Alside, Inc.

In the Matter of ALSIDE, INC. and LAWRENCE EDWIN WORLEY, JR. Case No. 8-CA-96.-Decided February 3,1950 DECISION AND ORDER On May 5, 1949, Trial Examiner J. J. Fitzpatrick issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner insofar as they are consistent with this Decision and Order.3 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) of the Act by certain conduct engaged in by Cochrane, the Respondent's plant superintendent, as set forth in the Intermediate Report. The Trial Examiner also found that Cochrane's statement to Wolonsky, the Union's vice president, that the Respondent might not be pleased with the advent of the Union and could move out of town in which event Wolonsky would lose his job, did not constitute a violation of Section 8 (a) (1)- of the Act. In view of the fact that no exception was filed to the latter finding, we do not pass on this point. 'Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. 2 We agree with the Trial Examiner's ruling in denying the Respondent's motion to dis- miss the complaint on the ground that the complainant was "fronting" of an organization which was not in compliance with Section 9 (f), (g), and (h) of the Act. Odin Industries, Inc., Winchester Repeating Arms Company Division, 86 NLRB 203. 3 The Respondent 's request for oral argument is hereby denied, as the record and the exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. 88 NLRB No. 101. 460 ALSIDE, INC. 461 2. We agree with the Trial Examiner's finding that the Respondent discriminatorily laid off a group of 19 employees on September 16, 1948, in violation of Section 8 (a) (3) of the Act. 3. The record shows, as found by the Trial Examiner, that on the morning of September 17, 1948, 12 employees engaged in a strike in protest of the Respondent's discriminatory action in laying off the first group of employees. We agree with the Trial Examiner that, as fully set forth in the Intermediate Report,' the Respondent dis- charged these employees on September 17 because of their strike activ- ity, in violation of Section 8 (a) (1) and (3) of the Act. Unlike the Trial Examiner, however, who recommended that these employees be awarded back pay from September 17, 1948, the date of their dis- charge, we find, for the reasons stated below, that they are entitled to back pay only from September 20,1948. The Remedy Having found that the Respondent discriminatorily laid off 19 em- ployees and that only 3 of them were reinstated or offered reinstate- ment we shall order the Respondent to reinstate the remaining 16 em- ployees, listed in column 1 of Appendix A, to their former or substan- tially equivalent positions and to make them whole for any loss of pay they may have suffered because of the Respondent's discrimina- tion against them by payment to each of them of a sum of money equal to that which he normally would have earned from September 17, 1948, the effective date of the discrimination, to the date of the Respondent's offer of reinstatement, less his net earnings during said period.5 We have also found that on September 17, 1948, the Respondent discharged 12 strikers (Clarence Hamlin and those listed in column 2 of Appendix A). The discharge of these employees because they engaged in concerted activity protected by Section 7 of the Act vio- 4 The Intermediate Report contains certain inaccuracies . Upon our independent con- sideration of the record as a whole, none of the inaccuracies affects our concurrence with the Trial Examiner 's ultimate conclusions . Accordingly, we make the following corrections : ( 1) Employee Richard D . Forward is variously referred to as one who was and was not laid off on September 16, 1948. The record shows , and we find, that he was among the group laid off on that date . ( 2) The Trial Examiner stated that all the strikers denied the testimony of Kaufman , the Respondent 's president , that he requested them to return to work when they were given their pay checks. The record reveals that one striker admitted that such request had been made by Kaufman , but this circumstance is insufficient, in our opinion , to disturb the Trial Examiner's credibility finding. 6 Eugene Athens and Clifford Stemple were reinstated on October 29, 1948, and Novem- ber 13, 1948 , respectively; and Joseph Wolonsky was offered , but refused, reinstatement on November 21, 1948. We shall order the Respondent to make them whole from Sep- tember 17, 1948, the date of the Respondent's discrimination against them , to the date of their reinstatement or offer of reinstatement. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lates Section 8 (a) (1) of the Act. Because such discharge amounts to a discrimination in regard to hire and tenure of employment, there- by discouraging membership, in a labor organization, it also violates Section 8 (a) (3). Moreover, whether the discharges be regarded as a violation of Section 8 (a) (1) or of Section 8 (a) (3), we find that it is necessary to order, as hereinafter provided, reinstatement with back pay in order to effectuate the policies of the Act.6 Ordinarily, as found by the Trial Examiner, discriminatorily dis- charged employees are entitled to back pay from the date of their discharge. In the instant case, however, when these employees were discharged they were on strike. Until, therefore, they had indicated their desire to return to work, it cannot be said that their loss of wages was caused by the discharge.7 As set forth in the Intermediate Re- port, by a letter to the Respondent dated September 20, 1948, the Union requested reinstatement for the discharged employees and those who had been laid off. The Respondent did not reply to this letter or make any effort to reinstate the strikers. In these circumstances, we are satisfied that by September 20 the discharged strikers had indi- cated an unconditional willingness to return to work. We shall ac- cordingly, unlike the Trial Examiner, award them back pay from September 20, 1948, to the date they are reinstated or offered rein- statement.' 