The Gould Mersereau Co., Inc.

In the Matter of THE GOULD MERSEREAU COMPANY, INC. and JAMES A. WALSH In the Matter of THE GOULD MERSEREAU COMPANY, INC. and HENRY F. MAURER In the Matter of THE GOULD MERSEREAU COMPANY, INC. and THOMAS M. TREACY Cases Nos. 2-C-6119, 2-C-6206, and 2-C-6399, respectively.Decided January 14, 1948 111r. Richard J. Hickey, for the Board. Messrs. Jacob Fogelson and Jerome M. Stennber, of New York City, for the respondent. Messrs. James A. Walsh, Henry F. Maurer, and Thomas M. Treacy, the charging parties, in person. DECISION AND ORDER On April 3, 19471 Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled consolidated proceedings, finding that the respondent had engaged in and was engaging in cer- tain 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. The Trial Examiner also found that the respondent had not discriminated in regard to the hire and tenure of employment of Thomas M. Treacy within the mean- ing of Section 8 (3) of the Act, and recommended that the complaint be dismissed as to him.2 Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the -Those provisions of Sections 8 (1) and 8 (3) of the National Labor Relations Act, which the Tual Examiner found were violated, are reenacted in Sections 8 (a) (1) and 8 (a) (3) of the Act as amended by the Labor Management Relations Act 1947 1 No exceptions were filed to the Trial Examiner's findings and recommendation as to Treace 75 N. L. R. B, No 96. 784 THE GOULD MERSEREAU COMPANY, INC. 785 respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions and qualifications hereinafter set forth. 1. The Trial Examiner found that the respondent was opposed to. the self-organization of its employees and failed genuinely to accept and deal with the Union as the exclusive representative of its em- ployees tinder the Act. His finding in this regard is based on his find- ings that the respondent (a) attempted to obtain an agreement for recognition of the Union for its members only, although the Union was entitled to exclusive recognition; (b) during a bargaining conference, presented the Union, as a fait accommpli, with a lay-off list of em- ployees; (c) referred to one of the Union's most active proponents as an "instigator"; and (d) made it clear that when a contract was signed the Union was to withdraw certain unfair labor practice charges it had filed with the Board. The record discloses that, on a number of occasions during the bar- gaining conferences, the respondent's attorney informed the Union's. representative that recognition of the Union by the respondent was. "mandatory as a matter of law," that the respondent did accept mid deal with the Union as the exclusive representative of its employees, and that on December 28, 1945, the respondent and the Union executed a collective bargaining contract which contained an exclusive recog- nition clause. The record indicates further that the respondent sub- mitted its lay-off list to the Union in. ample time for discussion, and that the Union itself brought about the adjournment of the bargaining conference, thus preventing any possible discussion of the lay-off list. In addition, the record shows that the Union membership at a mem- bership meeting voted to sign the contract and to withdraw the un- fair labor practice charges. Upon the basis of the entire record, we are not convinced that the respondent attempted to obtain a members- only contract, or submitted its lay-off list to the Union as a fait accompli, or required the Union to withdraw its unfair labor practice charges as a prerequisite to the signing of the contract. Accordingly, we are unable to agree with the Trial Examiner that the record war- rants a finding that the respondent failed genuinely to accept and deal with the Union as the exclusive bargaining representative of its em- ployees and was opposed to the self-organization of its employees. 2. We do, however, agree with the Trial Examiner that the re- spondent discriminated with respect to the hire and tenure of em- ployment of Maurer and Walsh. The record shows, as the Trial Ex- aminer found, that Maurer received several merit raises during his period of employment. On January 21, 1946, when Maurer applied for reemployment, lie was instructed by Assistant Plant Superintend- 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent Callihan to appear with his working clothes the next day. Maurer reported ready for work the next day, as directed, only to be informed by Plant Superintendent Van Duyne that Van Duyne would like to put him to work, but that the "front office" was holding up the hiring. When Maurer inquired as to the reason, Van Duyne stated that he couldn't tell Maurer. The record also reveals, as the Trial Examiner found, that Walsh was advised by Assistant Plant Superintendent Callman at the time of his lay-off that he would be recalled when work was available. Subsequently, however, when the Union repre- sentative called Van Duyne concerning the prospects of employment for Walsh, Van Duyne explained, as he did respecting Maurer, that he had nothing against Walsh, but that the "front office" would not permit the hiring. Considering the fact that Maurer and Walsh had satisfactory work records; that the respondent, about this time, lured new employees within both Maurer's and Walsh's employment ex- perience; that the respondent