E. A. Laboratories, Inc.

III the Matter of E. A. LABORATORIES, INC. and FOREMAN'S ASSOCIATION OF AMERICA, CHAPTER No. 104 Case No. 2-C-6259.-Decided November 23, 1949 DECISION AND ORDER On September 7, 1948, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had unlawfully discriminated against six supervisory employees named in the complaint, in violation of Section 8 (1) and (3) of the Act and recommending that the Respondent offer them re- instatement with back pay, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations.' The Re- spondent thereafter filed exceptions to the Intermediate Report and a supporting brief. The Respondent asserted, inter alia, that the Trial Examiner erro- neously rejected certain offers of proof by it concerning the purpose of the foremen's strike. To avoid any possible prejudice to the Respond- ent, the Board, on March 25, 1949, remanded the case to the Trial Examiner to receive evidence from all parties as to the purpose of the foremen's strike and to make findings with respect thereto. A supplemental hearing was held on April 12, 1949, and on May 25, 1949, Trial Examiner Ruckel issued his Supplemental Intermediate Report, a copy of which is attached hereto. The Trial Examiner, after finding that the "purpose of the foremen's strike was to support the strike of the production workers," reiterated his Conclusions of Law and Recommendations contained in his original Intermediate Report. Thereafter, the Respondent filed exceptions to the Supple- mental' Intermediate Report with a supporting brief. 1 The complaint also included a number of other foremen who had been reinstated after the events under consideration and who , the Trial Examiner found , were later either dis- charged for cause or who voluntarily resigned . As to these foremen , the Trial Examiner recommended dismissal of the complaint. Since no exceptions were filed , the complaint a, to them will not be further considered. 87 NLRB No. 3S. 233 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner at both hearings, and, except as noted above, finds that no prejudicial error was committed. All other rulings are hereby affirmed. The Board has considered the Original and Supplemental Intermediate Reports, the exceptions and briefs of the parties and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except insofar as they are inconsistent with the Decision and Order herein. 1. The Trial Examiner found that the discharge of the six foremen named in the complaint was in violation of the Act. Solely for the reasons appearing below, we agree. It is conceded that the complainants, officers of the foremen's union, were discharged because of their leadership in the foremen's strike. The Respondent seeks to justify its action on the ground that the foremen were not engaged in a strike protected by the Act. The legal defense is based on the allegation that the purpose of the foremen's strike was to support the strike of the production workers, as found by the Trial Examiner in his Supplemental Intermediate Report. The facts bearing on the factual issue raised by the Respondent's defense, are as follows : On Friday morning, September 22, 1944, the Respondent's produc- tion workers 2 went on strike and immediately formed picket lines around the plant. During the first week of the strike, the foremen reported at the plant, crossed the rank and file picket lines and con- tinued to work, which for the most part consisted of cleaning the floors and benches, taking inventory and maintaining the machines.3 At the close of the week, on Friday evening, September 29, the Re- spondent's president, Aufiero, assembled the foremen and stated that thereafter they would have to do production work and that if they did not want to do such work, they need not report for Work at all. The foremen replied that they would have to think the matter over. During that week-end, the foremen's union, to which the complain- ants and other supervisors belonged, held one or more meetings, to consider whether the foremen should do production work during the pendency of the strike. The UAW strike leader, Newman, obtained permission to address the foremen's meeting and urged the foremen not to do production work. Whereupon Newman was told by Car- fero, president of the foremen's union, "that we (the foremen) were 2 The production workers were represented by the United Automobile Workers, Local 844, herein called the UAW. 2 Respondent's vice president testified that during the week following the strike, the foremen, as a group, had not been asked specifically to do production work. The evidence is also uncontradicted . that when during that week , one of the foremen refused to finish some production work left undone by the' strikers , he was discharged. E. A. LABORATORIES, INC. 235 in an independent association and we would do what we saw fit, but we had no part of their (UAW) doings." Sometime thereafter the foremen passed a resolution not to do production work. On Monday, October 2, a committee of the foremen's -union advised Aufiero of this decision, whereupon Aufiero discharged the foremen. The foremen thereafter picketed along with the' production workers, but carried their own signs and kept to themselves in a separate group. On' October 6, when the