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, Alside, Inc., Akron, Ohio, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, C. I. 0., or any other labor organization of its employees, by discrim- inating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other ON. L. R. B. v. The Sandy Hill Iron & Brass Works, 145 F . 2d 631 ( C. A. 2) enfg. 55 NLRB 1. 7 Massey Gin and Machine Works, 78 NLRB 189 ; Kallaher and Mee, Inc., 87 NLRB 410. 8 One of these employees , Clarence Hamlin , was reinstated on October 9, 1948. We shall order the Respondent to make him whole from September 20, 1948, to the date of his reinstatement. ALSIDE, INC. 463 mutual aid or protection, or to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act as guaran- teed by Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 9 (a) Offer to the employees listed in columns 1 and 2 of Appendix A immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Eugene Athens, Clifford Stemple, Joseph Wolon- sky, Clarence Hamlin, and the employees listed in columns 1 and 2 of Appendix A in the manner set forth in the section entitled The Remedy; (c) Post at its plant in Akron, Ohio, copies of the notice attached hereto and marked Appendix A.10 Copies of said notice to be fur- nished by the Regional Director for the Eighth Region, shall after being signed by the Respondent's representative, be posted by the Respondent, 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; (d) Notify the Regional Director for the Eighth Region in writ- ing, within ten (10) days from the date of this Order what steps ,the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : AVE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEEL- WORKERS OF AnIERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own 9 The Board expressly reserves the right to modify the back pay and reinstatement pro- visions if made necessary by a change in circumstances in the future , and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now appearing. 10 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words : "A DECISION AND ORDER," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act as guaranteed by Section 7 thereof. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to any seniority or other rights and privi- leges previously enjoyed, and make them ( and also Eugene Athens, Clifford R. Stemple, Joseph Wolonsky, and Clarence Hamlin), whole for any loss of pay suffered as a result of the discrimination. 1. 2. Carl Buterbaugh Joseph Bixler Harold Coler Myron B. Cole Charles M. Flesher Theron B. Cole Carl N. Foltz Robert L. Croft Richard D. Forward Joseph Markovich David John Geisinger Donald J. Matticks Ronald L. Hollister Edward Mills Alvin Jones Ross K. Osborne William Carl McCabe C. E. Robinson Robert B. McDonald James Ruse Vernon C. McIntyre Frank Verashak Robert Petty Leslie Stites William G. Stump Russell L. Wells Lawrence E. Worley, Jr. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. ALSIDE, INC., Employer. By ------------------ (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. ALSIDE, INC. INTERMEDIATE REPORT 465 Mr. Philip Fusco, for the General Counsel. Mr. Max W. Johnstone, of Akron, Ohio, for the Complainants. Mr. Louis L. Manes and Mr. Stanley Denlinger, of Akron, Ohio, for the Respondent. STATEMENT OF THE CASE Upon an amended charge duly filed on November 1, 1948, by Lawrence E. Worley, the General Counsel of the National Labor Relations Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued a complaint dated De- cember 3, 1948, against A,lside, Inc., of Akron, Ohio, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 (61 Stat. 136), herein called the Act. Copies of the complaint, the amended charge, and notice of hearing were duly served upon the Respondent. With respect to the unfair labor practices, the complaint as amended at the hearing, alleges in substance that the Respondent : (1) From about August 1948 to the date of the complaint, (a) Interrogated its employees concerning activities on behalf of United Steel Workers of America, C. I. O. (herein called the Union or Steelworkers), (b) Solicited opinions of employees about the Union, employees' relationship therewith, and its effect on management, (c) Informed employees that the plant could leave Akron if necessary to avoid recognizing the Union, and that layoffs might result from union activity, (d) Accused employees of being trouble-making union organizers, and (e) Warned applicant for employment Joseph Wolonsky against indulging in unionism ; (2) On or about September 16, 1948, laid off 