, and old transgressions in punching in too early), the very multiplicity of reasons claimed at the hearing makes the defense suspect in view of the proof that the reason cited by the Respondent was the alleged threat 46 Interposition of the various defenses enabled the Respondent to test Jackson's credibility in great detail. With respect to "roughing a rock," a practice adopted to speed up the grinding process, there is evidence that despite the rule against it, several supervisors permitted and showed Jackson how it was to be done Although Jones declared that the wheels do not require roughing. Arant testified that he had shown Jackson how to rough a rock by tapping it with a chisel. Jackson testified that the men bumped thewheel against a table, but never while it was in use A warning slip reference to Jackson's hitting the wheel against a casting does not indicate whether the wheel was then in motion, but in any event other proof of credibility is not overcome by warning slips as we note the circumstances connected with signing such slips, testified to by Jackson and proved by the Ivey incident, infra. Jackson testified also to receipt of warning slips prior to the period with which we are directly concerned. (No reference was made to such slips by Jones, Nance, or Furlani on February 6 or 7.) With respect to one of these slips, which he signed, he was told early in September 1951 not to wash before punching out (Reference to an exhibit offered by the Respondent but rejected as not material to the issue of the discharge, would confirm Jack- son's testimony.) That offense was not repeated. His testimony was also confirmed in connec- tion with his application to the Texas Employment Commission and what he there declared. 47 He was also accurate in his reference to 3 sets of "rules", 1 issued before the Respondent took over the plant, and 2 later. 2. Willis D. Noland Noland was employed on October 25, 1951, and discharged on February 13, 1952. He joined the Union the night he went to work. Thereafter he distributed 4 or 5 union cards and got as many men to join. After approximately a month of steady work, Noland's attendance record became spotty, being climaxed by a 10-day absence from January 24 through February 6. His various absences were due to the illness and needs of an uncle for whom he was caring. Absent again on February 11 and 12, he was stopped by Stevens, his foreman, as he came to work on the 13th, he was told only that his place had been filled and that he was not to clock on. For justification, the Respondent points to 2 of its rules, violation of which "will be cause for immediate discharge", excessive absenteeism and failure to report absence. 49 Whatever Noland's attendance record and the rule concerning notice of absence, he testified that he reported every night by his fellow employees, with whom he rode to work, and that Stevens told him that they had in fact reported for him. Stevens did not think that the others had reported for Noland, nor did he recall whether the latter had discussed such reporting with him, although he did not think that he had a.,d further although he had earlier testified more positively that he had not received notice. In this connection Fite, a fellow employee, testified that he had previously carried word to Stevens that Noland would be absent, but that he did not after Noland last worked Contradicting Fite and uncertain of the dates and 46 This is clear from both the payroll removal slip and the testimony by Furlani that the "encounter" with Jones was the reason for the discharge and nothing else was considered in arriving at the decision. 47 The nature of the disagreement with his foreman and its analysis and explanation were there irrelevant and were not considered. 48 The answer originally denied that Noland had been discharged, counsel explaining that his own records showed that Noland had "remained away from work." The answer was amended to show that he was discharged because of excessive absenteeism and failure to do his work properly. Although not formally raised, the issue of failure to report absences was fully tried and is herein considered. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of times . Glaspie, another employee , testified that Fite went by Noland ' s house every night until the strike and every night he worked . Fite was so uncertain in both his answers and his demeanor that I place no reliance on his testimony I give little more weight to Glaspie's, who was positive in his ultimate statements but unable to cite clearly specific occasions . I place greater reliance on Noland and the Respondent 's witnesses and their testimony in this connection . Williams , assistant superintendent at that time, testified that Noland usually gave illness as the reason , and spoke of his uncle ' s condition; Williams doubted the reason given, but did not check on it. In any event , the last and longest of Noland ' s absences prior to that which immediately preceded his discharge on February 13, was, as noted, one of 10 days, which terminated when he returned on February 7. He was not at that time discharged either for excessive absences, for failure to report , or for improper work . On January 7 and despite previous intermittent absences , a $ 50 wage advance was given him with the approval