foremen came for their pay, Aufiero again told them they were all suspended. On November 2, when the fore- men were gathered in a group in front of the plant, Aufiero called them in, informed them that the following week the plant would resume operations and that all suspended foremen except the com- plainants, the officers of the foremen's union, would be reinstated. On the basis of the entire record, we are unable to accept the Trial Examiner's finding and the Respondent's contention that the foremen struck for the purpose of supporting the production workers. The foremen were. members of an independent labor organization which existed to serve their own mutual interests. The foremen crossed the UAW picket lines and continued to work until the Respondent sought to change their own working conditions by insisting that they do pro- duction work. Picketing activity by the foremen did not occur until after the Respondent had penalized them for their concerted refusal to do production work. We are satisfied that the Respondent's action gave rise to an independent labor dispute with the foremen involving their own conditions of employment,' and that the foremen's con- certed activity was primarily in furtherance of their own mutual aid and protection and not that of the production workers.5 We accordingly find that under the conditions here present the foremen's strike constituted protected concerted activity 6 and that the Respondent's discharge of the six complainants for their partici- pation and leadership in the strike was a violation of the Act. 2. As supervisory employees are no longer protected by the Act, we shall, for reasons set forth in the Republic Steel case,-, omit our usual cease and desist order and require the Respondent only to reinstate the complainants with back pay. The Respondent contends that no back pay should be awarded for the period antedating the filing of the charges in April 1946, some 17 months after the alleged unfair la- bor practices in November 1944. We find merit in this contention, as . ' This finding is consistent with the testimony of certain strikers that they refused to do production work because they did not want to be strikebreakers. G In view of this finding, we deem it unnecessary to pass upon the question whether the foremen 's activity would have been unprotected if the purpose of their strike had been to support the rank-and-file strike. Cf. Carnegie-Illinois Steel Company, 84 NLRB 851. ' Republic Steel Corporation, 77 NLRB 1107. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there appears to be no explanation for the unreasonable delay in filing charges. We shall therefore award back pay only from April' 1946 to the date of the offer of reinstatement.8 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 Relations Board hereby orders that the Respondent, E. A. Labora- tories, Inc., Brooklyn, New York, and its officers, agents, successors, and assigns, shall take the following affirmative action : (a) Offer Edward Carfero, William Deleo, Andrew Carvelli, Jo- sephine Carbonaro, Salvatore Ingrisano, and Angelo Salerno, imme- diate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Edward Carfero, William Deleo, Andrew Car- velli, Josephine Carbonaro, Salvatore Ingrisano, and Angelo Salerno, for any loss of pay they may have suffered because of the Respond- ent's discrimination against them, by payment to each of them of a sum of money equal to the amount he or she normally would have earned as wages during the period from April 9, 1946, to the date of the Respondent's offer of reinstatement, Jess his or her net earnings during said period ; (c) 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 therewith. AND IT IS FURTHER ORDERED that In all other. respects the complaint herein be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Sanfford D. Ten, for the General Counsel. Messrs. Olvany, Eisner, and Donnelly , by Mr. Merwin Lewis, of New York, New York, for the respondent. STATEMENT OF THE CASE Upon an amended charge filed May 28, 1946, by Foreman's Association of America, Chapter No. 104, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (New York, New York), issued a complaint dated June 7, 1946, against E. A. Laboratories, Inc., 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), (3), and (5), and Section 2 (6) and (7) of the s Phoenix; Mutual Life Insurance Co., 73 NLRB 1463; Red Arroio Freight Linea, Inc., 77 NLRB 859. E. A. LABORATORIES, INC. 237 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompaniedby notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing,' alleged in substance that the respondent (1) from about June 1, 1944 to the date of the complaint, questioned its employees concerning their union affiliations, threatened them with discharge if they joined the Union, and kept their meeting place under surveillance; and (2) on various dates beginning on September 29, 1944, discharged 10 named employees, and thereafter refused to reinstate any of them, because of their union membership and activity. On July 29, 1946, the respondent filed a request for a bill of particulars, which was granted in part. On July 2, 1948, the respondent filed an answer admitting some of the allegations of the complaint with respect to the nature of