Summit Mining Corp.

National Labor Relations Board - Board Decisions

Feb 21, 1958

119 N.L.R.B. 1668 (N.L.R.B. 1958)

1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summit Mining Corporation and United Cement , Lime & Gyp-
sum Workers' International Union , AFL-CIO. Case No. 4-CA-
1471. February 21, 1958
DECISION AND ORDER
On September 25, 1957, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Summit Mining
Corporation, Carlisle, Pennsylvania, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Cement, Lime
Gypsum Workers' International Union, AFL-CIO, as the exclusive
representative of all its employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment.
(b) Discouraging membership in United Cement, Lime & Gypsum
Workers' International Union, AFL-CIO, or in any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees because of their concerted or union activities, or
in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
' The Respondent 's request for oral argument- is hereby denied as , in our opinion, the
record, exceptions , and brief adequately present the issues and positions of the parties.
119 NLRB No. 208.
SUMMIT MINING CORPORATION 1669
labor organizations, to join or assist United Cement, Lime & Gypsum
Workers' International Union, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement in conformity with Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Cement, Lime &
Gypsum Workers' International Union, AFL-CIO, as the exclusive
representative of all the employees in the aforesaid unit and, if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Make whole Harold Baltzley, Richard Orner, and Jack South-
erly, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy," for any loss of pay each may have suffered
as a result of the Respondent's discrimination against him.
(c) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due under the terms of this Order.
(d) Post in conspicuous places at its plant and mine, including all
places where notices to employees are customarily posted, copies of
the notice attached to the Intermediate Report and marked "Appen-
dix." 2 Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by it immediately upon receipt thereof,
and maintained by it for at least sixty (60) consecutive days there
after. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been duly filed, a complaint and notice of hearing thereon having
been served by the General Counsel , and an answer having been filed by Summit
Mining Corporation , herein called the Respondent, a hearing involving allegations
of unfair labor practices in violation of the National Labor Relations Act, 61 Stat.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
136, herein called the Act, was held upon due notice at York, Pennsylvania, on
July 9 and 10, 1957, before the duly designated Trial Examiner. The allegations
of the complaint as amended at the hearing, denied by the answer, are that (a) on
August 24 and September 21, 1956, and continuously thereafter, the Respondent
refused to bargain collectively with United Cement, Lime & Gypsum Workers'
International Union, AFL-CIO, herein called the Union, as the exclusive repre-
sentative of its employees in an appropriate unit, although a majority of said
employees had designated the Union as their representative for such purposes, in
violation of Sectioti 8 (a) (5) 'and (1) of the Act; (b) on September 21, 1956,
certain of the Respondent's employees ceased work concertedly and went on strike;
(c) on September 21, 1956, the Respondent discharged Terry Baltzley, Richard
Scott, Raymond Wagner, Harold Baltzley, Richard Orner, and Jack Southerly be-
cause of their participation in the strike; (d) on November 12, 1956, the three
last named employees ceased participating therein and requested reinstatement, but
the Respondent refused to reinstate Southerly until November 23, Orner until
December 20, and Harold Baltzley until February 23, 1957, because of such
participation; and (e) by the discharges and refusals to reinstate, the Respondent
violated Section 8 (a) (3) and (1) of the Act. The General Counsel and the
Respondent were represented by counsel, were afforded full Opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings
and conclusions. No appearance was entered at the hearing on behalf of the Union.
On August 12, the Respondent filed a brief. The Respondent's motion to dismiss
the complaint, made at the close of the hearing, is disposed of in accordance with
the determinations below.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation, has its principal office in Carlisle,
Pennsylvania, and its plant and mine at Aspers, Pennsylvania, where it is engaged
in quarrying and processing soapstone. The Respondent annually produces and
ships products exceeding $50,000 in value to points outside the Commonwealth of
Pennsylvania. There is no dispute, and I find, that the Respondent is engaged in
commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Cement, Lime & Gypsum Workers' International Union, AFL-CIO, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events'
The Respondent's mine is located about 5 miles from its plant. The employees
involved herein work at both places. On August 23, 1956, 13 of the employees
signed applications for membership in the Union and designated it as their repre-
sentative for the purposes of collective bargaining. Every employee in the appro-
priate unit described below was a signer along with three foremen, Carl Ankney,.
