Precision Castings Co., Inc.

In the Matter of PRECISION CASTINGS COMPANY, INC. and NATIONAL ASSOCIATION OF DIE CASTING WORKERS, REGION No. 5, AFFILIATED WITH C. I. O. Case No. C-0360.-Decided March 31, 19.43 Jurisdiction : die castings manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: specific allegations of, dismissed. Discrimination: respondent's deprivation of-admitted economic strikers as a group of their seniority, and postponement of their reinstatement in contrast with the immediate reinstatement with full seniority of other employees who, though, absent during the strike, denied connection therewith; respondent's contention that strikers lost their seniority and automatically suffered postponement of reinstatement because they were absent from work "without justifiable cause" within the meaning of the forfeiture provision of seniority rules established by its contract with labor organization, since disestablished as company-domi- nated in another proceeding, rejected ; respondent's refusal to reinstate 4 of the strikers allegedly because of conduct antedating the strike held as a matter of fact to have been discriminatory ; respondent's refusal to reinstate another 4 of the strikers allegedly because of charges of violence made by the union's rival, a company-dominated organization, and otherwise unsupported held as a matter of fact to have been discriminatory in view of respondent's reinstate- ment of other employees who, though similarly charged with equally grave offenses, denied their participation in the strike ; charges of discrimination in refusal to reinstate 11 strikers convicted of contempt by State Court for disobedience of its order during strike, dismissed. Remedial Orders : restoration of seniority, reinstatement, and back-pay awarded. Mr. Thurlow Smoot and Mr. George H. O'Brien, for the Board. Stanley d Smoyer, by Mr. Harry E. Smoyer and -Mr. Eugene B. Schwartz,:of Cleveland, Ohio, for the-respondent. Mr. Edward Lamb, of Toledo, Ohio, for the-Union. - Mr.-William F. Scharnikow, of counsel to the Board DECISION -_- - r - . - AND ORDER STATEMENT OF CASE Upon a' charge duly filed by National Association of Die Casting Workers, Local No. 5, affiliated with the C. I. 0., herein called the 48 N. L R B., No. 101. 870 PREiCISION' CASTIN'G'S COMPANY, 'INC. 871 Union, the National Lttbor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated January 31,1942, against Precision Castings Company, Inc., Lakewood, Ohio, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleges that the respondent, at its Lakewood, Ohio, plant, herein referred to as the Cleveland plant, on or about July 15, 1940, and at all times thereafter "refused to reinstate, to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges," 34 named employees,' "for the reason that said employees were leaders and members of and active in behalf of the Union" and "had engaged in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection." The complaint further alleges that the respondent, "from December 1936, prior thereto, and at all times subsequent thereto," interfered with, restrained, and coerced its employees at the Cleveland plant in their exercise of the right to self-organization by certain acts and conduct of its officers and foremen including Maurice Tarr,' by refusing and neglecting to comply with the Board's order of March 10, 1941, in Case No. C-1658,3 and by continuing to engage in and presently engaging in the unfair labor practices from which it was therein ordered to cease and desist. The employees so alleged to have Bishop, Albert Biss, Ben Biss, John Bosko, John Cobler, Winslow Czekaj, Ben Di Peppino, Luigi Dotchkoff, Boris Dotson; Cecil Smith Dotson, Scott Enatenok , Michael Foote, Norman France, Anthony Gallagher, Richard Gallagher, Richard, Jr. Heeder, William Holler, Edward been discriminated against are the following: Kermendy, Frank Klamorick, William Latevola, Phillip Mantels, Herbert Manteli, Ralph Matson, Edwin Mulqueen, John Palo, Edward Paukner, Otto Robbins, Rufus Benjamin Ronges, Joseph Selavko, Harry Stephen, Russell Vajdik, Joe Wing, Robert Yavorsky, Alex Zeal, Michael z Designated in the complaint as "Morris" Tarr. a Matter of Precision Castings Company, Inc. and National Association of Die Casting .Workers, Local Nos 5 affiliated with C.' I. C., 30 N. L. R. B. 212. 872 DECISIONS '0'F "NATIONAL LABOR R.ELLATZONLS- BOARD - ., On•June 27; 1942, 'the respondent (filed amotion fora bill of particu- lars with respect to certain allegations of, the complaint,,and, subject to its - rights under-;said , motion,, its answer ' admitting -certain allega-' tions of the complaint -as to the .nature ,of its business and denying that it had engaged 'in,the 'unfair ;labor ;practices ,alleged. , The-answer further alleges that previous proceedings against the respondent- in_ Cases Nos. C-1658 and -C-185.7 and the Board's Decisions and Orders. therein 4 constitute a bar to,the present proceeding except insofar as the complaint herein alleges interference, restraint, and coercion by the respondent subsequent to March 6, 1940. Pursuant to notice, a hearing was held on July 7, 8, 9, 10, and 11, 1942, at Cleveland , Ohio, before Walter Wilbur , the Trial Examiner- duly designated by the Chief Trial Examiner . The Board and the respondent were - represented by counsel and participated in 'the hearing. Full opportunity to be heard , to-examine and cross -examine witnesses , and to introduce evidence bearing on the issues was afforded all parties., • The Trial Examiner ,,granted,in part the-,respondent's motion for . a bill of particulars, and 'then on motion by the respondent -struck from the bill furnished by counsel for the Board certain allegations of new matter not contained in the complaint. On motion by the respondent , the Trial Examiner also struck the allegations of the com- plaint , concerning : ( 1) the neglect and refusal of the respondent' to; comply with the Board 's order in Case No. C-1658, which was based upon an amended ,complaint issued on March 6 , 1940, and ( 2) the con- duct of the respondent prior to March 6, 1940 . The Trial Examiner, however, denied a motion by the' respondent •to strike the complaint in its entirety. The Trial- Examiner also d'en'ied a lnotion,by counsel for the Board to strike the paragraphs of the answer alleging that the proceeding in Case No. C-1857 is a bar to the present proceeding,. but in effect overruled the defense thus alleged .' At the conclusion, of the respondent's case counsel for the Board offered testimony in rebuttal and then moved for a continuance for the purpose of calling- additional witnesses. The motion was'denied. At the close of the 430 N L R B 212 and 37 N. L. R B. 774. 