failed to furnish any satisfactory ex- planation for Van Duyne's statements to Maurer and Walsh with respect to the refusal to rehire them; and that Maurer and Walsh were known by the respondent to be active proponents of the Union and to have participated in the strike as picket captains, we are con- vinced by the entire record, and find, that the respondent refused to rehire Maurer and Walsh because of their union membership and activities during the strike.3 We shall accorditigly adopt the Trial Examiner's recommendations that the respondent be ordered to cease and desist from its unfair labor practices, to offer Maurer and Walsh reinstatement, and to make them whole for any losses incurred as a result of the respondent's discrimination against them. The Trial Examiner also recommended that the respondent be ordered to cease and desist from in any other manner infringing the rights guaranteed in Section 7 of the Act. Although we have reversed the Trial Examiner's finding that the respondent failed genuinely to accept and deal with the Union as the exclusive bargaining representative and was opposed to the self- organization of its employees, we are of the opinion, for the remain- ing reasons set forth in the Intermediate Report, that such an order is necessary in order to effectuate the policies of the Act. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor S We find no merit in the respondent 's contention that the rehiring of other union mem- bers who participated in the strikes, refutes a finding of discrimination against Maurer and Walsh while other strikers engaged in picketing, it does not appear that anyone other than Mauler and Walsh acted as picket captains Cf Matter of Toledo Desk & Fix- ture Company, 65 N L It. B 10S6, 1107; Matter of Steuart Warner Corporation, 55 N L. R B 533, 610. THE GOULD MERSEREAU COMPANY, INC. 787 Relations Board hereby orders that the respondent, The Gould Mer- sereau' Company, Inc., Long Island, New York, and 'its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, UAW, CIO, Amalgamated Local 365, or in any other labor organi- zation of its employees by refusing to reemploy any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted, activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Henry F. Maurer and James A. Walsh immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority and other rights and privileges ; (b) Make whole Henry F. Maurer and James A. Walsh for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date of the respondent's discrimination against him to the date of respondent's offer of reinstatement, less his net earnings during said period; (c) Post immediately in conspicuous places in the respondent's plant at Long Island City, New York, copies of the notice attached to the Intermediate Report herein, marked "Appendix A." " Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respondent's representa- tive, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the re- 4 This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words, "RECOMMENDATIONS OF A TRIAL EXAMINER" and sub- stituting in lieu thereof the words, "A DECISION AND ORDER." In the event this order is enforced by Decree of a Circuit Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES CIR- CUIT COURT OF APPEALS ENFORCING " - 766972-48-vol. 75-51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to insure that said notices are not altered, defaced, or cov- ered by any other material; (d) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in Case No. 2- C-6399 be, and it hereby is, dismissed. MEMBER REYNOLDS took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Richard J Hickey, for the Board. Messrs. Jacob Fogelson and Jerome M. Stember, of New York City, for the respondent. ' Messrs. James A. Walsh, Henry F. Maurer, and Thomas M. Treaty, the charging parties, in person. STATEMENT OF THE CASE Upon charges filed by James A Walsh, Henry F. Maurer, and Thomas M. Treacy, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New Yolk City), issued its complaint' dated October 8, 1946, against The Gould Mersereau Company, Inc, Long Island City, New York, 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, 49 Stat. 449, herein called the Act Copies of the complaint together with notice of hearing thereon were duly served upon the respondent and each of the charging parties. With respect to the unfair labor practices the complaint 2 alleges, in substance, that the respondent unlawfully refused on named dates to reinstate Walsh, Maurer, and Treacy for the reason that they assisted or had become members of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, CIO, Amalgamated Local 365, herein referred to as the Union, or participated in or refused to work during a certain strike. The complaint does not allege any independent violations of Section 8 (1) of the Act. In its answer, dated October 15, 1946, the respondent admits certain allegations of the complaint as to the nature and extent of its business, but denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held at New York City on October 21, 22, and 24, 1946, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel. The charging parties appeared in person Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties At the conclusion of the taking of evidence, counsel for the Board moved to conforin the pleadings to the proof ' The three cases were consolidated by Board order. 