its business, but denying that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held on July 6, 7, and 9, 1.948, at New York, New York, before Horace A. Ruckel, the undersigned Trial Examiner duly appointed by the Chief Trial Examiner. The General Counsel and the respond- ent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues, was afforded all parties. At the close of the hearing the Trial Examiner granted a motion by counsel for the General Counsel to conform the pleadings to the proof in formal matters, and reserved ruling upon a motion by counsel for the respondent to dismiss the complaint. This motion is disposed of by the recommendations hereinafter made. The undersigned advised the parties that they might argue orally before him, and might file briefs with him by July 24, 1948. Subsequently this time was extended to August 12. No oral argument was had and no briefs were filed. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation with its principal office and place of business in New York City where it is engaged in the manufacture, sale, and distribution of automotive, aircraft, marine accessories, and related prod- ucts. The respondent, at the time of the events herein complained of, annually caused to be purchased and delivered to its New York plant, brass, steel, alumi- num and other materials in excess of $1,000,000, of which approximately 75 percent was transported to its plant from States of the United States other than the State of New York. During the same period the Respondent annually manufactured at its New York plant products valued in excess of $1,000,000, of which approximately 90 percent was transported from the plant to States of the United States other than the State of New York. The respondent admits that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. ' The Trial Examiner granted a motion by counsel for the General Counsel to dismiss the allegations of the complaint alleging that the respondent had refused to bargain collectively with the Union. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Jr. THE ORGANIZATION INVOLVED Prior to August 23, 1947, the effective date of the Tait-Hartley Act, and at the time of the events herein complained of, Foreman's Association of America, Chapter 104, was a labor organization within the meaning of Section 2 (5) of the Act, and admitted to.membership supervisory employees of the' respondent. III. THE UNFAIR LABOR PRACTICES A. The discharges; other interference, restraint, and coercion 1. Background In 1937 the respondent's production employees were organized into the Inter- national Union, United Automobile, Aircraft, and Agricultural Implement Work- ers of America (UAW), Local 844, affiliated with the Congress of Industrial Organizations, herein called Local 844. In July 1944, the Union began organi- zation of the supervisory employees, most, if not all, of whom became members. Edward Carfero was chosen president ; William DeLeo, vice president ; Josephine Carbonaro, corresponding secretary ; Andrew Cervelli, director of membership ; and Michael Collello, sergeant-at-arms. DeLeo, Angelo Salerno, and Peter Ter- ruso were chosen members of the Executive Board. Salvatore Ingrisano was also elected to an office, although the record does not disclose which one. All these employees, with the exception of Terruso, are among those named in the complaint as having subsequently been discharged because of their union activity.' The organization of the foremen was conducted openly. Benjamin Edelman, the respondent's vice president, and the only witness whom it called, testified that most of the above-named employees discussed the formation of the Union with him; that they told him, and that he believed, that all of the foremen had joined it; and that he knew who the officers were. The respondent's reaction to the organization of its foremen was violent, to judge by the diatribes en- gaged in from time to time by J. Al. Aufiero, the respondent's president and general manager, when discussing the Union with individual supervisors.' Meetings of the Union were held in a private home on the opposite side and a block down the street from the respondent's office. Edelman and other officials could, and Edelman testified that on more than one occasion he did, see mem- bers of the Union congregating outside the meeting place. There is no sub- stantial, credible evidence, however, that any of these officials went out of their way to observe these events, and it is hereinafter recommended that the allega- tion of surveillance be dismissed. 2. The strike ; the discharge of six foremen On Friday, September 22, 1.944, at 9 o'clock in the morning, all the respondent's approximately 500 production workers went on a strike which lasted until the middle of December.' During the first week of the strike, from September 22 to September 29, the foremen with a few individual exceptions continued to report 2 Terruso' s name was included in the amended charge, but not in the complaint. 