5In Case No. C-1857, the Board dismissed the complaint without prejudice, on the grounds that the Agreed Statement of Facts upon which that case was submitted and'. which constituted almost the entire record as to the unfair labor practices there alleged, stated 'only' evidentiaryfacts, ,that conflicting, inferences as to the ultimate facts might be- drawn therefrom, and that it was therefore inadvisable to decide the, controversy-without "a written record of testimony " 37 N L R B. 774, 783 During the hearing in the present proceeding, the Trial Examiner rejected the offer of the respondent to introduce in evidence the Agreed Statement of Facts from the previous proceeding However, all the-,, schedules to the Agreed Statement and most of the facts covered therein-were-incorporated' in the present record either as exhibits or by way of stipulation.' Moreover, the 'respondent was in,a-position during the•,present bearing to adduce testimony as to all the facts, and, did so In any event, the rejected exhibit, which we have examined and,considered, would not alter our findings and conclusions, as set forth below, based on the entire record herein. The ruling of the Trial'Examiner excluding the Agreed Statement of Facts is hereby affirmed. 1 PRECISION CASTINGS -COMPANY, INC. 873 hearing, the Trial Examiner granted motions 'by counsel for -the Board -and the respondent to amend the complaint and the answer to conform, to he, proof as to names, dates, and other-1 ormaj- matters....: During .the course of the hearing, the Trial Examiner, made rulings on 'other motions and on the admissibility of evidence. The Board has ;reviewed all the rulings of the Trial Examiner and finds that no, prejudicial error was committed. _ The rulings are hereby affirmed. At the conclusion of the hearing, opportunity was afforded the parties to argue orally -before the Trial-Examiner. - No arguments, were made. Thereafter, the respondent and counsel for the Board filed briefs with the Trial Examiner. •On October 2, 1942, the Trial Examiner filed his Intermediate Re- port, copies -of which were duly served upon the respondent,and the Union. He found that the respondent had engaged in and was en- gaging in unfair labor, practices affecting commerce, within the mean- ing of Section 8 (1) and (3) and Section •2 (6) and (7) of the Act, and recommended that the respondent cease and desist from its un- fair.labor..practices-,and,that, it,take,.certain.aflirmati^ve action to ef- fectuate the policies of the Act. On October 29, 1942, and November 5, 1942, respectively, the Union and the respondent filed exceptions to the Intermediate Report and briefs in support of their exceptions. Pursuant to notice and at the request of the respondent, a hearing was 'held before the Board at Washington, D. C., on January 12, 1943, for the purpose of oral argu- ment. The respondent was represented -by counsel and participated in the hearing; :the Union did not -appear. The Board has,considered the exceptions and. briefs of the respond- ent and the Union and, insofar as the .exceptions are inconsistent with the findings, conclusions, 'and order ,set forth below, finds them to be w ithout ;merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS'OF TIHE ,RESPONDENT'6 The respondent is, hnd has been since April 21, 1927, a corporation organized under -and existing by virtue of the laws of the State of New York, having its principal office and place of business at Syra- cuse, New York. 'The respondent operates and maintains three plants located respectively at Syracuse, New York; Fayetteville, O The findings in this Section are based upon admissions In the respondent 's answer, the testimony of A. D. Weigolt, superintendent of the Cleveland plant, and a stipulation by the respondent's counsel that there 'had been no substantial change in the business of the respondent from the facts-as found by the Board in Matter of Precision Castings Company, Inc. and National Association 'of Die,Casting Workers, Region 5, affiliated with C • I. 0, 37 N. L. R. B 774. 874 DECISION'S OF NATIONAL' LABOiR'= RELATIONS BOARD New- York ; and Lakewood, Ohio. At 'these plants the respondent is engaged in the production of die castings ,for the automotive trade t and the utensil industry. The present proceeding involves only the plant at Lakewood,- Ohio, 'which is known as the Cleveland plant. During the year 1941 sales of products manufactured at the Cleveland plant.amounted to-more than. $850,000, of which approximately' $250,- 000 represented-products sold and shipped to purchasers outside the State of Ohio. During the same period, the respondent in its Cleve- land plant used raw materials valued at approximately $340,000, of which 35 to'40 percent in value were purchased at, and shipped-from, points outside the State of Ohio. The respondent admits,that it is engaged in commerce, within the meaning of the Act. • r II. THE ORGANIZATION ,INVOLVED National Association of Die Casting Workers, Region No. 5, is a labor organization affiliated with the Congress of Industrial Organi- zations. It admits to membership employees of the respondent at its- Cleveland plant. III. THE UNFAIR LABOR PRACTICES A. The discriminatory refusals of reinstatement •1. The strike; the respondent's reinstatement procedure On June 25, 1940, a strike, authorized by the Union, occurred in the respondent's Cleveland plant. It is stipulated that the strike was the consequence of a_ current-labor dispute unrehited to any unfair labor practice on the part of the respondent. At the time, there were 191 employees on the plant pay roll. A majority of these em-' ployees absented themselves from work during the' strike. - Towards the end of the-strike, 20 of these absentees 7 communicated directly with their foremen, or with A. D. Weigolt, the plant superintendent, stating their willingness to report ,to work. The strike lasted until July 15, 1940, and while it was in progress the respondent employed no new production workers: However;; be- cause of the interruption in' its production schedules, the'respondent 7 Toczek, Joseph Koncelik, Alvin Soska, Leo Ellis, Horace' Jungeberg, Arthur Elias, Charles,. Hembly, John Kopchak, Joseph, Jr., Leach, Norman McAllister, Richard Miller, Edward W. Searle, George Ptaszek, Michael' Ptaszek, Albert Miller, Kingsbury R. Banas, Andrew Esz, Michael; Thiede, Helmut ,,, Crane,,, John Wotowiec, Mathew PRECISION CASTENGiS OOMPAN'Y, ENC. 8Th diverted to its - Syracuse plant some ofthe work in process of produc- ' tion at `Cleveland and shipped to its Syracuse plant some of the dies and tools from its Cleveland plant. On July 13, 1940, Weigolt• learned through the press that termina- tion of the -strike was imminent . In -anticipation of the return to work -of the - employees participating in or affected by the strike, Weigolt conferred with J. W. Knapp, who was then the respondent's vice president -and general manager, and thereafter , in company with J. - F. Millspaugh ,, sales manager of the Cleveland plant; met with counsel for the respondent at Cleveland , for the purpose of formulat- ing a procedure to govern reinstatement. A form of application for reinstatement and a ,form of notice to employees outlining the condi- tions of reinstatement and the reinstatement procedure were prepared with the aid and advice of counsel, and were printed. The adopted, form of application for -reinstatement was as follows: PRECISION CASTINGS COMPANY, INC. CLEVELAND PLANT 12600 Berea Road APPLICATION FOR REINSTATEMENT 1. Name of Applicant-------------------------------------------- 2. Mail Address-------------------------------------- ---- ----- - -3. Former Department______________________ 4. Last day worked in 1940_______________________________________ 5. Reason for absence: ( ) Illness ( ) Vacation - ( ) Absence with leave of Mr. ____________ ( ) Intimidation June 25, 1940 to date ( ) Absent from work without leave and not because of intimidation. 