19 named employees,' and on or about September 17, 1948, locked out and discharged 31 employees,' failed and refused thereafter to reinstate Eugene Athens and Clarence Hamlin until about October 21, 1948, and failed and refused to reinstate ,any of the other named employees, because the laid-off and locked-out employees joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection. The Respondent's answer filed December 20, 1948, and as amended at the hearing, (1) admits the allegations in the complaint as to the nature of its business and the layoffs of the employees named on September 16,3 but denies all other allegations in the complaint; (2) alleges that the Respondent on Sep- tember 17 requested Eugene Athens and the other employees it had not laid off to continue to work ; that said employees refused to work and were discharged, but that Eugene Athens and Clarence Hamlin have since returned to work for the -Respondent; (3) alleges that the layoffs were for economic reasons and the discharges were for just cause, and none of said former employees have since i Eugene Athens, Carl Buterbaugh , Harold Coler , Charles M. Flesher, Carl N. Foltz, Richard D . Forward , David John Geisinger, Ronald L. Hollister, Alvin Jones, William Carl McCabe, Robert B . McDonald , Robert Petty, Clifford R . Stemple, Leslie Stites, Wil- liam G . Stump, Russell L. Wells, Joseph Wolonsky, Lawrence E. Worley, Jr ., and Vernon C. McIntyre. 3 The 19 employees named in the previous footnote and Joseph Bixler, Myron B. Cole, Theron 13 . Cole, Robert L. Croft, Clarence Hamlin , Joseph Markovich , Donald J. Matticks, Edward Mills , Ross K. Osborne, C. C. Robinson , James Ruse, and Frank Vereshak. 3 Except Eugene Athens. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested reinstatement except Athens and Hamlin , and Joseph Wolonsky who requested a part-time job and no such job was available. The answer further alleges that the Union on September 17, 1948, demanded recognition as the exclusive bargaining representative of all the Respondent 's production and main- tenance employees, but such demand was refused by the Respondent because the Union had not been so certified by the National Labor Relations Board (herein called the Board) ; that upon such refusal to recognize it the Union called a strike against the Respondent which strike continued in effect from September 17 to about October 7, 1948; that during the strike all the complainants engaged in acts of intimidation, coercion, and illegal picketing and have forfeited their right to reinstatement.' Pursuant to notice, a hearing was held from January 4 to January 25, 1948, at Akron, Ohio, before J. J. Fitzpatrick, the undersigned Trial Examiner duly desig- nated by the Chief Trial Examiner. The General Counsel, the Respondent, and the complainants were represented by counsel. All participated fully in the hearing and had opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, Respondent's motions were denied, (1) requiring the General Counsel to state whether the proceeding was held on behalf of Lawrence Edwin Worley, Jr., as an individual, or in Worley's name as representative of the complainants; (2) to dismiss the complaint because Worley was either (a) "fronting" for the Union which had not complied with the requirements of Section 9 (h) of the Act,' or (b) acting as agent for complainants, and that neither lie nor the complainants have complied with the provisions of Section 9 (h) of the Act. Respondent's motion at the close of the General Counsel's case to dismiss on the merits, and also on the jurisdictional grounds previously raised, was denied, but ruling was reserved on this blanket motion when renewed at the close of the hearing. As has been heretofore found, the jurisdictional grounds raised in the motion lack merit. That portion of the motion based on the merits is, in effect, denied as will hereafter appear. The General Counsel argued orally on the record (the other parties waiving oral argument), and briefs have been received from the Respondent, the complainants, and a memorandum from the General Counsel supplementing his oral argument. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF TIIE RESPONDENT Alside, Inc., is an Ohio corporation with principal office and place of business at Akron, Ohio, where it is engaged in the manufacture, sale, and distribution of aluminum siding and related products. It annually purchases materials (mostly aluminum) in excess of $500,000 in value, of which more than 50 percent comes from outside the State of Ohio. More than 70 percent of its finished 4 The answer also raised jurisdictional questions which are disposed of by rulings on motions as will hereafter appear. ' There is no evidence that Worley was "fronting" for anybody when he filed charges that his rights as an employee of the Respondent , as well as the rights of other employees, had been illegally interfered with, and that he and the other employees had been dis- criminatorily treated. After an investigation of the charges by Worley, the General Counsel issued a complaint based on these charges. Section 7, the keystone of the Act, guarantees certain rights to employees. The issue in this case is whether the employees' rights have been interfered with. It is therefore found that the above