3 Several undenied instances of threats of discharge and physical violence are hereafter related in connection with the discharges. * As will be seen, however , -production eras .resumed about November 13; when most of the foremen were called back to work. E. A. LABORATORIES, INC. 239 for work. This consisted for the most part of cleaning the floors and benches, taking inventory, and maintaining the machines. Some of this work was cus- tomarily clone by the production workers, and some by the foremen ; but none of it was clearly production work. On the afternoon of September 29, Aufiero called a meeting of foremen at which he told them that he was running out of other work and that thereafter they would have to do production work. That week end the Union held a meet- ing at" which it was decided that the foremen should not do production work during the pendency of the strike, and a committee of five was delegated to inform Auflero. This was done on Monday morning, October 2. Aufiero told the committee that in view of their refusal all the foremen were "suspended" until further notice. The credible testimony of Cervelli and of other members of the committee is that Aufiero added that only those foremen whom lie wanted would be called back to work after the strike. Following the refusal of the foremen to do production work-a refusal which in effect rendered them strikers-various foremen marched as a group in the picket line of the production workers and carried picket signs, furnished by Local 844, which announced their solidarity with them. It is evident that the respondent viewed these activities of its supervisory employees with emotions amounting to something less than enthusiasm, and when they reported to tile office on October 6 for their pay for the week of September 22-29, Aufiero in- formed them, as he had the committee a few days before, that they were "sus- pended", and took up their badges. On -November 13, as a preliminary to resuming production„the respondent called all its foremen back to work with the exception of Carfero, DeLeo, Salerno, Ingrisano, Carbonaro, and Cervelli. These six men were never reemployed. The respondent's failure to recall these employees was tantamount to their dis- charge, and the undersigned so finds 5 Conclusions as to the discharges . Edelman gave as the respondent's reason for not recalling these six employees upon resuming production that, as officers of the Union, they were responsible for the strike of the foremen, which in the respondent's view was in aid and support of the strike of Local 844. The latter strike, the respondent contended, was "unlawful" as well as in violation of its contract with Local 844.° The issue presented is thus clearly drawn. It is whether an employer, during a strike, may discharge or refuse to reemploy foremen who themselves have quit work rather than perform production work customarily done by the strikers. As found in the section entitled "The remedy", the discharge is dated from November 13. the (late of the failure to recall, rather than from September 29, the last day that work was performed, or October 2, when the striking foremen were "suspended". This suspension, in light of the subsequent recall of most of the foremen, the undersigned regards as merely tactical and as it reply to the action of the foremen in striking. ° The respondent offered to prove on cross-examination of Carfero, and on the direct examination of Edelman, that Local 844 went on strike "in violation of the war Labor Disputes Act and in violation of the contract between United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., Local 844, thereof, and respondent, dated November 7, 1943," and that with knowledge of these facts, the supervisory employees entered upon a course of conduct in support of the strike. Tile undersigned rejected this offer of proof. The contract referred to as existing between the Union and the respondent was not offered in evidence, and there was no showing that Carfero, the president of the foremen's Union, or Edelman, the respondent's vice president, had, or could have had, any knowledge of the reasons which motivated the production workers in calling their strike. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has answered this question in the negative. In the Pinaud case' the Board held with reference to a discharged forelady : "The respondent was not required . . . to permit Rosen to remain on the job and at the same time to refuse to do its lawful bidding. Under the circumstances presented . . . the respondent was privileged, as an incident of an employer's right to replace economic strikers, to give Rosen an election either to work as in- structed or not to work and leave the premises. However, it was not permitted to discharge or otherwise to discriminate against her for her participation in the strike." The undersigned finds that the respondent on November 13, 1944, discharged and refused to reemploy Edward Carfero, William DeFeo, Andrew Cervelli, Josephine Carbonaro, Salvotore Ingrisano, and Angelo Salerno, because they engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. Thereby the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The discharge of Collello, Orvin, Leone, and Vecchio Michael Collello: Collello first came to work for the respondent about 192(1. During the past several years of his employment lie was general foreman over the fifth floor. Collello :joined the Union in July 1944. Shortly thereafter, J. M. Aufiero called Collello to a conference in the show room. Collello's