6. If my application is accepted I agree to perform my duties in a workmanlike manner and to do my part toward the successful opera- tion of the plant ._____________------------------ ( ) Yes ( ) No 7. I have read the "Notice • As To Reinstatement" dated July 15, •1940 which was handed to me with this application and I make it under said rules with the understanding that by so doing I shall not be considered to have waived any of my rights under the National Labor Relations Act ----------------------------- ( ) Yes ( ) No -------------------------------- Date Filed____________________ Date Accepted-__•_ Signature of Applicant ,876 DECISIONS OF NATIONAL LABOR REILLATIOMS BOARD The notice,, dated July. 15, 1940,. which the respondent adopted for the purpose of informing the employees of the conditions of reinstate- ment, provided (1) that applications for reinstatement would be re- quired of "all persons"- not rehired or reinstated prior to July, 14, 1940; (2) that "persons" who had not worked during the period from June 25 to, July 15, 1940; because .of illness, vacation, absence with leave, or intimidation, would be reinstated in the order of, their sen- iority as of June 24, 1940, as fast as 'available work required their services; and (3) that `,`persons" not within the foregoing classifica- tions and who had not worked during the period from June 25 to July 15, 1940, would be reinstated as fast as available work required their services,, in the order of their applications, but with new sen- iority from the day they were returned to work, except that "persons" who, during that period, had "engaged in acts of violence, against the person or property of any employee of the company which act or acts are deemed by the,management to be of such nature as to prevent the former from working satisfactorily with the latter," or who had "eiigaged in acts of violence against the property" of the respondent, or who had "willfully attempted to prevent the operation of the plant . . . except by merely absenting themselves from work without leave," would not be reinstated immediately, but that applications of such persons would be accepted and "considered for future action." By this notice, the respondent informed its employees, in substance, that all applicants for reinstatement who had been "absent from work without leave and not because of intimidation" or who had been absent for any reason except illness,, vacation, leave from the respondent, or intimidation could at best expect to be reinstated without seniority. The strikers obviously fell within this group which was to lose their seniority. The respondent asserts that the form of application which i's adopted was designed to reveal whether the individual applicants had violated the plant's seniority rules, which provide inter alia that `. `an employee shall lose his senior- ity... , . if' lie remains away-,from his work for three days or longer without justifiable cause and without notifying the Employer of his intended absence." Superintendent Weigolt, to whom the respondent entrusted the matter of reinstatement, testified that, in his opinion, the strikers were absent from work "without justifiable cause" and had,, therefore, lost their seniority. He further admitted that the purpose of the respond'ent's reinstatement procedure was to afford the respondent a basis for classification of the employees who had not reported for duty during the strike into two categories, one compris- ing `those' employees' who had voluntarily 'pa'rti'cipated' in `and asso- ciated themselves with the strike, and the other comprising those employees who had been absent for other reasons. The respondent's seniority rules, including the above-quoted pro- vision for loss of seniority because of absence, were first adopted on PRECISION CASTINGS GOMPAN'Y, INIC. - 57,7 ,.or 'about November 25, 1939, in a contract between the respondent. ,and Precision - Employees Association, a labor organization herein -called the- P.' E.A. On March 10, 1941; the Board, in "its Decision and Order in Case No. C-1658, found the P. E. A. to be a dominated labor organization and ordered the respondent to disestablish it as -the bargaining.-agent of its employees and to cease giving-effect to the contract between the respondent and the P. E. A.s On July 14, 1940, a Sunday, the Union voted to end the strike. -On the following morning, a number of the employees who had not worked during 'the strike appeared at the plant. A committee ap- pointed by the Union, and accompanied by the mayor of Lakewood,' called on Superintendent Weigolt to discuss the situation. Weigolt advised the committee of the conditions on which reinstatement would be effected. After this conference, the Union held an impromptu meeting at which the. respondent's conditions were discussed and the employees were advised, as the only means of, getting back their jobs, to comply with the respondent's requirement for the filing of written applications.- It was suggested, however, that, instead of adopting -the respondent's terminology of "absent from work without leave and -not because of intimidation" as the stated "Reason for absence," the strikers substitute the words "on strike" on the application form. In the course of the afternoon of July 15,, 51 employees applied to the respondent for reinstatement. The procedure in each, case was substantially the, same; The applicants were admitted, one at a time, -to Weigolt's office, where each was furnished with a copy of the appli- cation for reinstatement, in the form hereinabove described, to which was stapled a copy of the notice of the conditions of reinstatement. 'The applications were filled out in Weigolt's presence and handed to Weigolt Personally. Those applicants for reinstatement who indi- -cated on their application forms that they had not worked during the -period of the strike because of illness, vacation,, absence with leaye, •or- intimidation, -were, advised that they would be reinstated as soon .as work was available. - Those applicants whose answers to questions on the application form identified them as strikers were advised that, their applications would be later considered.9 30 N L. R. B. 212 The Board's Order was subsequently enforced by the Sixth Circuit 'Court of Appeals N L R B v Precision Castings Co , 130 F . ( 2d) 639, 9 The findings in this paragraph are based principally on the testimony of A D Weigolt, plant superintendent Weigolt testified that he personally inspected each application as' it was completed ;. that be advised those who checked any of the 'i'first four subdivisions of question 5 of the application that they would be-taken back as soon as work was available ; that be advised those who had written "on strike," or who had, checked the fifth subdivision that their cases would be considered ; and that subsequently he made two separate files of the applications received; the'only' basis for'the separation being 'whether the applications showed the reason for absence to be one of the , first four subdivisions of question 51, or the fifth