contentions of the Respondent, and as set forth in its answer as well as in its motions, are without substantial merit. ALSIDE, INC. 467 products, valued annually in excess of $700,000, is sold and shipped to customers outside the State. As stipulated by the Respondent at the hearing, it is found that Alside, Inc., is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Steel Workers of America, C. I. 0., is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and sequence Making siding for houses out of aluminum was an innovation in the construe- tion industry. The Respondent began actual manufacturing operations in Janu- ary 1948, with about 4 production and maintenance employees. The number of employees gradually increased until by the early summer of 1948, 33 such workers, exclusive of supervisors, were employed. Sentiment for a union developed among the workers in July, and by September 15, 32 of the 33 production and maintenance workers here employed had signed cards in the Steelworkers. The night of September 15 a union local was organ- ized and officers were elected.6 The next night, September 16, 19 production and maintenance workers from all 3 shifts were laid off. On September 17 all plant workers excepting 2 were discharged by the Respondent. The afternoon of the same day a picket line, authorized by the Local, was established and main- tained in front of the Respondent's plant from the evening of September 17 to about October 7. In the meanwhile, the Respondent hired and trained new men to operate its machines. By the end of November the working crews for the 2 shifts then operating numbered about 40, including 3 employees who had been rehired. B. Events up to and including the layoffs of September 16 About the end of August 1948, according to employee William C. McCabe's undenied and credited testimony, Plant Manager Allen Lessing told McCabe (who had joined the Union on August 17) that the ship regarded him as a union organizer and a trouble maker. Lessing hired Charles E. Robinson on August 16 at a starting rate of $1 per hour, although some of the new employees were making only 90 cents an hour. Lessing told Robinson to keep his rate secret, that something "was going on around the plant" and that Robinson should "keep his nose out of it" and "he would go places." On September 15, Robert Petty, who worked on the second shift,' secured per- mission from Foreman Glenn Laughlin to get off from work after 7 p. in. that night "for personal reasons." Before 7 p. m., Lawrence E. Worley and Russell Wells (both of whom worked on the first shift) called at the plant for Petty. All three left together to attend the union organizational meeting heretofore referred to. Shortly after the departure of Petty,. Worley, and Wells, Superin- tendent Cochrane called employee David John Geisinger into his office and in- " The officers elected were all employees of the Respondent, as follows : President, Lawrence Worley ; vice president, Joseph Wolonsky ; recording secretary, Clifford R. Stemple ; financial secretary, Richard D. Forward ; treasurer, James Ruse ; trustees, Leslie Stites, William G. Stump, and Thermon B. Cole; guards, Robert Petty, Robert L. Croft, and Joseph Markovich. The second shift started at 3: 30 p. m. and ended at midnight. 8S2101-51-----31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quired of him where Petty and the other two men were going. Upon Geisinger's reply that they were attending a union meeting, Cochrane asked Geisinger how far union organization had developed in the plant. Geisinger professed igno- rance on the subject, but said he had signed a union card. Cochrane then stated that he had "belonged to several unions" before coming to the Respondent's plant, and he "didn't see too much good in a union ; that they caused trouble and lay- offs." Cochrane added, however, that if the men decided on a union in the plant he would be "for it too." 8 The next morning, September 16, before the first shift began at 7 a. in., em- ployee Russell Wells was in Cochrane's office. Cochrane inquired what happened at the union meeting the night before and what officers were elected. Wells stated that Worley was elected president, Wolonsky, vice president, and Stemple, secretary of the Local. While they were talking, Wolonsky passed by on his way to work and Cochrane called him into the office. He asked Wolonsky how he could hold his office of vice president in the Union and be a "straw boss" or "group leader."' Later in the morning Cochrane sent for Wolonsky and, again referring to the Union, asked, "How do you think management will take it?" The following then transpired according to Wolonsky's credited and undenied testimony : I told him that an organization of that kind could be of benefit to both sides, to management and to the employees, that both sides would benefit by it and, then, he said-well, also, during that conversation he said, "Well," he says, "you know we can move out of town and you'd lose your job." Clifford It. Stemple, of the shipping department, who had been elected recording secretary of the Local on the night of September 15, was in the shipping office before his shift started the morning of September 16 reading a union booklet which detailed the duties of union officers. When William R. Patterson, in