2 At the opening of the hearing . counsel for the Board moved to amend the complaint to correct a typographical error. The respondent stated that it had no objection , and the motion was granted. A THE GOULD MERSEREAU COMPANY, INC. 789 as to formal matters. The motion was granted without objection. Counsel for the Board elected to argue on behalf of his case on the record, and counsel for the respondent elected to file a brief. Upon the entire record of the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE 13USINESS OF THE RESPONDENT The respondent, a New York corporation, having its principal office in New York City and its plant in Long Island City, New York, is engaged in the manu- facture, sale, and distribution of metal parts for ordnance materials, screw machine products, wire forming products, metal stampings, and related products. During the year ending September 30, 1946, the respondent, in the course and conduct of its business operations, caused to be purchased, transferred, and delivered to its plant brass, steel, and other materials of a value in excess of $100,000, approximately 70 percent of which was shipped to it from points out- side the State of New York. During the same period, the respondent manufac- tured products of a value in excess of $300,000, approximately 70 percent of which was shipped to points outside the State of New York. The respondent did not contest the jurisdiction of the Board, and the under- signed finds that the respondent is engaged in commerce within the meaning of the Act. IT THE ORGANIZATION INVOLVED International Union , United Automobile , Aircraft and Agricultural Implement Workers of America , UAW, CIO, Amalgamated Local 365 , is a labor organization, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events After certification in May 1945, pursuant to a Board-conducted election among the production and maintenance employees,3 the Union and the respondent com- menced bargaining negotiations. Many meetings were held, and a contract was finally executed on December 28. In the course of these negotiations each of the following, among, others, participated although each was not necessarily present at every bargaining conference On behalf of the,respondent there was Jacob Fogelson, its attorney, D. M. Sarkisian, president, Arthur Sarkisian, vice president and secretary, Allan T. Tekerian, plant manager The Union was represented by Carl Reidis, trustee, Daniel House, recording secretary, and an employee negotiation committee consisting of three employees, including Henry F. Maurer. According to the undisputed and credible testimony of Reidis, at the July 24 conference D. M. Sarkisian stated, in substance, that everything was going along fine at the plant until some "instigators" came along. Sarkisian then turned to Maurer and asked where he had worked before he came to the respondent. Maurer answered that he came from the Brewster corporation, hind Sarkisian's retort was that that explained it. Also according to Reidis' un- disputed and credible testimony, at the August 15 conference, while a conciliator of the United States Conciliation Service was present at the request of the Union, Fogelson, although stating, in effect, that the Union was entitled to 61 N. L. It. B. 601. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive recognition, sought to obtain an agreement for recognition of the Union's members only. On August 17, when there were about 175 workers in the respondent's employ, there was a mass lay-off at the plant. Included among the employees thus af- fected was James A. Walsh. Three days later on August 20, the employees went out on a strike contending that seniority was not followed in the lay-off and that the Union was entitled to exclusive recognition. , During the strike Walsh and Maurer were picket captains, and Thomas M Treacy, a working foreman, participated in the picketing. On August 23, the strike ended after some tenta- tive arrangement was reached on seniority and an agreement, was concluded under which the respondent undertook to post a notice stating that it recognized the Union as the exclusive representative of the employees in the unit.' The next day additional employees were laid off. On September 12, while the parties were again engaged in contract negotiations concerning particularly the wage issue, the respondent's representative handed the Union a list of names of em- ployees and stated that they were to be laid off that afternoon. The lay-offs were not discussed at any time during the conference. After the respondent made a wage offer, a recess was called and the Union's representatives conferred and then decided to call a strike that afternoon. The Union informed the respondent that there would be no further meeting that afternoon, and before closing time the employees commenced the strike. Sometime that afternoon Treacy learned that he was being laid off too.' At this time the respondent employed about 70 workers. On September 18, the Union filed charges' alleging the discriminatory lay-off of 26 employees including Treacy but not Maurer and Walsh. The strike con- tinued until October 4. During the progress of the strike Walsh and Maurer again acted as picket captains, and Treacy again performed picket duty. Some- time during this