of Furlani and Nance, who was in possession of Noland ' s attendance record . (Whether at the hearing Noland minimized his absences or Nance recalled the circumstances is not of present moment. Further , while the latter testified that he does not check an employee ' s record when making an advance , 49Noland's absences prior to January 7 were apparently not so notorious as to warrant adverse action Thereafter his only absences were those mentioned supra: the 10-day absence, which brought no action or reprimand , and the final 2-day absence .) When he reported on February 13 (like other witnesses , he was in error concerning time and various dates), this time after only 2 days' absence , Stevens stopped him before he got to the card rack and clock. I am convinced by the testimony of the various witnesses on this point that the Respondent received and accepted notice of Noland's various absences , in the same manner on the last occasion as on his previous absences 50 Bearing in mind that absences characterized Noland's record throughout all but the first month of his employment , there was now added one new element : On his last workday, February 8, the employees in his department and on his shift walked off the job in protest against the discharge of another employee . Noland was the spokesman for the employees in this concerted activity, as both he and Williams testified.si After the group was persuaded to return , Williams discussed the matter with Noland . Accord- ing to the latter , he was told that the Union wasn't running the job , Williams, on the other hand testified that he went to Noland and explained that he was trying to be fair and would not penalize or discharge anyone because of the stoppage . In either event, Noland 's prominence in the incident is evident I find that this activity of February 8 caused the change in the reaction toward Noland's absences and in his treatment . The record does not indicate even an attempt to explain the last absence as the ultimate in a series of provocations . The preceding , and more serious one, did not even evoke a warning or protest Here is discrimination in regard to tenure and conditions of employment and interference with organizational activities. 52 49Furlani testified that a rather thorough check would be made in the office before a $25 or $50 advance was made, 5o The result herein would be the same if , as the Respondent suggests in its brief , Noland's "excessive absences were ( not) reported to Respondent." Even if such absences constituted a reason for discharging Noland , it is clear that the concerted activities now about to be men- tioned "weighed more heavily in the decision to fire him than did dissatisfaction with his performance." (N. L. R B. v. Whiten Machine Works , 204 F . 2d 883 (C. A. 1.) 5i The General Counsel in his brief mentions as a violation of Section 8 (a) (5) the fact that Williams ignored Noland and spoke to the men directly. Noland recalled "vaguely " that he had told Williams that the men had selected him as spokesmen. Williams testified only that after he had asked that someone tell him what was the matter , Noland was the spokesman. The latter testified that he started to "explain the grievances ." To hold that Noland was the bar- gaining representative would be rather farfetched . But in any event he was present, and no objection was voiced by any employee or the group to direct adjustment of their grievances. This is not a case of strikers being approached and recalled to work in disregard or to under- mine the status of their bargaining representative. Here the men waited in the plant for Williams to come and speak with them--he came and spoke with them. 52 If, despite Williams ' alleged later reference to the Union , this be regarded as connected with concerted activity but not with membership in a labor organization, and therefore a violation of Section 8 (a) (1) of the Act but not of Section 8 (a) (3), the remedy in either case EAST TEXAS STEEL CASTINGS COMPANY, INC. 1099 3. Peach Holloway Prior to his discharge onJanuary 16,1952, Holloway had been employed for about 18 months as part of a 6-man molding crew on the second shift . On that day all 6 were called into the office and spoken to about a falling off in their production . Back in the plant , they were given warning slips and told to sign them . All signed after objection except Robinson (as to whom the complaint was dismissed on the General Counsel's motion) and Holloway When the latter protested that he could neither read nor write , Furlani read the slip to him, the charge therein being that production was low and that the entire unit was not operating properly. When Holloway still refused to sign (by making his mark), he was discharged. While he testified that he might have signed the slip had he taken it home and had it read to him by his wife and "if it sounded pretty good," he did not say that at the time, and at no time did he ask for a copy. Holloway became "interested" in the Union about a year before he was discharged. He testified that he never signed up other members or talked about joining the Union; nor did he know whether the Respondent knew that he was a member although he wore a union button on his cap at times and Lemmonds, his supervisor, remarked on it about 6 months before the