subdivision; all' applications ' beariiig the end 'orseirient "on strike" being considered as equivalent to those which showed subdivision fifth of question 5 as the cause of absence assigned 878 DECISIONS OF -NATIONIAL - LABOiR R.ELATLONNS BOARD Between July -16 and November"- 5; -1940, 37 , additional applications were received, the procedure, so far as the record indicates; being'sub- staritially that which had been followed on July 15. The - following table summarizes the, applications according to their dates and the reasons assigned for absence: - ' - Date Num- ber of map of ' 111- ness Vaca- tion Absence with leave Intimi- dation Absence with- lea out ve On., strik Norea- son as- signed Total July 15--------------------- 51 -------- a [3] -------- 26 2 23 ------- 51 July 16--------------------- 7 ------- a [1] -------- 3 1 3 -------- 7 July 17-------------------- ' 5 - -- 1 -------- '- 4 r 5 July 22--------------------- 5 1 3 1 - July 23--------------------- 1 1 - -- -------- -------- July 25--------------------- 1 - - - - - --- ------- - - -- -------- -------- I July 26--------------------- 1 --- ------ -------- 1 -- -------- -------- ------ 1 July 29--------------------- 1 -------- -------- 1 -- -------- -------- 1 July 30-------------------- 1 ---- ---- -------- 1 -- -------- ------- -------- July 31--------------------- 1 -------- -------- 1 --- -------- ------- August 2-------------------- 1 ------- -------- -------- - ^- `------- 1 1 August 8-------------------- 1 -------- -------- -------- -- -------- ------- 1 1 August 13------------------- 1 -------- -- 1 -- ----- -- ------=- ---- --- August 16------------------- 1 -------- -------- __-__ ___ __-----_ -----___ ____---- August 19 1 -------- _ __--_--_ 1 August 21------------------- 3 -------- -------- 2 -------- -------- ------- 3 August 22------------------- 1 -------- -------- 1 -------- ---- --- -------- August 26------------------- 1 ------- -------- 1 ------- ------ -------- 1 August 29------------------- - -------- -------- 2 ------- -------- ------- 2 September 3---------------- 1 -------- ---- 1 -------- ------- -------- 1 November 5 1 -------- -------- 1 ------ -------- - - 1 88 2 [5] 19 -3 - 31 • 1 88 a Intimidation was assigned as additional reason for failure to report to work. b Application of Wm. K. Green. The 34 applications which indicated'either that 'the' applicants'had been "on strike" or that they had been "absent without leave-and not, 'because of intimidation," were.filed by the 34 employees named in th'e complaint herein as having been discriminated 'against by the respondent. - The applicants for reinstatement wlio inferentially denied partici- pation in the strike by the manner in which they filled, out their applications; and 25 additional employees who were not required by the respondent to fill out applications, were reinstated with full sen- iority in the first `available jobs without regard to their' seniority status relative to that of the strikers. Of the 25 employees who were thus reinstated without filing an application, 20 were the employees ,who had informed the respondent towards-the end of the strike that they were willing to return to work. No explaliation was given"by the respondent for.-not requiring written applications from the other ,5110)who included' Carl Webbeking,'president of the P. E.'A.' In all, 56 other employees' were reinstated before the first., admitted ^ strikers were 'permitted to return to work bn'August 14, 1940.' On and after ,0 Helen 'Broz, W. Cook, Staley Krupa , Edgar Musgrove, and Carl Webbeking, 4 C,; ;; ^' PREi01SION CASPLNG4S,'GOMPAiNY, PNC.••; 879, that datei.16;strikers were reinstated with new seniority-,, and. upon, the, following -dates,: Luigi Di' Peppirio_------------ __ August 14-1J940 Otto'Paukner -___________________________ August 14,• 1940 Alex Yavorsky__________________________________ August 14, 1940 Winslow; Cobler -------------------------------- August 15, 1940 Ralph Mantel__________________________________ August 15; 1940' ,Norman Foote=___-____________________________ August 16, 1940 William Klamorick----------------------------- August 16, 1940 Edwin • Matson'________________________________ August 16, 1940 Rufus Benjamin Robbins________________________ August 16, 1940 Michael Enatenok_______________________________ August 19, 1940 Russell Stephan--------------------------------- August 19, 1940 Anthony France -------------------------------- August 20, 1940 Joe Vajdik___'_____________________________%___ August 22, 1940 Philip Latevola______________________________ September 10, 1940 Edward Holler________________________________ January 13, 1941 Harry Selavko________________________________ January 13, 194112 Although normal production was resumed at the Cleveland plant within 2 or 3 months after the strike and the respondent hired 84 new employees for work at the plant between September 3, 1940, and January 6, 1941, none of the other strikers, all of whom had filed applications, had been offered reinstatement at the time of the hear- ing. Weigolt testified that their cases were closed, so far as their status as applicants for reinstatement was concerned. As we have already found, the respondent engaged no new em- ployees during the strike. The respondent contends that its, rein- statement procedure was designed to effect the, reinstatement of its employees in the order of their seniority, taking into account the fact that some 'of them had lost their seniority because of their absence from work during the strike "without justifiable cause," within the meaning of the respondent's seniority rules. The respondent thus based its reinstatement procedure on the premise that the strikers had forfeited their seniority. ' It is clear that, although the form of application for reinstatement avoided reference to the strike; its purpose and effect were to distinguish the voluntary participants in the strike from those employees who were willing to state that they had been absent during the strike for other reasons. This discrimination against the admitted strikers is further evi- denced by the manner in which the respondent administered its announced reinstatement procedure. Although the reinstatement application was framed ostensibly to reveal any absence "without 11 Although the conditions of reinstatement , as set forth in the respondent's notice, pro- vided for new seniority from the date employees in the deferred classification returned to work, the respondent in fact reinstated the 16 strikers on the basis of 6 months' accrued seniority. - '12 Of the 16 employees reinstated , 7 subsequently left the employ of the respondent, viz: Winslow Cobler , Michael Enatenok, William ' Klamorick , Harry Selavko, Russell Stephan, Alex Yavorsky, and Edward Holler. 