strike Supervisory Employees Elizabeth Snowdon, Frances Samsel, and several other employees, while being escorted by Tekerian on their way home from work at the plant, were met in the subway station by Maurer, Walsh, and Reidis. After riding several stations, they all left the subway train and entered upon the street. Tekerian left Snowdon and Samsel tempora- rily and got a cab for the other employees. When he was returning, Maurer, Walsh, and Reidis were talking to Snowdon and Samsel urging them not to work during the strike. As Tekerian came closer Reidis told him that he was talking to the girls and that it did not concern Tekerian. Tekerian replied that he wanted to be present and hear what was going on. The men got closer together in an effort to give their conversation some privacy. Tekerian persisted and pried his way in between Reidis and Walsh. They pushed him back as Reidis asked him not to interfere with them. Reidis told Tekerian, also, that he was looking for trouble and that this matter did not concern him. At about this time Snowdon and Samsel left the group and the men went on their way also.' d About one-half of the workers reemployed at the close of this strike had engaged in picketing. 5 More details of this incident will be given in the discussion of Treacy's case. 6 Case No 2-C-5977. 7 There is a dispute whether Walsh struck Tekerian during this incident. Samsel, who testified that she was upset both at the time of the incident and at the time of the hearing, gave testimony that she saw Walsh strike Tekerian on the chin and on the stomach Snow- don testified that she did not see anyone hit Tekerian Tekerian, who taught wrestling and jujitsu in the Army during the last war, and who admitted that he made no secret of his Army career and "presumed" that this fact was a matter of plant gossip, testified that he was struck on the chin by Walsh, but that he did not remember being struck on the stomach. Walsh denied striking Tekerian, and his testimony is supported by Reidis. Maurer was not questioned concerning this incident, and there is no indication that he A THE GOULD MERSEREAU COMPANY, IN C. 791 At the close of the strike the respondent with the consultation of the Union reinstated some of the employees." By October 16, Tekerian with Plant Superin- tendent Van Duyne's aid completed a compilation of the remaining laid-off em- ployees from an employee list by making certain designations on it showing, among other things, a decision to send certain ones a letter advising them that in the event they were not employed elsewhere to inform the respondent if they wished to remain on the employment list This letter was mailed on October 22 a Tekerian maintained this list by showing with other designations the receiving of a reply. It appears from this list that the respondent sent Walsh a letter, and that it received an affirmative reply. Maurer had apparently been sent a letter, but no reply was received from him. Tracy was not sent a letter and his name was scratched out, and Tekerian was not able to state how this happened. On December 28, the parties signed a contract," and the Union later that day withdrew the charges it had filed with the Board House's uncontradicted and credible testimony shows that Fogelson and D. M. Sarkisian made it clear during the negotiations that the Union was to withdraw the charges when the contract was signed. B. The refusals to reinstate The complaint alleges that reinstatement was discriminatorily refused as follows : Name Ceased work Applied for reinstatement Refused reinstatement James A. Walsh-------------------------------------------- Aug. 17,1945 Oct. 25,1945 Dec. 1945. Henry F Maurer ---------------------------- Sept. 12,1945 Jan. 21,1946 Jan. 21,1946. Thomas A Treacy---------------------------------------- Sept. 12, 1945 Sept. 19, 1945 Dec.1945. "More specifically," the respondent's brief states, "the Board alleged that the Company refused to rehire three of its former employees, namely, James Walsh, Thomas Treacy, who had been laid off, and Henry F Maurer, who ceased work because of a strike." The respondent's answer concedes only the refusal and denies the date of these refusals and that the refusals were brought about by considerations of union or concerted activities. The crucial inquiry here is whether counsel for the Board has satisfactorily shown that the respondent's conduct was prompted by anti-union considerations. exerted any force against Tekerian From the undersigned's observation and appraisal of the witnesses and particularly in view of Tekerian's known Army experience in wrestling and jujitsu, Tekerian's and Samsel's testimony in this regard is rejected as being unreliable. 