discharge. (Cain, another member of the crew, testified that Holloway "talked up the union" to "quite a few" of theboys. Cain was a considerably keener, but hardly more reliable witness.) As noted supra, the incentive plan went into effect in the department on the first shift on August 20, 1951, and on the second shift on September 10. Comparison was made of production by the first and second shifts during the first half of January 1952, and for periods before and after. Although the semimonthly averages were not properly weighted since they did not take into account the different number of hours worked in each day, they may be accepted as roughly correct: the daily production ratios are not questioned, and the contrast is clear between the work of the two shifts during the first half of January, as clear is the drop in the second shift's production ratio during that period 53 To this point the Respondent had not singled out Holloway. All 6 in the crew were asked to sign,54 and aside from the limited extent of Holloway's union activities, there is no showing that the various members of the crew engaged in such activities. 55I have noted Cain's testimony that Lemmonds said that 2 of the crew, not named, had to go. 56 But he also testified that Furlani, declaring that there was something wrong with somebody, said " ... there was somebody holding out," and asked whether Cain knew who it was, and that Furlani also said: "There is something wrong down there with somebody You probably know who it is and why it is and we would like to have you tell us " This is borne out by the fact that all were ques- tioned and given warning slips. Fleeger testified that Furlani told him Holloway would not sign, and that Furlani may have said that none would sign Later he had Furlani saying that only Holloway refused to sign He was evidently confused here. It is clear that 4 members of the crew signed their slips after Fleeger got to Furlani's office and after the latter warned them that they would be fired if they did not sign. (Robinson had already been discharged.) The 4 who signed insisted on a copy of their warning slips and were given such. Holloway had heard his slip read to him. He did not ask for a copy as a condition to signing. He testified that it was explained to him, and it does not appear that he did not understand it or that he said that he did not understand it. The record abundantly indicates that there is no basis for finding discriminatory is the same. (Rome Specialty Co., Inc., 84 NLRB 55.) The question need not be resolved. For the sake of simplicity, this will be included with the (other) violations of the latter section. 53Reference was made to 4 employees who were not members of this crew but worked in it on various dates during the first half of January. That their presence adversely affected production in those dates was not shown: two of them had considerable previous experience in the crew, while with respect to the other two it was not shown that they did and how much prior experience, if any, was required on their jobs. 54 The reason given for recording these conversations was that the Respondent had allegedly been accused previously of saying what it had not in fact said, 55 Meager reference was made to Robinson, the only other one who refused to sign. There is neither allegation nor showing that he was discriminatorily discharged. 56 Cain directed attention to Robinson and Holloway by his testimony that Williams or Nance asked whether he had heard any talk of Robinson and Holloway "talking for slowdown." 1 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD treatment of Holloway to this point. As the General Counsel points out in his brief, his fore- man told him that if he signed the slip he could stay on the job. Nor is this a case of provoked insubordination. Besides the absence of evidence that Hollo- way was provoked into refusing to sign as the others did, it is quite unlikely that a shotgun method would be directed against the entire crew in the hope that one of their number. Hollo- way, would be struck. Although at the hearing a mass of evidence was received on the question of the crew's failure to produce, such failure was but introductory to the issuance of the warning slips on January 16. It is clear despite some evidence of attempts to place the blame on Robinson and Holloway, that the Respondent blamed all of the crew, and that in the case of no individual has it been shown that discharge was caused by failure to produce. Such failure prompted warning slips only, discharge followed for anyone who refused to sign. I have not overlooked Holloway's testimony that he was told that he had previously been a good worker But the issue of insubordination remains. Although his payroll removal slip listed both the immediate reason and the underlying reason, the latter was not the moving cause resulting in discharge of any of the members of the molding crew. Holloway was dis- charged because he refused to sign the warning slip. 57 4 George S. Ivey, Jr. Ivey was employed as a welder's helper and on other jobs assigned to him from November 20, 1951, until he was discharged on February 12, 1952. He joined the Union a few days after he went to work He testified that Jones, his foreman, came by and saw him handing the union card back after he had signed