11 880`' DECISIONS' OFF 'NATIO\1AL LABOR` R n TbONS B,0`ARD t justifiable cause," and not merely absence on, strike, the respondent did not insist upon the filing of applications by 25 of the absent em- ployees whom it had no reason to suspect of strike participation. Of these 25 employees, 20 had orally indicated to the respondent towards the end of the strike that their absence was-due to "intimidation,` thereby making it clear that they were not participating in the strike.13 As to the 5 others, 1 of whom was the president of the P. E. A., the re- spondent gave no explanation of why it did not require them to file applications disclosing the reasons for their absence during the strike. This relaxation of the rules for reinstatement and the respondent's ac- ceptance at face value, without investigation, of. the reasons for ab- sence given in the applications which were filed, after having indi- cated to the employees which reasons the respondent would consider justifiable, demonstrate the respondent's indifference as to whether its procedure in fact revealed unjustified absences and its willingness to accept a striker's open repudiation of his connection with the strike as the price of immediate reinstatement with full seniority. Post- ponement of reinstatement and loss of seniority were thus limited to those employees who admitted their participation in the strike and thereby affirmed their loyalty to the Union. We are convinced and we find that the respondent's reinstatement procedure was conceived and executed to deprive those of the em- ployees who 'admitted participation in the strike of their seniority, and also to postpone their reinstatement. The respondent's contention that, under the seniority rules estab- lished by its contract with the P. E. A., the strikers automatically forfeited their seniority, and that the respondent was compelled to recognize that fact, is without merit. Since the P. E. A. has been found to be a dominated organization and since the respondent has been ordered to disestablish the P. E. A. as a collective bargaining agency and to cease giving effect to its contract with the P. E. A.,14 the case involves no question of a seniority or no-strike provision in a collective contract made as the result of genuine collective bargaining between the respondent and a bona fide labor organization. The sen- iority provision upon which the respondent relies is no more than a company rule, and an employer may not so apply or administer a seniority policy' is to penalize or discriminate against employees who have exercised their right under the Act to engage in concerted activity. 13 In its brief, the respondent asserts that these 20 men had returned to work early, in the morning of July 15, 1940, before the respondent's plan for reinstatement became effective. The 'respondent' s notice of the terms and conditions of reinstatement provided , however,. that "applications for reinstatement will be . . . required of all persons not rehired or reinstated prior to July 14, 1940." 14Matter of Precision Castings Company, Ino, and National Association of Die Casting Workers, Local No 5, affiliated with C I. 0 , 30 N. L. R: B. 212. `PRECISION CASTTN S COMPANY, INC. 881' We find, as did the Trial Examiner, that the respondent, by, adopt- ing • and' following the, above-described reinstatement procedure, dis- criminated in regard to the hire and tenure 'of employment and the terms and conditions of employment of employees who admitted their participation in the strike, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the-exercise of the rights guaranteed in Section 7 of the Act. 2. The respondent's refusal to reinstate Ben Czekaj, Boris Dotchkoff, Frank Kermendy, and Edward Palo, and its delay in reinstating- Edward Holler Employees Ben Czekaj, Boris Dotchkoff, Frank Kermendy, Edward Palo, and Edward Holler were members of the Union, participated in the strike, and indicated in their applications for reinstatement that • they had-been "on strike." The respondent has not reinstated them. As to these employees, Superintendent Weigolt testified that prior to, but not within, the 5 months preceding the strike, Foreman Bub had repeatedly complained that Dotchkoff was constantly arguing concerning his compensation and the type of jobs he was given; that prior to, but not within, the month preceding the strike, Foreman Francoeur had repeatedly complained that Czekaj, Kermendy, Palo, and Holler, were unruly and were creating dissension between them- selves and the other men; 15 that Weigolt had discussed the conduct of these men with the foremen and had talked with several of the men themselves on different occasions more than a month before the strike; but that at no time before the strike was any consideration given to their discharge. Weigolt further testified that, after the strike, he decided to reinstate the five men in question; that he spoke to the fore- men to learn whether there were jobs available for these men, as he did before reinstating any of the strikers; that Foreman Bub objected to the reinstatement of Dotchkoff and Foreman Francoeur objected to the reinstatement of Czekaj, Kermendy, Palo, and Holler, because of their conduct before the strike about which the above-mentioned' complaints had been made; and that these men were therefore not reinstated. Holler, however, was reinstated on January 13, 1911, after having told Weigolt that he would change his behavior.. Wei- golt testified that he would have reinstated the others if they had told him the same thing, but that, although he had their addresses, he did hot communicate with them to ask whether they were willing to do so. Stated,briefly, the evidence shows that the respondent used the strike as an occasion for terminating the employment of these employees for reasons antedating the strike, and not previously regarded by the I5 Francoeur was not available as a witness at the hearing, and the respondent did not call any of its employees to testify directly- as to this alleged dissension Palo denied' It. 882, DECISIONS- OF -NATIONAL LABOiR. -RELATIONS-- BOARD respondent as warranting, such disciplinary action.. In view- of the respondent's treatment of the strikers, as a whole,, we are convinced and we find that the respondent' in fact denied these employees reinstate- ment because of. their union membership and their participation in the strike.l" By thus refusing to reinstate Czekaj, Dotchkoff,- Ker- mendy, and Palo, and delaying the, reinstatement of. Holler, the re- spondent discriminated in regard to A heir hire and- tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its _ employees in the-ex- ercise of the rights'guaranteed in Section 7 of the Act. 3. The respondent's refusal to reinstate Albert Bishop, Joseph Ronges, Robert Wing, and Michael Zeal Employees Albert Bishop, Joseph Ronges, Robert Wing, and Michael Zeal, like Czekaj and the others discussed above, were mem-, bers of the Union, participated in the strike, indicated in their.appli- cations for reinstatement that they had been "on strike," and have not been reinstated. On July 12, 1940, a warrant was issued by'the Municipal Court of Lakewood for the arrest of Bishop, for an alleged assault and battery on Clarence Decker, another employee. On December 23, 1940, after numerous continuances, the case was "continued indefinitely." On July 20, 1940, the P. E. A. requested a conference with the re- spondent and submitted to the ' respondent a memorandum in which it complained of the conduct during the strike of 37 of the respond- ent's employees, including Bishop, Ronges, Wing, and Zeal. A few weeks later, representatives of the respondent, including Weigolt and counsel for the respondent, conferred with