Gerald Day, and John Baltzley. The record does not disclose the circumstances
under which most of the 13 persons signed the cards, but Ankney testified without
contradiction that he received his card from John Baltzley, who asked him to sign
it, and that 2 employees, Terry Baltzley, John's son, and Herbert Griest, were
given cards at the same time. Ankney testified further that no one explained to
him "the portent" of the card.
On August 24, Vincent Speciale, a representative of the Union, wrote to the
Respondent, claiming to represent a majority of the Respondent's employees and
to have been authorized to enter into a collective labor agreement on their behalf,
and asking that a date be set for a conference. On August 30, George W. Ahl, Jr.,
the Respondent's president, responded to Speciale's letter, suggesting that Speciale
telephone him so that a date for a conference could be fixed. On September 7,
the conference was held. Attorney Smith, spokesman for the Respondent, asked
Speciale for suggestions concerning a method of resolving the Union's claim.
I The factual situation described below is largely undisputed and there are no major
conflicts in testimony.
SUMMIT MINING CORPORATION 1671
Speciale replied. that there were two methods: (1) an agreement that the Union
would be recognized upon proof of-majority status, which. would be followed by
a cardcheck, and (2) an election conducted by the Board. Smith chose the latter
method. At one point. during the conference, Smith asked Speciale how many
employees the Union -represented and Speciale, although representing all employees
in the appropriate unit, answered: "Let's say we have all but one." On the same
day, the Union filed a petition with the Regional Office of the Board.2
On September 12, the Regional Director issued a notice of hearing in the repre-
sentation case, fixing.the date •of hearing as September 21. Prior to the latter date,
two discharges occurred. On September 19, Foreman John Baltzley 3 recommended
the discharge of Merl Phillips, a non-supervisory employee. The Respondent inves-
tigated Baltzley's recommendation and adopted it. Phillips was discharged on that
day. Although the record does not disclose the basis of the recommendation, the
parties are agreed'that the discharge was valid. On the following day, in accord
with the Respondent's practice in such matters, it sent to Baltzley for his signature
a statement in connection with the discharge. Baltzley, apparently having sus-
tained a change of mind, refused to sign it and he was discharged forthwith because
of the refusal. That night a substantial majority of the employees met with Roland
S. Roth, another representative of the Union. The time was within 24 hours of the
representation hearing, and there was a discussion of working conditions. The
employees also discussed the discharges of John Baltzley-and Phillips, both of whom
had signed applications for membership in the Union, and they asked Roth to talk
with Ahl at the hearing the next day and to seek reinstatements, saying too that if
need be they would strike to support their demand for reinstatements.
On September 21, the hearing was held. At its conclusion, Roth asked Ahl to
reinstate the two men.- Ahl refused and explained why the men had been discharged.
Roth then reiterated his request for reinstatements, saying that reinstatements would
"avoid trouble." 4 The request was rejected again. As related, there is no issue
here concerning the validity of Phillips' discharge, nor is there one concerning
Baltzley's discharge. After leaving the hearing site, Roth met Baltzley and Phillips,
to whom he related his conversation with Ahl. In Roth's automobile there were
picket signs which bore the name of the Union, above which was printed "This Plant
On Strike," and which did not bear the name of an employer. Baltzley and Phillips
asked Roth to give them several of the signs, which Roth did, and they left him with
the remark that they would contact employees at the plant.
Later that day, two employees, Harold Baltzley, brother of John, and Richard
Scott, bearing picket signs, left their places of work at the mine and went to the
plant. There they spoke with Production Manager Edward C. Beard. Harold
Baltzley told Beard that if the plant was not closed within 30 minutes the Union
would not be responsible for what happened, and Beard instructed Foreman Ankney
to close it. While operations were being suspended, Harold Baltzley told Beard
that there would be a strike unless the Respondent reinstated John Baltzley and
Phillips and apologized to them. Beard rejected the demand and telephoned Ahl
to relate what had occurred. Six employees, who may have constituted the entire
number of employees in the appropriate unit at work on the day shift, left the plant
and formed a picket line outside. They are Harold Baltzley, Terry Baltzley, Richard
Orner, Richard Scott, Jack Southerly, and Raymond Wagner. The three other
employees in the appropriate unit, who were not at work then, did not join in the
strike.5 Later that afternoon the Respondent decided to discharge the six men
and their "final" paychecks were prepared with the notation, "services terminated."
On the next day, the checks were mailed to the employees. According to Ahl, he
discharged the six men as a "management prerogative-disciplinary action" and not
because of their union activities.