8 About one-half of those appearing on the respondent's December employment list en- gaged in picket duty during the September 12-October 4 strike. The body of the letter appearing on the respondent's letterhead is as follows : Because of the war this Company employed a considerable number of people. We are no longer working on Government Contracts. In our civilian line we estimate that we will need no more than about fifty employees for the future. This letter is written to you to find out whether you wish to remain on our em- ployee list in the event it becomes necessary for us to hire additional people. If you are already employed elsewhere it will be unnecessary for you to answer this letter. However, if you are not presently employed and wish to continue on our employee list please let us know before Friday, October 26th, 1945 10 The respondent points out in its brief that pursuant to this contract it gave the Union a seniority list on or about January 8, 1946, which did not contain the names of Walsh, Maurer, or Treacy and that the Union did not protest. This list, however, sets forth only the names of the persons then on the pay roll and actually working for the respondent. Since these men were not working for the respondent at the time, the omission of their names lacks significance as a fact. 7.92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Treacy, Maurer, and Walsh worked in the receiving department. Walsh and Maurer were material handlers or "bull gang" laborers and Treacy supervised them, among others, in the department Treacy was hired in November 1944. He received merit wage increases and at the time of the advent of the Union, he was a working foreman in the receiving department. During his career he made valuable changes in the respondent's methods of operation and had been complimented by Tekerian for his fine work Both Arthur Sarkisian and Tekerian assured Treacy that he had a good future with the respondent. Treacy participated in the August 20-23 strike as a picket. On September 12, Treacy found out that he was being laid off that day. He went to D. M. Sarkisian's office and inquired of him as to why he was being laid off. Sarkisian explained that the ending of the war brought about the loss of business, and that conse- quently he was reducing the working force Sarkisian assured Treacy, however, that he would be called back to work if business warranted it. Treacy replied, in substance, that once he left a job he never came back." He thereupon left the plant. During the September 12-October 4 strike Treacy again performed picket duty. The respondent did not send Treacy a copy of the October 22 letter and as already noted, his name had been scratched from the list. It does not appear that he applied for reemployment with the respondent', and the job he had held was filled on December 13, 1945 Walsh was hired in May and temporarily laid off on August 17, 1945 During his employment, be received a wage increase ; and at the time of his lay-off Callman, who was then assistant to the plant superintendent, told Walsh that he was sorry about the lay-off and that if there was any work in the future, he would take Walsh back. Thereafter, on August 20, the first strike began and Walsh was an active participant. Again during the September 12-October 4 strike Walsh participated in the strike, even to the extent that he personally attempted to persuade non-striking employees from continuing to work during the dispute. Walsh, however, received respondent's inquiry of October 22 and although he replied in the affirmative, was not recalled to work. Sometime early in January 1946, House called Plant Superintendent Van Duyne, who was in charge of personnel matters at the factory,' on the telephone and informed hint that Walsh was in the office and that he was still out of work. Van Duyne explained in answer to House's inquiry as to whether he could send Walsh over for a job, that he had nothing against Walsh but that the "front office" would not permit the hiring. It appears from the respondent's records that at about this time and shortly afterward it filled jobs within Walsh's employment experience. Maurer was hired in December 1944 and ceased work during the September 12- October 4 strike and was not recalled to work. During his employment he received several merit raises . Maurer assisted the Union in its organizational drive and signed up members. He acted as the Union's observer for the Board election and attended bargaining conferences with the respondent. Also, as already noted, he, like Walsh, was an active participant in the strike. The respondent's records show that Maurer was sent a copy of the October 22 letter. He, however, testified that he did not receive it. At about this time Maurer n Treacy 's version of this incident on direct examination did not include this remai k , he testified on cross-examination that he didn 't remember making such a remark , and then on direct examination the next day as part of the Board 's rebuttal he denied making the remark. He also testified that he protested at the time that he was being laid off because of the Union , yet admitted that Sarkisian stated that he would recall him for employment as business improved . The above finding is based upon Sarkisian's testimony corroborated by Fogelson, who was present during the entire conversation , and Callman , who was pres- ent during part of the conversation 17 Van Duyne , who was no longer an employee of the respondent at the time of the hear- ing, was not called as a witness and it does not appear that he was unavailable. THE GOULD MERSEREAU COMPANY, INC. 793 found work elsewhere. In January 1946, about a week or two after the Walsh call, House called Van Duyne on Maurer's behalf also. Van Duyne told House that he still had some jobs open and that he had no objections to hiring Maurer and requested House to ask Maurer to come to the plant. Maurer appeared in the plant on the same day but Van Duyne was not present at that time