a committee of the P. E. A., and the respondent's counsel questioned a number of alleged witnesses of the acts charged in the P. E. A. memorandum. Affi- davits as to some, but not all, of these charges were also presented to the respondent. At no time did any representative. of the respond- ent question Bishop, Ronges, Wing, Zeal, or any of the other em-a ployees mentioned in the memorandum. So far as the affidavits concerned Bishop, they charged him only with the alleged- assault for which he was, arrested. Ronges was mentioned in but a single affidavit as being "among those outside the plant" when another employee was struck by an unidentified person for having refused to join the pickets. Wing- was charged, merely in the unsworn memorandum of the P. E. A., with having been one of a group of men of which unidentified members threw stones at 16 Cf. N. L R. B. v. Lund, 103 F. (2d) 815, 819 (C. C. A. 8) ; Hamilton-Brown Shoe Co. V. N. L. R. B., 104 F. (2d) 49, 53 (C. C. A. 8) ; Hartsell Mills Co. v. N. L. if. B., 1111 F. (2d) 291, 292 (C C. A 4 ) : Burk Bros. v. N. L. if. B., 117 F. (2d) 686, 687 (C. C. A. 8) ; N. L. if. B. v. Blanton Co , 121 F. (2d) 564, 570 (C. C. A. 8). PRECISION CASTINGS COMPAI1]Y, INC. 883, automobiles, and with having said that an assaulted non-striker got what he deserved. Zeal was charged, also only in , the unsworn P. E. A. memorandum , with having tried to run a non; strike r's auto-, mobile off the road. Charges of the same general character were also made in the memo- randum , submitted by the-P. E. A. against : ( 1) Czekaj , Kermendy, and Palo, whom Weigolt testified he would have reinstated but for their foremen's objections ; (2) 15 of the 16 strikers whom the re- spondent reinstated ; and (3 ) Harold Mantell, Joe Kerkes, John Stanek, and David Witzke, who ascribe their absence during the strike to "intimidation " and whom the respondent reinstated with full seniority. The respondent contends that it refused reinstatement to Bishop, Ronges, Wing, and Zeal, because of its reasonable belief : ( 1) from the criminal proceeding against Bishop, that he had committed the as- sault and battery with which he was charged; and (2) from the charges made and the affidavits submitted by the P. E. A., that Ronges, Wing, and Zeal had participated "in unlawful conduct" during the strike. The charges ii question were made by the P. E. A., the Union's rival and an organization dominated by the respondent; the respondent's investigation of these charges was ex parte; and, as has already been noted, the criminal proceeding °against Bishop was, in effect, dismissed . Under the circumstances , there was no reasonable basis for the respondent to believe that the charges were true. In any event, the respondent decided to reinstate 22 other 'employees and did, in fact , reinstate 18 of them, despite charges of equal gravity made against them in the memorandum prepared by the P. E. A. If these employees were acceptable despite their alleged misconduct, it' is difficult to believe that Bishop, Ronges, Wing, a'nd Zeal were unacceptable because of similar alleged misconduct . We find that the respondent refused to reinstate Albert Bishop, Joseph Ronges, Robert Wing, and Michael Zeal because of their participation in the strike and their adherence to the Union, and not because of their alleged misconduct during the strike. The respondent thus dis- criminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. The respondent's refusal to reinstate the employees adjudged in contempt of the State Court's restraining order During the strike, the respondent applied for, and on July 1, 1940, obtained from the Court of Common Pleas for Cuyahoga County, Ohio, a temporary restraining order, apparently. directed against cer- 521247-43-vol. 48-57 884 DECISIONS OF NATZON'AL LABOR 'RELATIONS BOARD tain activities of the strikers, although the grounds of the application, and the provisions of the order are not disclosed in the record. On July 13, 1940,` the Court adjudged the following 11 of the re- spondent's employees in contempt of its order : John Biss, John Bosko, William Heeder,_ Cecil S. Dotson, Richard Gallagher, Jr., Richard Gallagher, Sr., Herbert Mantell, Scott Dotson, Ben Biss, John Mulqueen, and Harry Selavko. In its minutes, the Court stated. that these employees had committed acts in violation of its order, such as stoning automobiles and non-striking employees, picketing the homes of non-striking employees, threatening non-striking employees and' their families, and mass picketing. The penalties imposed by the Court varied from a maximum of 10 days in jail and $500 fine to a minimum, in the case of 2 of the contemnors, of payment of costs. None of the 11 contemnors, except Selavko, who was rehired on January 13, 1941, has been reemployed by the respondent. The re- spondent contends, and Superintendent Weigolt's testimony indicates,) that it refused to reinstate these employees because of their convic- tion of contempt and because of the acts which the Ohio Court' found that they had committed during the strike, and not because of their union membership or their participation in the strike. We find, therefore, that the respondent did not discriminatorily refuse to rein- state John Biss, John ^Bosko, William Heeder, Cecil S. Dotson, Richard Gallagher, Jr., Richard Gallagher, Sr., Herbert Mantell, Scott Dotson, Ben Biss, and John Mulqueen. B. Alleged interference, restraint, and coercion Paragraph.VII of the complaint, as supplemented by the bill of particulars submitted by counsel for the Board, alleges that the re- spondent, by certain statements and conduct of Foreman Maurice Tarr,. Foreman Bub, and Superintendent Weigolt, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Maurice Tarr has been for the past 13 years die-casting and mill- wright foreman at the Cleveland plant, and prior thereto he was an employee of the respondent at the Fayetteville plant in the same de- partment with Richard Gallagher. In 1935, Gallagher participated in a srtike at the respondent's ,Fayetteville plant and was not rein- stated. On the appeal of Gallagher and his wife, Tarr hired Gal- lagher at the 'Cleveland plant on December 8, 1936, after getting authority to do so from Superintendent Weigolt and General Man- ager Knapp. At the hearing herein, Gallagher first testified that, when he was employed, Tarr told him that he could work at the Cleveland plant but.could not belong to any union. He later testis PR,)EiCISION' CASTIN'G^S COMPANY, ENT. 885 fled that Tarr had said nothing to him about unions at the time he was employed, but that within a few days after he had gone to work, Tarr told him that he could not belong to any union and con- tinue to work at the Cleveland plant. In the fall of 1939, the Union started its efforts to organize the Cleveland plant. Beginning in January 1940, according to Gallagher, Tarr spoke to him about the Union "at least once a week," and in one conversation "around the first of the year," after asking Gallagher if he belonged to the Union and how many members it had, Tarr said that he believed that Smith Dotson and Johnny Biss were the only union members employed by the respondent and that they were "going to get throwed out on their