2 Official notice is taken of proceedings in Case No. 4-RC-3140.
8 At an undisclosed time in September , the Respondent decided to relieve John Baltzley
of his supervisory duties and to classify him as a mill operator. A reason was that there
were too many foremen . The reclassification was not to occur until October 1, however.
4 Roth testified that he definitely used the words "avoid trouble ." On the other hand,
Ahl testified that to the best of his recollection the "essence " of Roth's statement was that
"there will be trouble ." In any event , it is clear that Roth did not say expressly that the
refusal to reinstate would result in a strike.
5 As will appear , on September 21 there were nine employees in the appropriate unit.
Six went on strike ; three did not . Ahl testified that some of the employees in the unit
worked on a different shift and that he and Wallace C. Wilson, assistant general manager,
visited the homes of those employees on September 21 and brought them to the plant in
order to resume operations.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 1, the Union requested permission to withdraw its petition in the
representation case, and on the next day it filed the initial charge in this proceeding.
On November 12, Southerly , Orner , and Harold Baltzley applied for reinstatement.
They received it on the following November 23, December 20, and February 23,
respectively . As appears below , we have no issue concerning a denial of reinstate-
ment to the remaining three strikers.
On June 4, 1957, the complaint was issued in this proceeding . On June 11, the
Board issued an order dismissing the petition in the representation case because the
complaint alleges inter alia a refusal to bargain by the Respondent.
B. Discharge of the strikers
As we have seen , on September 21 six employees went on strike to secure the
reinstatement of Phillips and John Baltzley , and on the same day they were dis-
charged for having done so . As we have seen too, Phillips and Baltzley had been
validly discharged. Our issue is whether the six employees, in striking for the
object stated , were engaged in protected activity so that they could not be discharged
lawfully until persons had been hired to replace them.
As recited, John Baltzley was a foreman although he would have become a
rank-and-file employee in 10 days had he not been discharged . See footnote 3.
Phillips, on the other hand , was a rank -and-file employee . The Respondent cites
several cases in support of its contention that employees are not engaged in protected
activity when they strike to protest a foreman's discharge. Those cases need not
be discussed but they are cited in the footnote.6 It suffices to observe that the law
most favorable to the Respondent appears to be as set forth in Fontaine Converting
Works, Inc., 77 NLRB 1386, where employees struck, "not to advance their own
interests, but merely to further the interest of their foreman who they believed was
demoted . . " The Board , distinguishing other cases, held that the strike was
unprotected activity for the reason quoted and that the strikers could be discharged
validly for participating therein. The Fontaine case is not dispositive of the issue
here, however . The factual situations in the two cases differ substantially. Here
the strike was in protest of the discharge of Phillips, as well as John Baltzley, and
it is reasonable to conclude that the employees believed that their own interests
were involved. Thus, both Phillips and John Baltzley were applicants for member-
ship in the Union ; the movement for reinstatement perhaps originated and defi -
nitely gained approval at a meeting of employees who had applied for membership
in the Union ; the demand for reinstatement was made by a union representative
to the Respondent ; the strike was to obtain reinstatement of fellow applicants for
membership; the picket signs indicated that the strike was approved by the Union;
and the initial and amended charges in this proceeding allege that the discharges
of Phillips and Baltzley were violative of the Act.
In N. L. R. B. v. J. L.Case Co., 198 F. 2d 919 (C. A. 8), enfg. as mod. 95 NLRB
47, cert. denied 345 U. S. 917, five employees sought to procure a walkout of em-
ployees to protest the valid discharge of a union steward. Three of the 5 employees
were discharged and 2 were laid off, all, it was held, in violation of the Act. The
court said:
"Section 7 gives employees the right `to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or protection.'
This `mutual aid' and `concerted activities' include , we think, the right to join
other workers in quitting work in protest over the treatment of a.coemployee,
or supporting him in any other grievance connected with his work or his
employer's conduct."
In Colonial Fashions, Inc., 110 NLRB 1197, 1203 , the Board said:
.. . Thus, it has been generally recognized that strikes arising over the
nondiscriminatory [valid] discharge of employees or other economic issues .. .
constitute protected concerted activity . [ Citations omitted.]
. the record clearly establishes . . . that they [employees] concertedly
walked out because of their belief that the Crump group had been unlawfully
discharged . Irrespective of the correctness of their belief, 'we find that this
action constituted concerted activity protected by the Act. [Citations omitted.]