and he was interviewed by Callinan'a Callman gave him an application form to complete and instructed him to appear with his working clothes the next day. Meanwhile Van Duyne called House back and ' told him that Maurer had been hired and was to come to work the next day, but that he wanted House to do him a favor by holding Maurer off, explaining that he was having difficulty with the "front office" in getting the hiring approved, but that he thought he could get it straightened out shortly. House assured Van Duyne that he would try to help. He was not, however, able to reach Maurer. When Maurer arrived for work the next day, he turned in his application dated January 21, 1946, and saw Van Duyne. Van Duyne explained that he would like to put him to work but the "front office" was holding up the hiring. Maurer inquired as to the reason, and then Van Duyne explained that he could not tell him. The respond- ent's records show that the respondent filled jobs within Maurer's work experi- ence within the next few days. Conclusions At this point an inquiry and appraisal of the respondent's other conduct evidentiary of its attitude toward the self-organization of its employees should be made. The respondent urges that it lacked anti-union bias, pointing par- ticularly to the proportion of employees who had picketed and had been returned to work after each of the strikes. Although this is some indication of the respondent's views, it should be noted that the record is silent on the salient matters which could give this consideration greater weight. For example, there is no clear showing of the degree of effectiveness of each strike as it affected the respondent's operations, the respondent's needs for personnel in the classifi- cation with the experience of the strikers, and its ability to obtain replacements elsewhere at the time The respondent also points out that it did enter into an agreement with the Union and to the contents of the document. Concerning the consummation of an agreement, counsel for the Board shows that about 6 months had elapsed before the parties were able to reach this agreement. No inference adverse to the respondent is, however, being drawn for here too there is a failure to show how the delay was brought about. Also, the fact of reaching an agreement per se, does not aid very much in forming the basis for a conclusion. Concerning the provisions of the contract, upon which he prided himself, D. M. Sarkisian testified, "I got it up and they approved it. I said, `Until you do that there will be no contract.' " 14 House testified that the Union having 13 When Caliman appeared as a witness he had displaced Van Duyne as plant superin- tendent 14 Significantly , the preamble to the contract which follows a lengthy introductory state- ment by Sarkisian declares , tinter alia: WHERFAS, the problems of labor and management being so, Dickran M Sarkisian has conceived a plan whereby continued production can best be secured by giving to em- ployees security with incentive And in order to provide security, it is his considered opinion that provisions for Hospitalization, Medical and Group Life Insurance consti- tute the best method of providing security. And it is his considered opinion that provisions for a bonus to be paid per month based on the gross business of the em- ployer and a bonus payable at Christmas in each year based upon weekly attendance constitute the best method of providing incentive . And the implementation of the said plan having been considered by Dickran M. Sarkisian , and Absent such information as the underlying circumstances and the operations of the re- spondent 's business , no particularly helpful determination can be made of the relative 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lost the strike accepted the contract as the best it could get although it did not solve all the issues between the parties. On the other hand, the record shows the respondent attempted to obtain an agreement under which it would recognize the Union for its members only although under the Board's certification the Union was entitled to exclusive recognition for all the employees in the unit, and that the respondent abandoned this attempt only after a strike directed toward that end. Also the respondent during a bargaining conference pre- sented the Union with a list of employees it was going to lay off that day as a fait accompli. In addition, D. M. Sarkisian at a bargaining conference, in effect, referred to one of the Union's most active proponents as an "instigator," and the respondent through Fogelson and Sarkisian made it clear to the Union that it was to withdraw the charges it had filed with the Board when an agree- anent was executed. Upon this record, the balance establishes and the under- signed finds that the respondent failed genuinely to accept and deal with the Union as the exclusive representative under the Act and that it opposed the self- organization of its employees. The next question is whether under these circumstances counsel for the Board has sufficiently established that the respondent's conduct toward Walsh, Maurer, and Treacy has been affected in a substantial manner by its opposition to the self-organization of its employees. In its brief the respondent explains that Maurer had shown a "lack of in- terest" in employment with the respondent