it, 58 but that Jones said nothing Ivey "talked {the Union up, signed up three or four men " It does not appear that the Respondent had knowledge of any of his activities at union meetings He testified that early in January Jones observed Ivey speaking with a welder whom he was helping, and asked Ivey what they had been talking about Jones allegedly then added that he had several times observed Ivey talking with Jackson and knew that they were "talking union." These remarks included reference to Ivey being a good worker Jones denied that he ever saw Ivey sign a union card or with such cards in his possession, and further denied that he ever spoke to Ivey about talking about the Union. Ivey also described in detail his work during the last few days of his employment, and it appears from his testimony that he was giving it "close attention." Jones on the contrary, without referring to any of the assignments which Ivey had described, testified that Ivey "was always talking and fooling around; he wasn't on the job He was about the worst [Jones] had, ..." (Despite these allegedly extreme shortconungs, Jones had never issued a warning slip to Ivey. Nor for that matter did Jones cite a single instance or occasion when Ivey was guilty of misbehavior, not even the occasion which provoked the warning slip. As will be noted, Ivey declared that prior to that occasion he had never been warned.) Referring to the discharge, Jones testified: "As I recall, I let him go one evening around 4-00 o'clock, at the change of shifts due to the fact he just got to where he was off his job so much, wouldn't stay on the job I give him, that is all there was to it " Here again, he offered generalities in contrast to Ivey's specific recital of the work which he had done. Jones then added: "And also, he was rather strange, and you talk to him and you couldn't get much out of him " How the "strangeness" affected Ivey's work as a helper, and what Jones wanted to "get out of him" when he spoke to him are not at all clear, such testimony does not prove that Ivey was an unsatisfactory employee. I credit Ivey's testimony concerning his conversation (quoted infra) with Jones in January and concerning the performance of his job, I reject Jones'. As a matter of fact, Ivey's payroll removal slip declares the reason for the discharge to have been his refusal to sign a personnel report or warning slip, not the "worst" nature of Ivey's per- formance, although it does note that his record was poor. (Jones was not at first certain but then did remember that Ivey had refused to sign.) 57 This conclusion was indicated in haec verba by Lee in his testimony concerning the grievance meeting of January 18, and by Williams, who testified on cross-examination that Furlani, his predecessor and quondam superior, told him that he had discharged Holloway for refusing to sign the warning slip, 58I do not rely on Ivey's conclusion that it was "evident" from the fact that "his facial expression changed so much" that Jones knew that it was a union card. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1 101 According to Ivey, Jones asked him on the morning of February 12 where he had been working that morning, and Ivey named the man whom he had been helping. That afternoon Jones held a warning slip up before him and asked him to sign it. Ivey replied that it didn't "fit" him since it mentioned his not giving his work proper attention and his being warned about it. Jones then called Williams to witness the refusal to sign and noted such refusal on the slip, Williams signing at Jones' request At quitting time that day, Jones discharged Ivey Testifying to the discharge as noted, Jones declared it to be "due to the fact" of Ivey's unsatisfactory service. His reliability on the stand was not enhanced as he persisted on that theme until counsel directed his attention to the warning slip Further, he testified that he "explained" the slip to Ivey, and believed that Ivey wouldn't read it. Having observed the latter, I do not believe that he would refuse to read the slip, I credit his testimony that he read it. As for explanation, it is quite apparent that Ivey needed none. Again on the issue of the quality of Ivey's work (and Jones' credibility), in addition to the facts noted supra that Jones had never before given Ivey a warning slip and did not cite his extremely poor work as a reason for the discharge, when action was finally initiated it was only to issue a warning slip All of this was hardly in keeping with the seriousness of Ivey's deficiencies as mentioned by Jones. Coming now to the refusal to sign the warning slip, we have here a case of unwarranted provocation and a response which was not insubordinate In Jackson's case, clear distinction is noted between the previous warnings and the one which prompted the slip and was given on the day when the slip issued. Again, the warning slips issued to Holloway and Cain are by their terms confirmatory of warning given that day. Such practice of giving warning prior to issuance of a slip was here apparently declared as the slip handed to Ivey suggests prior warnings rather than a contemporaneous one. If it be urged that the statement is ambiguous, the responsibility therefor is the Respondent's. Further Ivey clearly indicated his under- standing of it when he said that reference to a warning slip didn't "fit." Jones offered him no explanation that another meaning was intended, nor did he deny Ivey's testimony, neither, despite his testimony that he had previously spoken to Ivey about "doing his job" and talking, did he tell Ivey the slip did "fit." I credit Ivey's statement that he had not previously been warned. Among the Respondent's rules and regulations of October 20, 1951, violation of any of which was declared to be cause for immediate discharge, are the following: 41. Failure to sign any kind of slips that do not misrepresent the facts. 