testimony is to the effect that together with J. Al. Aufiero were Rocco Aufiero, assistant plant superintendent, Louis DeFeo, and one other supervisor. Collello's uncontradicted testimony is to the effect that when he arrived in the show room Rocco Aufiero placed a 3S caliber gun on the table in front of him and kept it there while President Aufiero, directing his remarks to the foreman, charged that they were attempting to get other foremen to join the Union, and declared that he (lid not intend to have a union in the plant, and that if he found out that the organizing was continuing he would "see to it." The foremen with the exception of Collello were then ex- cused, and J. M. Aufiero continued the conversation with Collello in the presence of Rocco Auflero. President A.uflero asked Collello to look him "square in the eye," saying that he, Aufiero, was a "Mussolini moan" and that he could "take Collello's head" and "put it out the window" and Collello would .never know what had happened. He went on to state that there were fifty millionaires like himself in the United States who were "Mussolini Mafia", that he understood that Collello was the leader of the Union, and that he wanted it broken up within a week. Collello's further testimony is that thereafter one Al Ocuto, who according to Collello was "a very bad actor" and a "stooge" for Aufiero, was assigned to Col- lello's department as his assistant, to check up on him. In August, Collelli was elected sergeant-at-arms in the Union and shortly there- after, J. M. Auflero called him to the office. This time, again according to Col- lello, Aufiero said that it had come to his knowledge that he had been made "bouncer" for the Union, and that lie would like to take Collello's head and a Pinaud., Incorporated and Mary Rosen , 51 NLRB 235 . In further defining the status of a supervisor in such a situation , the Board said : "By her refusal to perform the work of a striker , Rosen in that respect, joined the strike, becoming in effect a partial striker. A strike, or a partial strike , is a form of concerted activity that is protected under the Act, The discharge of Rosen for engaging in such activity constituted a violation of Section S (3)." (Citing cases.) E. A. LABORATORIES, INC. 241 "bounce it through that window." Collello admitted. that lie had been elected sergeant-at-arms, and the conversation terminated like the one previously re- lated, by Auflero's telling Collello that he wanted the Union broken up. Collello's testimony, although uncontradicted in any respect, since the respond- ent called only Edelman as a witness, revealed Collello's memory to be faulty in several instances with respect to important dates,' and lie admitted that he had been hospitalized for a short time because of a nervous disorder. Furthermore, as will be seen, Collello's testimony concerning the reason given him for his discharge differed in at least one important respect from testimony previously given by him. For these reasons the undersigned receives Collello's testimony with caution. For example, he does not accept his uncorroborated statement that Ocuto was assigned to check up on him after his talk with Auflero. Neverthe- less, the undersigned believes that Collello's testimony as to Aufiero's statements to him as related above, must be accepted as substantially accurate. It was subject to contradiction by at least two, and possibly three witnesses, and it remained uncontroverted. Moreover, the declarations which he attributed to Aufiero are consistent with other statements attributed to him by other witnesses whom the undersigned found reliable. On April 20, 1945, Helies, plant superintendent, called Collello to his office and told him that his services were no longer required. Collello, according to his own testimony, protested that lie was being let go because of his connection with the Union, and Helies acknowledged this and said that the Union had "ruined" Collello. Collello admitted that he had failed to mention this latter statement while testifying in a previous hearing.' His explanation was simply that he had forgotten it, but that his memory had since been refreshed. The undersigned does not credit this part of Collello's testimbny. Edelman's testimony is to the effect that during the early part of April 1945, he called Collello to his office where he told him that Helies had complained that his Work was unsatisfactory, his attendance poor, and that he had been coming in late. According to Edelman, Collello excused himself by saying that he was having trouble with his wife. Edelman told Collello that he would have to improve or he would be discharged. At the time of Collello's discharge, ac cording to Edelman, Helies told Edelman that Collello was "wacked up" and Edelman gave Helies permission to discharge him. The undersigned found Edelman to be a credible witness and accepts hig account of the reason for Collello's discharge, and the circumstances surround- ing it, in preference to Collello's. Moreover, it is not apparent why the respondent, if it discharged Collello because of his union activity, did not do so in Novem- ber 1044, when it admittedly let six other foremen go because of their part in the strike of the production employees. There is no evidence that Collello's activity in the Union increased thereafter. The undersigned believes and finds that the respondent discharged Collello because of his general unsatisfactoriness. as an employee, and because of his emotional instability and not because of his. activity in connection with the Union. 