ON. L. R. B. v. Reynolds International Pen Company, 162 F. 2d 680 (C. A. 7), setting
aside 70 NLRB 932; Joanna Cotton Mills v. N. L. R. B., 176 F. 2d 749 (C. A. 4), setting
aside 81 NLRB 1398; N. L. R. B. v. Wallick and Schwalm Company, 198 F. 2d 477
(C. A. 3), enfg. 95 NLRB 1262; N. L. It. B. v. Coal Creek Coal Company, 204 F. 2d 579
(C. A. 10), enfg. as mod. 97 NLRB 14.
SUMMIT MINING CORPORATION 1673
In N. L. R. B. v. J. E. McCatron et al., d/b/a Price Valley Lumber Co., 216 F.
2d 212 (C. A. 9), enfg. as mod. 106 NLRB 26, cert. denied 348 U. S. 943, the
court said:
In the case of N. L. R. B. v. Globe Wireless, Ltd., 1951, 193 F. 2d 748,
this Court held that a strike called to bring about the reinstatement of an
employee properly discharged for insubordination was a concerted activity
protected by § 7 of the Act. In the instant case we have the additional fact
that the strikers mistakenly but in good faith thought that the employees whose
reinstatement they sought had been discharged because of union activities.
Some of the strikers testified that they feared that unless effective action was
taken they too would be discharged because of their union activity. The
walkout was a concerted activity protected by § 7. The discharge of the
employees participating in the walkout by McCatron without having first
replaced them interfered with, restrained, and coerced the employees in the
exercise of that concerted activity.
Insofar as•I am aware, the Board has considered but one case in which employees
quit work to protest the discharge of both a supervisor and a nonsupervisory em-
ployee. In Solo Cup Company, 114 NLRB 121, enfd. 237 F. 2d 521 (C. A. 8),
employees quit work for about 1 hour to argue against the discharge of a supervisor
and a rank-and-file employee, and to obtain a "satisfactory" explanation thereof.
According to the Board, the employees" were more concerned with the discharge
of the rank-and-file employee than with the discharge of the supervisor, and they
also were concerned that their own job security may have been in jeopardy. The
Board held that the employees were engaged in concerted activities for their mutual
aid and protection and that their layoff by the Employer was violative of the Act.
The court, in affirming the Board, apparently did not view as significant the fact
that 1 of the 2 persons discharged was a supervisor since that person is referred
to in the opinion merely as "the other discharged employee."
Applying the applicable law to the factual situation described above, I must
reject the Respondent's contention that its striking employees were engaged in
unprotected activity. I conclude that applicants for union membership who strike
to protest the valid discharge of other such applicants are engaged in concerted
activities for their mutual aid or protection, although one of the discharged
applicants be a supervisor. It follows that the Respondent's striking employees were
economic strikers whom the Respondent was free to replace at any time prior
to their applications for reinstatement but that they retained their status as
employees and could not be validly discharged for their strike activity. Cf. United
Grinding Service, Inc., 118 NLRB 67. Their discharge was violative of Section 8
(a) (3) and (1) of the Act.
C. The refusal to bargain collectively
1. The appropriate unit; the Union's majority status
The complaint alleges, the answer admits, and I find, that all of the Respondent's
production and maintenance employees, excluding office clerical employees, pro-
fessional employees, technical employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
Between August 23 and September 19, 1956, inclusive, there were 10 employees
in the unit, namely, Phillips, who was discharged on September 19, Herbert Griest,
James Jones,7 and Charles Shank, the three employees who did not go on the
strike described above, and Harold Baltzley, Terry Baltzley, Orner, Scott, Southerly,
and Wagner, who did go on strike. On September 20, following Phillips' discharge,
the number in the unit was nine. As related, there is no dispute and I find that
on August 23, the 10 named employees, as well as Foremen John Baltzley, Ankney,
and Day, signed applications for membership in the Union which authorized the
Union to represent them in collective bargaining. Accordingly, I find further that
on August 23, 1956, and at all times thereafter, the Union was the duly designated
representative of a majority of the employees in the appropriate unit and, pursuant
to Section 9 (a) of the Act, was the exclusive representative of all the employees
in such unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
7 The transcript, at page 24, lines 1 and 2, incorrectly refers to James Jones as "James
Scott," reflecting an apparent confusion of Jones with Richard Scott. The word "Scott"
on line 2 is hereby corrected to read "Jones."