42. Failure to sign warning slips. This curious sequence apparently means that warning slips must be signed if they do not misrepresent the facts. As the Respondent's counsel recognized when he submitted evidence of the reason for the issuance of warning slips to various individuals, there must be a valid foundation for the issuance of such slips. It cannot be said that Ivey's conclusion (he was both literate and literal) of inconsistency in these rules was unwarranted or that his action based on that conclusion constituted such insubordination as would warrant discharge. He was not incorrect in his understanding or in his action on such understanding of the converse of the rule as stated: failure or refusal to sign any kind of slip was warranted if the slip misrepresented the facts. (Again, the Respond- ent would be responsible under a reasonable interpretation different from its own.) I find that under the Respondent's own rule 41 Ivey was not insubordinate in refusing to sign. The Respondent on the other hand insisted that he sign, and thus discharged him without sufficient reason. In the absence of satisfactory explanation, I find that Ivey's union activity prompted his discharge 59 The Respondent did not here abide by its own rules. Taking the January incident of Ivey's talking with a welder, who does not appear to have shared the rebuke given Ivey, and the unproven and unwarranted reference to prior warnings, we have a magnification of trivia without adequate explanation other than antiunion bias. I find that Ivey was discharged in violation of the Act C. The alleged independent violation of Section 8 (a) (1) Jackson testified that 2 or 3 months before he was discharged in February 1952, Foreman Jones asked him what he had in his pocket and charged him with bothering the men at work; 59 W. C Nabors Company, 89 NLRB 538. 60 Although the complaint refers to E J. Jones, Foreman T. F. Jones was clearly identified, as I stated at the hearing. 1 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jackson replied that he had union cards and had been talking during the lunch period only; and Jones then declared, "Unless you mend your ways, I am going to have to let you go." Jones admitted that he spoke to Jackson several times about talking, but denied the remainder of the testimony in this connection. From consideration of the testimony of the various witnesses, I credit Jackson's account. I find that Jackson's union button and his signing of union members were observed by and known to Jones. 61 The question, calling for admission of organizational activities to a super- visor, tends to interfere with such activities and is in violation of the Act. Had the question not been asked, the threat might be considered as directed against talking during working hours, but connected as it was with reference to union activities, that threat also constituted interference within the meaning of the Act. 62 At the conclusion of the incident on February 6 which preceded Jackson's discharge, Jones, he testified, shouted: "Fire him, fire him; see there he is; fire him. That damn nigger gives me more trouble than any man I had in the shop about the union." Although Jones' recital of the events of that day did not include a statement to Jackson that he was discharged, Jones did testify that he reminded Jackson the following morning that he had been discharged the day before. It would appear, then, that Jackson testified credibly that Jones had discharged him or called for his discharge as they left the building. I nevertheless credit the denials (particularly Williams') that Jones referred to Jackson's union activities at the time it seems unlikely that in the excitement of such an atmosphere Jones, in calling out against Jackson, would have referred to his union activities rather than to the immediate situation Also, having observed Jones, I do not believe that he would have made so clear an admission of antiunion animus. Reference has been made to a conversation between Jones and Ivey in January 1952. I credit the latter's testimony in the face of Jones' denial that he said, "I know you fellows are talking union... you seem to be a good worker and if you just go ahead and do your work and not be talking to these other people about the union, you will do okay." There is no evidence of a general rule against talking. Under such circumstances to limit or discourage talking about a union constitutes unlawful interference with organizational activities. Gaither, who helped on the furnace work under Pool, testified that he joined the strike on February 19 and that Pool came to his house in his absence about 3 days later. About 4 days after that, Pool came to his house again, asked him to go back to work, and when Gaither replied that he wouldn't cross the picket line, allegedly told him that "if [ he] didn't go back to work that [he] would tear [ his] pants with the company." In passing upon this alleged threat and attempt by recalling him to interfere with the strike activities, we must consider whether the Respondent was responsible for Pool's statements The only evidence of connec- tion lies in the testimony that Pool was a supervisor within the meaning of the Act. The inter- ference here claimed took place away from the plant; this is not a case of interference during the exercise of his authority by one who is clothed with limited authority. 