8 For example, he testified that he did not return to work after the strike until January, 1945, whereas the credible evidence is that he was called back on November 13, 1944, along with most of the other foremen , and that he was discharged in May 1945 , whereas he was discharged in April. 8 E. A. Laboratories and United Automobile, Aircraft and Agrieulttiral Implement Workers, of America, C. I. 0., Local 8i1I, 80 NLRB 625. Collello's testimony is 54 page 4421 of the record. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marion Orvin: Orvin first came to work for the respondent in August 1942. She was employed continuously until her discharge on June 22, 1945. Her work was that of an inspector and assistant forelady in the gun sight division of the optical department. She joined the Union in August 1944, but so far as the record discloses did not become particularly active in its affairs. On one occasion, according to Orvin's credible testimony, Aufiero declared to her that members of the Union were "rats lower than some of the rats that crawl in the gutter," and that he would never deal with the Union. Orvin's further testimony is to the effect that on June 15, when she was leaving the union's meeting place near the plant in the company of Alfonse Leone, they were followed by Aufiero and Ocuto and that later, when Aufiero had parked his car in front of the plant, he "just looked at" Orvin and Leone as they walked toward the subway. The undersigned credits Orvin's testimony, supported by that of Leone, that the two were observed by Auflero, but regards the evidence as insufficient for a finding of espionage, and without particular significance inas- much as their activity in the Union was already known to the respondent's officials. On June 22, Relies called Orvin to the office and gave her a release, saying that her department was closed and that there was no more work for her. Orvin asked Relies, according to her testimony, if she could do production work, and i=lelies replied that she would not want such work after having worked as a supervisor. Orvin admitted that the contract for gun sights on which she had been work- ing had been completed, and that there was no more work in that department. This is consistent with Edelman's testimony that in February 1945, all the respondent's Government contracts were terminated and the production of gun sights ceased, and that Orvin's job in that department from then until her dis- charge consisted of preparing termination inventories for the purpose of filing claims with the Government. This work of conversion to peacetime produc- tion was completed in June. Edelman testified credibly that, assuming that Orvin requested Relies to be allowed to do production work in some other depart- ment, the respondent would have had to deny the request because under its contract with Local 844 she would have been a new employee and would have been placed at the end of the seniority list for hiring. The undersigned finds that Orvin was legitimately discharged because her job was terminated, and not because of her activity in the Union. Alfonse Leone: Leone first came to work for the respondent in 1935. At the time of his discharge along with Orvin, in June 1945, he was an assistant foreman in the polishing department. He joined the Union in July 1944. Sometime in August or September lie had what seems to have been the customary conversa- tion with Aufiero concerning his union membership, during which Aufiero told him and other members of the Union who were present that they were a "bunch of racketeers and blackhands" and that he wanted none such in the plant. A day or so after he had been observed by Aufiero leaving the union hall, Aufiero held a conference with several supervisory employees, including Leone, where, according to Leone, Aufiero asked him why he had been at the union hall. When Leone replied that he had the keys to the hall and opened the door for the men at their meetings, Aufiero said that if Leone was interested in "some other purposes apart from" his work, he should quit. The undersigned accepts this testimony of Leone's as being in accord with the facts. Leone was one of the supervisors called back to work on November 13, 1945. On June 22, Leone, like Orvin, was told by Relies that he was being let go E. A. LABORATORIES, INC. 243 because there was no more work for him to do. Like Orvin, Leone asked to be given some other work in the plant and was refused . Edelman 's credible testi- mony was to the effect that in view of the expiration of war contracts, there was no more work for Leone to do as assistant supervisor . The reasons which he gave for the respondent's not giving Orvin nonsupervisory work are simi- larly applicable to Leone , and the undersigned finds them to be valid . He finds that the respondent laid off Leone because his job had been terminated , and not because of his activity in behalf of the Union. Vera Vecchio: Vecchio was first employed in 1936 as a packer in the horn department. Subsequently, she became an assistant forelady in the gun sight division . She joined the Union in July 1944 . During October or November, while the strike was still in progress , Vecchio , according to her own testimony, attempted to procure a release from Mike Stango , assistant superintendent, so that she could obtain a job elsewhere , and Stango refused to give it because she belonged to the Union . Vecchio did not subsequently return to work for the respondent, but there is no evidence to indicate that she was discharged or re- fused employment , and the undersigned concludes and finds that she resigned voluntarily. 