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The refusal to bargain
The General Counsel contends that the Respondent refused to bargain on
August 24 and September 21 and continuously thereafter. On the other hand,
the Respondent, while acknowledging that it did not recognize the Union as the
representative of its employees in the appropriate unit and did not bargain with
it, denies that it refused to bargain in violation of the Act. As an initial defense,
the Respondent asserts that there was no demand by the Union that it bargain.
According to the Respondent, the Union's letter of August 24 to the Respondent
did not constitute a demand that the Union be recognized. This defense is without
.merit. As we have seen, in that letter the Union claimed to possess majority
status, asserted that it had been authorized to enter into a collective-labor agree-
ment on behalf of the employees, and asked that a date be set for a conference.
When the conference was held, the Union offered to prove its majority status
by a cardcheck or an election, and the Respondent chose the latter method.
Thereafter, a representation hearing was held upon the Union's petition. Under
these circumstances, it is unrealistic to assert that the Union did not request
recognition. As was said in Joy Silk Mills v. N. L. R. B., 185 F. 2d 732
,(C. A., D. C.), enfg. as mod. 85 NLRB 1263, cert. denied 341 U. S. 914: "Nor
must the request to bargain be in haec verba, so long as there was one by clear
implication. .
Next, the Respondent asserts that it was entitled to await a certification of
the Union by the Board before bargaining. As we have seen, the Respondent
-engaged in no unfair labor practice until the discharges of September 21. Prior
thereto it had shown no hostility to the Union and had accepted the Union's
alternative method of proving majority status through an election. Contrary to
'the contention of the General Counsel, I find that there was no refusal to bargain
-on August 24. On September 21, however, the Respondent invalidly discharged
'6 of the 9 employees in the appropriate unit, following which the Union withdrew
its petition and chose not to proceed further with the representation case. The
issue whether the Respondent unlawfully refused to bargain turns upon whether
"the effect of the six discharges was to render a free election impossible. According
to the Respondent, Ahl's discharge of the six strikers was made in good faith,
without any intent or desire to destroy the Union's majority status, and solely
for the purpose of maintaining discipline in the plant. On the other hand, the
General Counsel asserts that AhI acted in bad faith, and we have seen that Ahl
knew that the Union had requested the reinstatement of John Baltzley and Phillips,
that the six employees were striking in protest of Ahl's rejection of that request,
and that the picket signs reflected the Union's approval of the strike. I do not
believe, however, that Ahl's good or bad faith need be explored further and a
specific determination made. The law dictates the conclusion that the discharge
of the strikers made a free election impossible.
The Respondent asserts that the Union's majority was not dissipated by the 6
discharges, that percentagewise the majority was 100 both before and after the dis-
charges, and that, had the Union "proceeded with the election," it "would surely
have been certified as the bargaining agent. . .. . While it may be that the Union
would have won an election, if conducted before several new employees were hired,8
it cannot be said as a fact that such is true. On the other hand, it is a fact that the
invalid discharges, on the day of a representation hearing, of two-thirds of the em-
ployees in an appropriate unit restrains and coerces the remaining one-third employees
in their exercise of the ballot. This is so regardless of*an employer's good faith in
erroneously concluding that the discharges could be made lawfully. As was said in
N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C. A. 4), an invalid discharge
"goes to the very heart of the Act." A fundamental principle of the Act is that
the inevitable effect of such a discharge is to restrain and coerce employees. It fol-
lows that the Respondent's conduct made a free election impossible. That being
so, the Union had no realistic course of action but to withdraw its petition in the
representation case and to have its majority status determined in a complaint proceed-
ing. See Aiello Dairy Farms 110 NLRB 1365. In summary, I find that on Septem-
ber 21, 1956, the Respondent refused to bargain collectively in violation of Section
8 (a) (5) and (1) of the Act.
8 On October 2 the Respondent hired a new employee, on October 19 it hired another, on
October 23 still another, and on October 29 two others. Additional persons were hired
thereafter. The transcript at page 56, line 15, recites that Earl Toner was hired on
October 29, whereas at page 98, lines 11 and 12, Toner's date of hire is recited as
October 19. My trial notes reflect that the latter date is correct, and the transcript at
page 56, line 15, is hereby corrected accordingly.