charge of the shipping department, arrived Stemple told him that at the union meeting the night before he (Stemple) had been elected recording secretary and Worley (who also worked under Patterson) had been elected president. He also showed Patterson the union booklet he had been reading. About 9 o'clock that morning, Superintendent Cochrane came to the shipping department where Stemple and Worley were unloading a truck, saluted Stemple with, "How is the recording secretary" and asked him if he could take the union booklet to a "meeting" about the Union into the' front office. That afternoon Cochrane ascertained from Worley that all the plant workers, except one, had signed union cards, and that the one holdout was general maintenanceman Calvin Turner." The same day, Patterson told James Ruse (local union treasurer), according to Ruse's undenied and credited testimony, that management was having a meeting about the employees joining the Steelworkers. President Kaufman and Vice-President Manes were each on a business trip September 14 and 15, but returned on September 16 in time to attend a manage- ment meeting that evening at the plant. Pursuant to instructions from Kaufman at this meeting, Lessing and Cochrane late Thursday night notified 19 union 8 Cochrane, although available, was not called as a witness and did not deny this credited testimony of Geisinger. 9 Wolonsky operated the roll forming machine on the first shift assisted by four other workmen, but was in no sense a supervisor. 10 Patterson substantially corroborated the above testimony of Stemple. As previously found, Cochrane did not testify, and Worley's testimony that he was questioned by Coch- rane about the union membership is credited. ALSIDE, INC. 469 employees that they were laid off, effective September 17, because of lack of material" C. The September 17 discharges President Worley received notice of his layoff about midnight. Thereafter, and very early in the morning of September 17, Worley, accompanied by Geisinger and Petty (both of whom had also received notices) consulted with Oliver J. Lee, international representative of the Steelworkers, about the layoffs, at Lee's home. Lee agreed to go to the Respondent's plant later in the morning. After this consultation with Lee, Worley and his two fellow workers went to the plant arriving there before the first shift normally reported for work. Others who had been laid off also appeared, as did those not laid off and who were reporting for work. These employees found the gate closed through which they ordinarily entered the plant, and behind which they usually parked their cars while at work. In this instance, as a result of the entrance being closed, the employees with cars parked them in the area south of the gate normally used for parking purposes by the office force (who had not yet arrived for work), and congregated outside the gate in front of the office. The gate above referred to is a double iron affair set in the middle of a fence which extends east from the corner of the plant a distance of about 40 feet. The gate normally was open on work days in the daytime and in fact was the only entrance available for trucks or other vehicles. A number of employees testified that when they arrived at the plant the morning of the 17th this gate was locked "with a bicycle lock." Respondent's officials denied that the gate was locked. I find that the gate remained closed a portion of the morning of September 17 and that such closing was unusual. I do not credit the testimony that the gate was locked. There is credible testimony that officials of the Respondent entered the plant that day via the gate, as did trucks. Furthermore, Edward Mills and Frank Verashak working the third shift that morning had no difficulty leaving the plant, mixing with the employees congregated at the fence, and reentering the plant. Therefore, locking the gate as a means of keeping the employees out of the plant would be a futile gesture because employees could walk around the fence and enter the plant, a method of ingress and egress not entirely unused by them. When President Kaufman arrived at the plant shortly after 7 a. in. on Septem- ber 17, Plant Manager Lessing called over the plant's loud-speaker the names of all employees not laid off and asked them to come to work. There was ncr response.32 Shortly thereafter employees, third shift workers, Mills and Vera- shak informed the Respondent that they would not work the first shift (as they had earlier that morning been requested to do), Verashak stating that he would not "take another man's job" and Mills explaining that he had decided to "stick with the boys on the outside.s13 About S : 30 a. in. Kaufman appeared in front of the office and announced that the employees who had failed to report for work that morning as requested were n The employees so notified are listed in footnote 1, supra. 12 Some employees testified that they did not hear the loud-speaker. Others, admitting they heard it, testified that they could not understand what the announcement was. They apparently made no effort to secure clarification. I find it difficult to believe that no one in this group located not over 50 or 60 feet from the entrance could distinguish a loud- speaker announcement at this small plant located in an outlying and presumably quiet area of the city. "This decision on the part of Mills and Verashak was not arrived at until they had talked with the employees at the fence. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all fired. He called their names and told them to come to the office and get their checks. About the same time Kaufman ordered the employees to remove their cars from company property. Myron and Theron Cole were included in the group discharged the morning of September 17 and the first call for their checks. Kauffman told each of them that he was being fired for refusing to report for work that morning. Thereon Cole was the first to be interviewed. According to Theron's credited and uncontroverted testimony Kaufman first asked him if he was "forced to join the Union" ; that it seemed queer that all the employees "but one" joined the Union; that he had no objection to the Union provided the men joined of their own free will, and he "wanted an open shop." Each of the Cole brothers was given his check for the current week at that time, but told that his final pay check and separation notice would not be available until that afternoon. The same procedure was followed with reference to a number of the other discharged employees, Kaufman making it clear in each instance that the employee was discharged for failing to report for work. In some instances, Kaufman made reference to the Union, disparaged the fact that it had been organized without advising him, criticized its leadership, and insisted there would always be an "open shop at Alside." Others, who were not even present at the plant on the morning of the 17th, were-subsequently notified of their discharge as of the 17th of September." In tile meanwhile about 9: 30 or 10 in the morning of September 17, either at the time or shortly after Kaufman began to individually interview the discharged employees, Steelworkers' International Representatives Lee, Katchur, and Mc- Kendrick, arrived at the plant and a conference was arranged with Kaufman in the office building. Worley, Wolonsky, Stemple, and Forward (all local offi- cials) accompanied the international representatives into the office. This com- mittee requested that the Respondent recognize the Steelworkers as the exclusive bargaining agent for the production and maintenance employees and that the laid- off employees be reinstated. This request was refused. Kaufman, although will- ing to talk to Lee, Katchur, and McKendrick as officials of the Steelworkers, stated that lie would have "no truck with" Worley, Wolonsky, Stemple, and Forward, as they were "no longer" employees of the Respondent.'' As a result of this attitude on the part of Kaufman the interview was in the outer office. Kaufman expressed resentment because the plant had been organ- ized "behind his back," stated that he would not permit a union shop in the plant, or have a "kid" who had only been with him 6 weeks telling him how to run his business. Kaufman also stated that the 19 employees had been laid off the previous night because of material shortage and "inefficiency," and as the other 13 employees not so notified had refused that morning "to cooperate" they were discharged, and all could get their final checks and separation slips that afternoon. The conference then broke up.1e 14 It is Kaufman's contention that in the morning as he interviewed the Cole brothers (and some others who had not been laid off) he urged them to return to work. This con- tention is rejebted in view of the credible testimony of the employees involved, the happen- ings earlier in the day above found, and what transpired that morning at the conference with the Steelworkers' representatives, as will hereafter appear. '5 Of the four named, Forward was the only one who had not been laid off the night before. 10 It is Kaufman's testimony that he requested the union committee to let the 13 retained employees report for work, but was informed that none of these employees would cone to work unless all of the laid-off employees were reinstated. This testimony of Kaufman's was not corroborated by any of the other participants in the conference and was denied by them. I do not credit this testimony of Kaufman's as it is inconsistent with Kaufman's ALSIDE, INC. 471 After the failure of the union representatives to get either recognition for the Union or reconsideration on the part of the Respondent of its action in releasing the employees, Kaufman again appeared at the gate and announced that each employee could get his current check by applying at the office that morning and his final check in the afternoon. This procedure continued until noon. There- after, the remaining employees were paid both their current and final checks at the one interview with Kaufman. There is credible and uncontroverted testimony that at these individual interviews Kaufman again stated repeatedly that he had no objection to a union, in the plant but would not stand for a "closed shop." n He told William G. Stump, as well as a number of other employees, that he did not like the way the Union was being organized without his knowledge, or "have a kid" who had only been employed 6 weeks "telling him" how to run the business." There was no production on September 17 after the first shift started that