and that it therefore refused to rehire him. More specifically, it points out that he was sent a copy of the let- ter of October 22, it was, his "duty" to reply, and no reply was received from hun by the respondent ; and that he applied for employment with the respondent "approximately three and one-half months after the termination of the strike against the Company, [and] he indicated on his application that he had been employed in the interim." When this "lack of interest" explanation is taken together with the practicalities of hiring to fill a vacancy with an applicant of proved worth to the employer, it loses the force claimed for it. Moreover, this explanation overlooks the significant rebuttal disclosed in the incidents that occurred at the time of the refusal to rehire which lies in Van Duyne's admission to House that he had no objection to hiring Maurer, and in Callman's statement to Maurer at the interview that Maurer come in the next day ready for work. The crucial explanation for the respondent's refusal to hire Maurer is rooted elsewhere. Significantly, the respondent opposed the self-organization of its employees and Maurer was one of the most active and prominent Union proponents. Sarkisian singled him out at one of the bargaining conferences as an "instigator." In addition, Van Duyne's statement to Maurer that he could not tell him why he was not being hired remains unexplained Under these cir- cumstances, the undersigned is convinced and finds that a substantial factor in the respondent's refusal to rehire Maurer lies in its opposition to the self- organization of its employees generally and to Maurer's union activity partic- ularly. Accordingly, the undersigned finds that the respondent discriminated in regard to the hire and tenure of employment of Henry F. Maurer for the reason that he was a member of or assisted the Union or engaged in concerted activity, thereby discouraging membership in a labor organization, and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. benefits to the employees the above-named provisions establish . It is apparent, however, from the quoted language that the contract would not normally enhance the prestige of the Union, since the benefits appear to be the largesse of management. The distinction be- tween the Union and the employees is one which Sarkisian himself makes clear in the in- troductory statement in which he takes complete credit for these benefits. THE GOULD MERSEREAU COMPANY, INC. 795 In its brief, the respondent points out, "As far as the complainant, James Walsh, is concerned, refusal to hire this man was due to the fact that he physically struck and manhandled an important member of the employer's man- agement force" As appears from the findings concerning the incident between Resdis, Walsh, and Tekerian, this contention is at best an exaggeration. Walsh, a satisfactory employee, was assured by Callman at the time of his lay-off that he would be taken back when work became available. It was after this lay-off that Walsh's union activity became prominent and the incident with Tekerian occurred 1b When House inquired of Van Duyne on Walsh's behalf early in January, about a week or two prior to his inquiry for Maurer, against whom the respondent has discriminated, Van Duyne's response was the same as he later gave as to Maurer, namely that he approved of the hiring but the "front office" did not. Briefly, the respondent opposed the self-organization of its employees, Walsh was prominent in his union activities, the respondent exaggerated the push- ing incident, and similar to the Maurer case, there is no satisfactory explana- tion for Van Duyne's admission at a time when the respondent was filling va- cancies that he would, but that the "front office" would not, approve Walsh's rehiring. The undersigned is convinced and finds that under the circum- stances, Walsh's union activity was a substantial factor in the determination not to rehire him. The undersigned, therefore, finds that the respondent dis- criminated in regard to the hire and tenure of employment of James A Walsh for the reason that he was a member of or assisted the Union or engaged in concerted activity, thereby discouraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The substance of the respondent's position concerning Treacy is that he had quit on September 12, 1945, immediately after he learned of his lay-off. As has been shown, the record supports this position. The inquiry that remains is whether the respondent on December 13, 1945, placed another employee in the job Treacy had held and failed to recall him because of his participation in the concerted activities. In view of the fact that Treacy told D. M. Sarkisian when he left that once he left a job he never came back, the undersigned is not con- vinced that counsel for the Board has sustained his burden of proof in establishing that a substantial factor in the respondent's failure to recall Treacy was its opposition to the self-organization of its employees. The undersigned will there- fore recommend that the complaint be dismissed as to Treacy. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and have led to a labor dispute burdening and obstructing commerce and the free flow of commerce. 