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 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, it will be recommended that it take certain affirmative action designed to effectuate the policies of the Act 10 It has been found that the respondent discharged Edward Carfero, William DeLeo, Andrew Cervelli, Josephine Carbonaro, Salvatore Ingrisano, and An- gelo Salerno, because they engaged in concerted activity for the purposes of col- lective bargaining or other mutual aid and protection. It will therefore be recommended that the respondent offer these employees immediate and full re- instatement to their former or substantially equivalent positions without preju- dice to their seniority and other rights and privileges. It will be further recom- mended that the respondent make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sumy of money equal to the amount lie normally would have earned as wages from November 13, 1944, the date of the respondent's dis- criminatory refusal to reemploy them" to the date of offer of reinstatement less his net earnings'' during said period. 10 In failing to recommend the usual cease and desist order, and in recommending rein- statement and back pay, the undersigned follows the Board's rationale in Republic Steel Corporation (Upson Division) and Foreman's Association of America, 77 NLRB 1107. 11 The complaint alleges that these six discharges took effect as of September 29, 1944. This was the date on which the foremen were told that they had to do production work. At the same time, or on the following Monday, October 2, or both, the foremen told the respondent that they would not do the work of the strikers, and Aufiero told them that in that case they were "suspended." It has been found that the foremen's refusal constituted 877359 -50-vol. 87-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned will recommend that the complaint be dismissed, insofar as it alleges that Michael Collello, Marion Orvin, Alfonse Leone, and Vera Vecchio were discharged because of their activity in behalf of the Union. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : . CONMUSIONS OF LAW 1. Foreman's Association of America, Chapter No. 104. was. at the time of the events herein related and up to August 23, 1947, a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Edward Carfero, William DeLeo, Andrew Cervelli, Josephine Carbonaro, Salva- tore Ingrisano, and Angelo Salerno, 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 unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent did not engage in unfair labor practices by discharging Michael Collello, Marion Orvin, Alfonse Leone, and Vera Vecchio. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, E. A. Laboratories, Inc., its officers, agents , successors, and assigns , shall : (a) Offer Edward Carfero, William DeLeo, Andrew Cervelli, Josephine Car- bonaro, Salvatore Ingrisano, and Angelo Salerno, immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole Edward Carfero, William DeLeo, Andrew Cervelli, Josephine Carbonaro, Salvatore Ingrisano, and Angelo Salerno, for any loss of pay they may have suffered because of the respondent's discrimination against them by pay- ment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from November 13, 1944, to the date of the respondent's offer of reinstatement, less his net earnings during said period ; (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the (late 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 date of the receipt of this Intermediate Report, the respondent notifies said Regional Director 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. It is recommended that the complaint be dismissed, insofar as it alleges that Michael Collello, Marion Orvin, Alfonse Leone, and Vera Vecchio were dis- a partial strike. That being the case, and the "suspension " being at the most a tactical maneuver, it is recommended that back pay accrue beginning with November 13, the date of the respondent's failure to reinstate these foremen along with their fellows. 12 See Crossett Lumber Company, 8 NLRB 440 , 497-498. E. A. LABORATORIES, INC. 245 charged in violation of the Act, and insofar as it alleges that the respondent engaged in espionage. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Interme- diate 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 six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeo- graphed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 7th day of September 1948. HORACE A. RUCKEL, Trial Examiner. SUPPLEMENTAL INTERMEDIATE REPORT Mr. San fjord D. Ten, for the General Counsel. Messrs. Alvany, Eisner, and Donnelly, by Mr. Merwin Lewis, of New York, N. Y., for the Respondent. On September 7, 1948, Horace A. Ruckel, the undersigned Trial Examiner, issued his Intermediate Report in the above-entitled matter, finding that the Respondent had unlawfully discriminated against the six supervisory employees named in the complaint, and recommending that the Respondent offer them rein- statement with back pay. The Respondent thereafter filed its Exceptions to the Intermediate Report and a supporting brief in which it asserted that certain evidentiary rulings by the Trial Examiner precluded it from establishing its defense to the alleged discrimination against the complaining union herein. On March 25, 1949, the Board issued an order remanding the case to the Trial Examiner and directing him (1) to reopen the record for the limited pur- pose of receiving evidence from all parties as to the purpose of the supervisors' strike, and (2) upon the introduction of such evidence in the record, to prepare and issue a Supplemental Intermediate Report, setting forth his finding with respect to this issue. Pursuant to notice, a hearing was held on April 12, 1949, at New York, New York. The General Counsel and the Respondent were represented by counsel 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and participated in the hearing. Full opportunity to be heard, and to examine and cross-examine witnesses, was afforded all parties. At the close of the hear- ing the parties were advised that they might argue orally before the Trial Examiner, and might file briefs with him by April 27, 1949. On that date the Respondent filed a supplemental brief. SUPPLEMENTAL FINDINGS OF FACT The Trial Examiner found in his Intermediate Report that on September 22, 1944, the 'Respondent's production workers, affiliated with United Automobile Workers of America, herein called the U. A. W., went on strike ; that the fore- men refused to do production work during the strike ; that Foreman's Association ,of America, Chapter No. 104, comprising the Respondent's foremen, and herein called the Union, held a meeting at which they decided to go on strike ; and that thereafter they went on strike and marched as a group in the picket line of the production workers, carrying picket signs announcing their solidarity with them. 'There has been, and is, no controversy as to the correctness of these facts. The only further evidence on this point adduced at the hearing on April 12 had to do with the means of obtaining the support of the foremen for the strike of the production workers. Paul Newman, international representative for the U. A. W., not previously called as a witness, testified that 'during the week beginning September 25, 1948, he called at the meeting hall of the Union, ad- dressed the assembled foremen, and asked them to come out on strike in support of the production workers. His testimony was supported by that of Edward Carfero, president of the Union, who did not previously testify on this point,' and there was no testimony to the contrary. The undersigned finds that the support of the foremen for the production workers' strike was obtained in the manner described by Newman and Carfero, and that the purpose of the foremen's strike was to support the strike of the' production workers. Conclusion The new evidence adduced at the hearing on April 12 only substantiates the findings of fact contained in the Intermediate Report of September 7, 1944, and the Trial Examiner accordingly reiterates the conclusions of law and rec- ommendations contained therein. As provided in Section 203.40 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case the Board, pursuant to Section 203.45 of said Rules and Regulations, file i The Board's order remanding the case for the limited purpose of taking testimony as to the purpose of the foremen's strike, states that the Trial Examiner 's rulings at the prior hearing included the rejection of proof by the Respondent on this point. At the hearing on April 12 , counsel for the Respondent stated : As I recall the testimony, you permitted evidence in the last hearing on the question of the purpose of the supervisors ' strike. There is affirmative evidence in the record' on that issue. If the case is opened, it seems to inc that it should be opened for the purpose of permitting evidence that you didn't permit us to put in, not evidence that you did permit us to put in. The Trial Examiner again denied the Respondent 's motion to permit evidence as to the purpose of the production workers' strike. The Board, in its remanding order, stated that it saw no necessity for considering this question until the purpose of the supervisors ' strike had been established. E. A. LABORATORIES, INC. 247 with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recom- mended Order 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 six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such state- ment of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Sec- tion 203.46 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations , be adopted by the Board and become its findings, con- clusions , and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 7th day of May 1949. HORACE A. RUCKEL, Trial Examiner.