SUMMIT MINING CORPORATION 1675
D. The refusals to reinstate
On November 12, 1956, Harold Baltzley, Orner, and Southerly ceased their par-
ticipation in the strike and requested reinstatement. Having been discharged in-
validly while striking, those three employees were entitled to reinstatement upon
ceasing their strike activity and applying therefor. It was not until the next Novem-
ber 23, December 20, and February 23 that Southerly, Orner, and Baltzley, respec-
tively, were reinstated. By the failure to reinstate them promptly, the Respondent
violated Section 8 (a) (3) and (1) of the Act.
The remaining three strikers did not request or receive reinstatement insofar
as appears, and there is no issue on this subject because of certain conduct in which
they engaged as strikers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
:shall recommend that it cease and desist therefrom and that it take certain affirmative
.action designed to effectuate the policies of the Act.
It has been found that the Union represented a majority of the employees in the
.appropriate unit and that the Respondent refused to bargain collectively with it.
Accordingly, I shall recommend that the Respondent, upon request, bargain with the
Union as the exclusive representative of the employees in the appropriate unit.
It has been found also that the striking employees were invalidly discharged on
,September 21, 1956, that Southerly, Orner, and Harold Baltzley continued their par-
ticipation in the strike until November 12 when they applied for reinstatement, and
.that they were reinstated, respectively, on the next November 23, December 20, and
February 23. The General Counsel contends, in accord with Leach et al. d/b/a
.Brookville Glove Co., 114 NLRB. 213, that back pay for the three named employees
should commence upon the date of the requests for reinstatement, rather than upon
the earlier date of discharge, since they were on strike when discharged and con-
tinned their strike activity. I shall recommend that the Respondent make whole
each of the three named employees for any loss of pay he may have suffered by
reason of the Respondent's refusal to reinstate him earlier than the date given above,
by payment to him of a sum of money equal to that which he normally would have
earned from the date of the request for reinstatement to the date of reinstatement,
.less his net earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during
said period, the payment to be computed upon a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289. See also
N. L. R. B. v. Seven-Up Bottling Company, etc., 344 U. S. 344. I shall recom-
mend also that the Respondent preserve and make available to the Board or its
.agents, upon request, for examination and copying, all payroll records, social-
.security payment records, timecards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under the terms of these
recommendations.
I shall recommend further, in order to make effective the interdependent guaran-
ties of Section 7 of the Act, that the Respondent cease and desist from, in any
.manner, infringing upon the rights guaranteed in said Section. N. L. R. B. v.
Express Publishing Company, 312 U. S. 426; Entwistle Manufacturing Company,
.supra.
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. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All of the Respondent's production and maintenance employees, excluding
office clerical employees, professional employees, technical employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
.,collective bargaining within the meaning of Section 9 (b) of the Act.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union, on August 23, 1956, was, and at all times thereafter has been,
the exclusive representative of all employees in such unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (5)
of the Act.
5. By discriminating in regard to the hire and tenure of employment of Harold
Baltzley, Terry Baltzley, Richard Orner, Richard Scott, Jack Southerly, and Ray-
mond Wagner, and each of them, and 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.
6. By interfering with, restraining, and coercing its employees in the exercise
of the 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.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recomendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Cement, Lime & Gypsum
Workers' International Union, AFL-CIO, or in any other labor organization
of our employees, by discharging or refusing to reinstate any of our employees
or by discriminating in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment.
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 or-
ganizations, to join or assist United Cement, Lime & Gypsum Workers' Inter-
national Union, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage in concerted'
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, 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 authorized in Section 8 (a) (3) of the National Labor
Relations Act.
WE WILL, upon request, bargain collectively with United Cement, Lime &
Gypsum Workers' International Union, AFL-CIO, as the exclusive representa-
tive of all employees in the following bargaining unit with respect to rates of
pay, wages, hours of employment, and other conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All our production and maintenance employees, excluding office clerical
employees, professsional employees, technical employees, guards, and
supervisors as defined in the Act.
WE WILL make whole Harold Baltzley, Richard Orner, and Jack Southerly
for any loss of pay each of them may have suffered as a result of our discrim-
ination against him.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members in good standing of United Cement, Lime & Gypsum
Workers' International Union, AFL-CIO, or any other labor organization, except to
the extent that this right may be affected by an agreement in conformity with Sec-
tion 8 (a) (3) of the National Labor Relations Act.
SUMMIT MINING CORPORATION,
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.