63 Pool directed some half dozen men, these including wheelbarrow men, men on the ladle, and others in the yard, cutting scrap. He testified that he has recommended men in casual or 6iWhere Jackson distributed handbills and whether Jones knew of such distribution does not appear. 62 On cross-examination Jackson would not answer when asked whether he had told the Re- spondent's counsel in the street near his house 5 days before that he had never heard any bosses say anything concerning the Union except that the men vote the way they wanted to. (There was no request that he be directed to answer.) If Jackson did make that statement to counsel, it was an admission which must indeed be considered on the issue of credibility here involved. I note, however, Jackson's inferior status and inferior standing vis-a-vis counsel. (I do not here undertake to analyze and cer- tainly not to applaud or deplore such status. I consider it, however, as a fact to be weighed in making a necessary credibility finding. Nor doI suggest that counsel was at fault or respon- sible for his superior standing or for Jackson's reaction. Regarding only the fact, it would here be irrelevant to seek the cause or explanation.) It appears from Jackson's refusal to deny, and from the testimony of Glover, who accompanied counsel on that visit, that Jackson had in fact made that statement. Jackson's testimony was only that it would not be true to say what he apparently had told counsel. Whatever his statements to counsel just before the hearing, Jackson impressed me on the whole as truthful and reliable. 63Cf. Harrison Sheet Steel Co., 94 NLRB 81. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1103 general discussion as being good hands, but that he did not get them increases. While Gaither referred tohimas the chief smelter on the furnace , it appears that he was one of the melters u referred to in the Board's earlier Direction of Election. G5 As there found, there is one such on each shift , and he routinely assigns work to laborers , the Board held that melters are not supervisors within the meaning of the Act. Pool attended supervisors' meetings according to Gaither, who could not say who was present at such meetings. Although Gaither testified that Pool chose his helpers from among the available laborers, Pool explained that he asked his own or other supervisors for men. Gaither testified also that he,was obtained in this manner in March 1951, the Board's decision concerning Pool's status issued in August. In the absence of evidence that Pool's duties were changed between August 15 and the end of February 1952,66 I find that Pool was not a supervisor within the meaning of the Act. Because it can be briefly stated , I further note my impression that Pool was truthful in denying that he made the graphic threat which Gaither attributed to him. He denied that he visited Gaither's home during the strike except once, when he found Gaither out The latter did not appear to be a reliable witness as he testified first that he reapplied for work at the plant for the first-time about-3 Months after the strike was over, and then, after being shown the letter of application dated February 27, that on that date he applied at the gate. (This lends a further uncertain aspect to all of the testimony concerning the various letters of application and the alleged personal applications at the gate ) Luther Johnson testified that when he applied for his job, Nance asked how the Union was coming on, disparaged it and the strike, and said that "before the union would take that plant over they would shut it down." As noted supra, Johnson placed this conversation variously on the day the strike was over and a week later. I accept Nance's denial especially since to do otherwise would impute to him a loquaciousness which would be out of line with his habits as I noted them and with the testimony of other witnesses as they described their dealings with him III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations described 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 dis- putes burdening and obstructing commerce and the free flow of commerce IV. THE REMEDY Since it has been found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent, by discharging Jackson, Noland, and Ivey, dis- criminated against them in respect to their hire and tenure of employment in violation of Section 8 (a) (3) of the Act. I shall therefore recommend that the Respondent offer to said employees immediate reinstatement to their former or substantially equivalent positions, er without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discriminatory action aforementioned by payment