morning and the inference is clear from the record that no rank-and-file employees worked that clay. As above found, Kaufman announced that all employees who, did not report for work were being discharged. Employees Walter Mills and Calvin Turner, however, were not discharged and worked on September 18 and thereafter. Walter Mills had signed a union card, but the card was destroyed prior to September 17. Turner never signed a card. Neither of these employees testified at the instant hearing, but the inference is justified and I find that on September 17 both Walter Mills and Calvin Turner were ready and willing to work, and that they were the only production employees who did offer to work on that day. D. The picketing About 4 in the afternoon of September 17 a majority of the released em- ployees attended a meeting in the Steelworkers' hall in downtown Akron. The action of the Respondent in laying off and discharging practically all the produc- tion and maintenance employees was discussed, and it was decided to establish a 24-hour picket line at the plant in protest against such action by the Respondent. Thereafter, starting from 6 that evening two or three pickets continuously paraded in front of the plant until about October 7, when the picketing was dis- continued. The pickets carried banners reading that the Respondent, (a) "Locked its out, why?" (b) "Refused to bargain," (c) "Unfair: We organized to save our jobs." On Saturday, September 18, 1948, the Respondent attempted to resume pro- duction with the aid of its supervisors and employees Calvin Turner and Walter Mills. On Monday, September 20, the Respondent began hiring replacements. Fourteen new men were engaged during the remainder of September, 39 in the month of October, and 14 during November (the last month for which records were available). Included in this list of new employees, however, were em- ployees Clarence Hamlin, Eugene Athens, and Clarence Stemple reinstated„ attitude heretofore found at the very beginning of the conference that he would have noe "truck" with the Union Local's officials on the committee because they were i1o longer "employees," and one of these local officers, Forward, had not been paid off. Furthermore,. as above found, Kaufman had already announced before the conference started that these employees were discharged. "Other than the request that morning for recognition, there bad been no overtures on the part of the Union to negotiate a contract, and certainly there had been no mention of a closed shop. But as has been previously found, the Respondent knew from questioning workers that all but one of the employees had signed union cards. 18 This was an obvious reference to Local Union President Worley, first employed August 12. s 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respectively, on October 9, October 29, and November 13. By the end of October the Respondent was working 2 full shifts, but because of the large labor turn-over only about 40 production employees were working at any one time. On September 22, the Respondent by action instituted in the Court of Com- mon Pleas, Summit County, Ohio, sought to restrain the picketing. Up to the time of this Report no decision had been announced in the State court case. By stipulation, the transcript of the record made during the several days' hearing in the injunction proceedings was received as an exhibit herein, pri- marily for the purpose of showing activities on the picket line. The record in the injunctive proceeding, as well as evidence received in the instant case, clearly shows that during approximately 3 weeks' time the picket line was main- tained, there was little if any disorder. A few minor incidents happened, such as using an obscene epithet toward Walter Mills for continuing to work for the Respondent after September 17, but no attempt-was made to-molest him or other workers in the plant. Likewise, several trucks were stopped by pickets and the drivers informed of the picketing and the alleged reasons therefor- but no truck drivers were in any way threatened or restrained from entering or leaving the plant. E. Requests for reinstatement and reinstatements O As heretofore found, the union committee conferred with management on 'September 17 and was unsuccessful in its efforts to secure the reinstatement of the employees laid off the previous evening. On September 20, the Steelworkers, by letter, formally and specifically requested that the Respondent reinstate the laid-off and discharged employees.1' The latter part of November, Russell Wells, one of the laid-off employees, filed a written application for a job with the Respondent. Charles Robinson (in the discharged group) applied the first part of December. Neither has been reinstated. On November 21, Joseph Wolonsky (in the laid-off group) applied for but was refused a part-time job. At that time, however, the Respondent, through Personnel Director Holmes, offered Wolonsky his old job on a full-time basis. Wolonsky did not accept the offer2° F. Conclusions as to the unfair labor practices 1. As to the allegations of interference The Respondent, by Superintendent Cochrane's questioning of David John Geisinger on September 15 about the extent of union organization in the plant, Cochrane's inquiries of Russell Wells on September 16 about the union meeting and who were elected as local union officials and his questioning Union President Lawrence Worley, as to the number of employees in the Steelworkers Local, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 21 ID The letter from the Union specifically named all the employees involved, excepting Carl Buterbaugh , Edward Mills , and Ross K. Osborne. The record is obscure on the point, but the failure to include the above three names was apparently an oversight. 