11 Counsel for the Board , in substance, urges that because the respondent sent Walsh the letter of October 22 after this incident with Tekerian, it thereby condoned Walsh's action. With this the undersigned does not concur This letter is not worthy of the stature counsel for the Board seeks to bestow upon it. The letter is rather of a perfunctory nature and does not contain an offer of employment , but indicated vague prospects for future employ- ment, and merely invited the laid-off employees to state their desire to be maintained on an employment list only in the event they were not employed at the time , more than 2 weeks after the termination of the strike. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom 'and take certain affirmative action designed to effectuate the policies of the Act. The undersigned having found that the respondent has discriminated in regard to the hire and tenure of employment of Henry F. Maurer and James A. Walsh, he will recommend that the respondent offer each immediate and full reinstate- ment to his former or substantially equivalent position w without prejudice to his seniority or other rights and privileges , and make each whole for any loss of pay he may have suffered by reason of such discrimination by payment to him of a sum of money equal to that which each would have normally earned as wages from the date of the discrimination against him 14 to the date of the offer of reinstatement , less his net earnings ,18 if any, during said period. Because of the respondent's conduct in failing genuinely to accept and deal with the Union as the statutory representative, in opposing the self-organization of its employees , and its underlying purpose and tendency , the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the respondent's conduct in the past 19 This is especially true because the discharge of employees for en- gaging in concerted activities, striking as it does at their means of livelihood, "goes to the very heart of the Act." 2' The preventive purpose of the Act will be thwarted unless the undersigned's recommendations are coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus ef- fectuate the policies of the Act, the undersigned will recommend that the respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. ' Having also found that the respondent has not discriminated in regard to the hire and tenure of employment of Thomas M Treacy (Case No. 2-C-6399), the undersigned will recommend that the complaint be dismissed as to him Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS of LAw 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, UAW, CIO, Amalgamated Local 365, is a labor or- ganization , within the meaning of Section 2 (5) of the Act. 16 In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wher- ever possible, but if such position is no longer in existence , then to a substantially equiva- lent position ." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch, 65 N L. R B 827 17 The date of the refusal to reemploy Maurer is found as having occurred on January 22, 1946 This is based on the fact that his application form shows , "Today's date-1/21/46," and that he filled it in on the day before Van Duyne told him that the respondent would not rehire him As to Walsh the refusal is found on January 14, 1946 This date is selected in the following manner: House called Van Duyne on Walsh 's behalf about a week or two prior to his call for Maurer , which was made on January 21. The shorter period is used because counsel for the Board failed to establish the date with greater specificity. 18 See Matter of Crossett Lumber Co ., 8 N L R B . 440, 497-498. 19 N. L. R . B v. Express Publishing Co , 312 U. S 426, 61 S . Ct. 693 26N L. R. B v. Entwistle Manufacturing Company, 120 F. (2d) 532 , 536 (C . C. A 4), enf'g 23 N L . R. B. 1058. THE GOULD MERSEREAU COMPANY, INC. 797 2. By discriminating in regard to the hire and tenure of employment' of Henry F. Maurer and James A. Walsh, 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 (3) of the Act. 3 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section (2) 6 and (7) of the Act. 5. The respondent has not discriminated in regard to the hire and tenure of employment of Thomas A. Treacy (Case No. 2-C-6399). RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the respondent, The Gould Mersereau Company, Inc., Long Island City, New York, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, CIO, Amalga- mated Local 365, or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employ- ment; and (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer Henry F. Maurer and James A. Walsh immediate and full rein- statement to their former or a substantially equivalent position without prejudice to their seniority and other rights and privileges in the manner set forth in "The remedy"; - (b) Make whole in the manner set forth in "The remedy," Henry F Maurer and James A. Walsh for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of the respondent's offer of rein- statement, less his net earnings during said period ; (c) Post immediately in conspicuous places in respondent's plant at Long Island City, New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; and 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith It-is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Im- mediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. MAx M. GOLDMAN, Trial Examiner. Dated April 3, 1947. 0