ears." Although Gallagher testi- fied that he had conversations with Tarr "after that,, every day or two" and that "at different times . . . between the first of the year and the strike" Tarr said that he was "going to throw [Biss and Dotson] out," Gallagher was unable to give even approximate dates and his testimony does not indicate whether these statements by Tarr continued 'after March 6, 1940, the date of issuance of the complaint in Case No. C-1658. Tarr testified that Gallagher had been employed with full knowledge on his part and on the part of Knapp, the respondent's general manager, of Gallagher's prior union activities. He denied that he had warned Gallagher against belong- ing to any union, or that he had ever referred to Biss and Dotson as Gallagher testified. Gallagher further testified that "just before the strike," on a Satur- day morning during' working hours, he left his usual work station in the castings room, went into the die shop adjoining, and there en- gaged in a 15-minute argument with two die makers over the rela- tive merits of the Union and the P. E. A. He championed the cause of the Union, and the other two employees argued in behalf of the P. E. A. When he reported for work on the following morning', Tarr called him into his office. Gallagher's testimony as to what then occurred is as follows: Q. Will you tell us what was said by you and what was said by him at that time ? A. He wanted to know, he asked me what the argument was on Saturday morning. Well, I said I was just telling them ,fellows the truth and I said it kind of hurt them. He says, ``you want to work here?", II says, "Yes, I'd like to," so he says, "you go back to your machine," he says, "and keep your mouth shut from now on," he' says "or you'll be thrown out of here." Tarr was not questioned as' to this incident. Gallagher also testified that, on the night before the strike, while he was working in the castings room, Tarr said to' him that he 886 DECISIONS OF NATIONAL LABOR RE'LATIONS' BOARD understood that the Union intended to call a strike the next day, to which Gallagher replied that he had heard nothing about a strike., However, the next morning, when the strike occurred, Gallagher and several other employees visited Tarr's home. On direct•examination, Gallagher testified that Tarr said, "you fellows ain't goilna worry a bit. , Come right in tomorrow morning; the strike isn't going to stop you fellows from working at all." On cross-examination, Gallagher admitted that this statement was made by Tarr in answer to a ques- tion by one of the employees who indicated his concern about, the strike. The only ' other testimony • relating to • Tarr's ^ attitude ,,toward ,the Union was that of John Biss, who testified that he joined the Union in November 1939, that he started during the same month to wear his union button in the plant, and that, on the first day he wore it, Tarr looked at' it and said, "I never thought you would do a thing like that to me." Biss further testified that between that time and the start of the strike he "had quite a few riffs with foremen . . . it all related to the Union but I can't exactly remember now; it's been so long." The testimony hereinabove reviewed, so far as it relates to the period before March 6, 1940, was properly accepted by the Trial Examiner only for whatever value it might have as background. The Trial Examiner found that the testimony relating to the period sub- sequent to March 6, 1940, is either too ambiguous, too inconsequen- tial, or too indefinite to be given weight, and the Union filed no exception to this finding. We find, as did the Trial Examiner, that the evidence does not support the allegations of the complaint as to the anti-union activities of Foreman Tarr. Boris Dotchkoff testified that, between 2 and 4 weeks before the strike, his foreman chided him for joining the Union and said that it was no good for him. George Bub, the foreman to whom this testimony related, denied that he had made any such statement. Dotchkoff's testimony is uncorroborated, and there is no other evi- dence of anti-union activity by Bub. We find, as did the Trial Examiner, that Bub did not make the statement attributed -to- him by Dotchkoff. Dotchkoff also testified that, after he filed his application for rein- statement, he went to see Superintendent Weigolt, who said that he had no job for Dotchkoff and that he remembered Dotchkoff as a participant in a previous strike. Weigolt denied having made any such statement. The Trial Examiner, who saw and heard the wit ness, credited Weigolt's denial, and we agree. We find, as did the Trial Examiner, that the evidence does not sustain the allegations of interference, restraint, and coercion , in Paragraph VII of the complaint. -- - PRECISION CASTINGS COMPANY, INC. - 887 IV. THE,„ EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III A, above occurring. in connection with the operation of the respondent, de- scribed in Section I, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent, by the reinstatement rules and procedure adopted and followed by it after the strike, discrimi- nated against its striking employees. This discrimination took the form, in part, of reinstatement of some of the striking employees with new seniority. The names of the employees who were thus reinstated and who are still employed by the respondent are listed in Appendix A hereto. To remedy this discrimination, we shall order the respondent to restore the employees whose names appear in Appendix A to the- seniority status which they would now have if it were not for the respondent's discrimination. We have also found that the respondent discriminatorily refused to reinstate the striking employees whose names are listed in Appen- dix B hereto. We shall therefore order the respondent to offer to the employees named in Appendix B immediate and full reinstate- ment to their former or substantially equivalent positions, with seniority status equal to that which they would now have if it were not for the respondent's discrimination - against them, and without prejudice to their other rights and privileges. Reinstatement shall be effected in the following manner : all new employees hired by the respondent after July 15, 1940, shall, if necessary to provide em- ployment for those to be offered reinstatement, be dismissed. If,' thereafter, despite such reduction in force, there is not sufficient employment available for all the employees to be offered reinstate- ment, all available positions shall be distributed among such em- ployees according to their relative seniority as of June 25, 1940, ,without discrimination against any employee because of his union affiliation or activities or because of his participation in the strike. Those employees, if any, remaining after such distribution, for whom no employment is immediately available, shall be placed upon a pref- erential list and offered employment in their former or substantially 888 DECISIONS OF,NATIOTNAL LABOR, RELATIONS BOARD equivalent positions as such employment becomes available and be- fore other persons are hired for such work, in the order-of their relative seniority as of June, 25, 1940. In addition to discriminatorily refusing to reinstate • the striking employees