to each of them of a sum of money equal to that which he would normally have 64Little can be made of the change of classification from melter to electric furnace op- erator; this occurred 3 months before the Board's decision, which did not refer to the latter. The unit as described herein by the General Counsel includes melters, and it is clear from the job description noted on the record that electric furnace operator is merely a different name for the same job. Gaither did not indicate any change in duties as he described the work done. TS 16-RC-765, 95 NLRB 1135. G6Gaither testified that the work and relationships were the same throughout his employ- ment and until the strike. I shall not assume that the facts in the election proceeding were incomplete or that the decision was incorrect. 67 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. - 1 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned less his net earnings , 68 which sum shall be computed 69 on a quarterly basis during the period from the discriminatory discharge or failure to recall to the date of a proper offer of reinstatement . It is also recommended that the Board order the Respondent to make available to it upon request payroll and other records to facilitate the checking of the amount of back pay due 70 It has been further found that the Respondent , by threat against assisting the Union and dis- criminatory interference with discussion concerning the Union , interfered with , restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act . I shall therefore further recommend that the Respondent cease and desist therefrom. The unfair labor practices found herein indicate a purpose to limit the lawful concerted activities of the Respondent 's employees . Such purpose is related to other unfair labor practices , and it is found that the danger of their commission is reasonably to be apprehended I shall therefore recommend a broad cease and desist order , prohibiting infringement in any manner upon the rights guaranteed in Section 7 of the Act. For the reasons stated in the subsection entitled , "The alleged violation of Section 8 (a) (3)," I shall recommend that the complaint be dismissed insofar as it alleges the discriminatory discharge of Holloway. For the reasons stated in the subsection entitled , " The alleged violation of Section 8 (a) (5)," I shall recommend that the complaint be dismissed insofar as it alleges an unlawful refusal to bargain with the Union. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Eddie George Jackson, Willis D. Noland, and George S. Ivey, Jr., thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such discrimination and by threat against assisting the Union and discriminatory interference with discussion concerning the Union, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4 The aforesaid labor practices are unfair labor practices affecting commerce , within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices within the'meaning of the Act by discharging Peach Holloway 6 The Respondent has not engaged in unfair labor practices within the meaning of the Act by an alleged unlawful refusal to bargain. [Recommendations omitted from publication I APPENDIX A W. J. Beauregard Levester Bryant Sam C. Foster Elmo Bradford, Jr. Samuel E. Conwright Curtis Gaither Drue E. Bradley Mingo Crockett Lawrence Glaspie Richard Brantley Leavie Davis Y. D. Hall John Royal Brown Simon Davis Willie E Isaac Johnnie Lee Brown Carlos F. Edwards Dave W. Jackson Prentiss L. Brown George Edwards Robert Jefferson T. J. Brown, Jr. James Fort Clarence Johnson 68 Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Corp, v. N. L. R. B., 311 U. S. 7. 69F W. Woolworth Company, 90 NLRB 289. 70Ibid. EAST TEXAS STEEL CASTINGS COMPANY, INC. 1105 Cone Johnson James B. Moore Willie L. Smith Eligah Johnson John C. Owens Luther Spain Every Lee Johnson Ralph W. Pellett Jack Talley Luther Johnson David Peoples Joseph C. Taylor Montgomery Johnson J. B. Ross Precious Turner Roy Johnson Jessie L. Sadler Roscoe Turner G. D. Jones R. T. Scott Townzy Wayne Herbert Jones Eddie Lee Shephard Earnie Whitaker Hulan Laminack Alton Slade Claude Williams Charlie B. Long Milton Slade Joseph C. Williams Percy McAlpin James H. Smith Louis Williams Lee Roy McCray Morris E. Smith Clifton Woods Albert Menefee Willie E. Smith APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, CIO, or any other labor organization of our employees by discharging any of our employees or dis- criminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten or discriminatorily interfere with discussion by our employees concerning union activities WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Eddie George Jackson, Willis D. Noland, and George S. Ivey, Jr., immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the interference, restraint, coercion, and discrimination against them. All of our employees are freeto become, remain, or to refrain from becoming or remaining members in good standing in United Steelworkers of America, CIO, or any other labor organi- zation except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. EAST TEXAS STEEL CASTINGS COMPANY, INC., Employer Dated .............. By ..... .................................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. 339676 0 - 55 - 71