whose names are listed in Appendix B hereto, the re- spondent, by adopting and following the reinstatement rules and procedure described in Section III A above;- discriminatorily de- layed the reinstatement of the striking employees whose names are listed in Appendix A hereto and who are still in the respondent's employ and of the striking employees whose names are listed in Appendix C hereto and who have left the respondent's employ since their reinstatement. To remedy the effects of the respondent's re- fusal to reinstate the employees whose names, appear in Appendix B and whom we have ordered reinstated and of the respondent's delay in reinstating the employees whose names appear in Appendix A ' and Appendix C, we shall order the respondent to make whole the employees listed in Appendices A, B, and C for any loss of pay they have suffered because of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages during the period from the date on which he would have been reinstated if the respondent had reinstated him in the order of his seniority to the date on which he was in fact reinstated or the date of the respond- ent's offer of reinstatement or of his placement on a preferential list, as the case may be, less his net earnings during such 'period .17 The respondent contends that Boris Dotclikoff wilfully incurred Any loss of earnings that he may have suffered since the strike. In support.of this contention, the respondent at the hearing offered to prove that Dotchkoff "has devoted his entire time to operating .. . a retail store..." In effect, therefore, the respondent offered to prove that Dotchkoff has been gainfully employed since the strike. Evi- dence of self-employment is not evidence of wilfully incurred losses. However, in computing the amount of back pay, if any, due to Dotch- koff, the reasonable value of the services performed by him in the operation of the retail store shall be regarded as his earnings during the period for which he is reimbursed. It is conceded that all the employees whose names are listed in Appendix B hereto and whom we are directing the respondent to reinstate have obtained substantially equivalent employment else- 17 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company'and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Worke,s Union, Local 2590 , 8 N. L. R. B. 440. Monies received for work performed upon Fed&ral , State, county, municipal or other work -relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R B. 311 U. S 7. PRECISION, CASTINGS COMPAiNY, 'INC. 889 where, - and--the respondent therefore contends that no reinstatement order as, to ,them is warranted . , For reasons previously expressed by us, we believe that effectuation of the policies of the Act ,requires the reinstatement of these , employees.18 Upon the basis of the above findings of fact and upon , the entire record in the case, the,Board makes the following: . CONCLUSIONS OF LAW 1. National Association of Die Casting Workers , Region No. 5, affiliated with C. I. '0., is a labor organization , within the meaning of, Section 2 (5) of the Act. 2. 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 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment or the terms and conditions of employment of the employees whose names are listed in Appendices A, B, and C hereto, and thereby dis- couraging membership in National Association of Die Casting Work- ers, Region No. 5, affiliated with the C. I. 0., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Precision Castings Company, Inc., Lakewood, Ohio, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : - (a) Discouraging membership in National Association of Die Cast- ing Workers, Region No. 5, affiliated with C. 1-0., or in any other labor organization of its employees, by discriminating in regard to the hire or tenure of employment, or the terms or conditions of employ- ment, of any of its employees; (b) In any other manner interfering with, restraining or coercing ,its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through is See Matter of Ford Motor Company and International Union, United Automobile Workers of-America, Local Union No. 249, 31 N L R B. 994, 1099-1100 Phelps-Dodge Corp. v N. L R. B. 313 U S. 177 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other- mutual,aid -'and- protection,-as guaranteed in-Section 7 of the Act. ' 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Restore the' employees listed in Appendix A hereto to the seniority status which they would now have if it were not for the respondent's discrimination against them; (b) Offer the employees whose names are listed in- Appendix B hereto immediate and full reinstatement to their former or substan- tially equivalent positions, with seniority status equal to that which they would now have if it were not for the respondent's discrimina- tion against them, and without prejudice to their other rights and privileges, in the manner set forth above in the section entitled "The remedy," and place those employees for whom employment is not im- mediately available upon a preferential list and thereafter offer them employment as it becomes available, in the manner set forth in said section ; (c) Make whole the employees whose names are listed in Appendices A, B; and C hereto for any loss of pay they have suffered because of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the, amount which he would normally have earned as wages during the, period from the date on which he would have been reinstated if thie respondent had reinstated him in the order of his seniority to the date on which he was in fact reinstated or the date of the respondent's offer of reinstatement or of his place- ment on a preferential list, as set forth above in the section entitled "The remedy," as the case may be, less his net earnings during such period ; (d) Post immediately in conspicuous place throughout the respond- ent's Cleveland plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that.it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of -this' Order; and (3) that the respondent's employees are free' to become or remain members of National Association of Die Casting Workers, Region No. 5, affiliated with C. I: 0., and that the respondent will not discriminate against any employee because of membership or activity 'in said -organization; (e) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps the ,respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint, insofar as it al- leges that the respondent discriminated against John .Biss,' John PRECISION CASTINGIS COMPANY, INC. 891 Bosko, William Heeder, Cecil S. Dotson, Richard Gallagher, Jr., Richard Gallagher, Sr., Herbert Mantell, Scott Dotson, Ben Biss, John Mulqueen, and Harry Selavko, be, and it hereby is, dismissed. MR. JOHN M. HOUSTON took no part in the consideration" of the above Decision and Order. APPENDIX A Luigi Di Peppino Otto Paukner Ralph Mantell Norman Foote Edwin Matson Rufus Benjamin Robbins, Anthony France Philip Latevola Joe V aj dik APPENDIX B Albert Bishop Ben Czekaj Boris Dotchkoff Frank Kermendy Edward Palo Joseph Ronges Robert Wing Michael Zeal APPENDIX C Alex Yavorsky Winslow Cobler William Klamorick Michael Enatenok Russell Stephan Edward Holler