20 It Is Wolonsky 's testimony , denied by Holmes, that in offering Wolonsky the part- time job Holmes told him that if he returned he would be "through with the Union." Lacking corroboration, and in view of Holmes ' positive denial that any such condition was laid down, Wolonsky's testimony in the above respect is not credited. 21 Superintendent Cochrane's suggestion to Joseph Wolonsky, vice president of the Local, that the Respondent might not be pleased with the union organization and could move out of town in which event Wolonsky would lose his job, is not found to constitute a violation of Section 8 (a) (1) of the Act in view of the Board ' s holding in the Mylan-Sparta Com- ALSIDE, INC. 473 2. As to the September 16 layoffs The Respondent contends that the 19 layoffs of September 16 were justified because (a) there was a shortage of aluminum and (b) the laid-off employees were inefficient. As to the first contention : The record of monthly shipments of aluminum to the Respondent since first it began production is as follows : January 259,716 pounds, February 111,776, March 323,362, April 439,163, and May 583,897 pounds. In June shipments dropped to 447,686 pounds, but in July the total receipts of aluminum amounted to 616,047 pounds. In August they again dropped to 350,220 while the September total came to 743,018 pounds (of which 266,326 pounds were received prior to September 17). Pounds received in October totaled 1,063,064, but fell to 603,602 in November, the last month for which the records were available. From these records and from the uncontroverted testimony of numerous wit- nesses, it appears that the production of aluminum siding began on a rather small scale in January 1948, and gradually increased thereafter in a reasonably satisfactory manner as supervisors and rank-and-file employees became more proficient and adept in the use of the roll forming and painting machines, except for a hiatus of several weeks in August and early September when the amount of finished siding decreased and its quality deteriorated, because the shortage of aluminum stock forced the Respondent to use rejected stock or poor stock. It is quite true, as contended by the Respondent, that, during this period of temporary shortage in August and early September, the Respondent was some- times hard put to find work for all its 33 production and maintenance employees. However, this shortage of stock did not continue beyond September 13. As above found, 266,326 pounds of aluminum arrived at the plant in September prior to the 17th of that month. Of this amount only 72,019 pounds arrived before September 9. Between the 9th and the 16th, 194,207 pounds were de- livered. From September 14 to September 19 (the week of the layoffs) 219,371 pounds of aluminum were shipped. In fact 98,229 pounds arrived on Friday and Saturday, September 17 and 18. When the layoff notices were given on the night of September 16, the Respondent undoubtedly knew what aluminum was en route because President Kaufman and Vice-President Manes had just that night returned from an eastern trip whose principal objective was (as testified to by Kaufman) to ascertain when shipments of backlog orders of aluminum could be anticipated. The 219,371 pounds of aluminum received during the week of the layoffs was considerably more than a third of the total shipments for any month up to that time. I find, despite the Respondent's contentions, that it had on hand or en route sufficient stock to keep all its employees ade- quately supplied for the work on September 16. Relative to the second contention of the Respondent, that the laid-off employees were inefficient : Kaufman testified that the Respondent's production increased materially in October and November 1948. As above found, for several weeks prior to the middle of September production was low due to a stock shortage. Prior to this shortage from the time manufacturing of siding started in Janu- ary, records of production were broken by the employees every few weeks ; and it was the Respondent's practice during this period as a mark of appreciation for Pliny, etc., 78 NLRB 1144, that "A prophecy that unionization will ultimately lead to lose of employment is not coercive where there is no threat that the Respondent will use its economic power to make its prophecy come true." 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each new record, to entertain the employees with food and drink at a nearby cafe. In short, aside from the several weeks when it was handicapped by lack of stock, the Respondent's entire production history from its inception up to the time of the hearing has been one of consistently increasing production. Furthermore, comparing the output of 33 workers with that of over 40 men, is not of much value in determining the efficiency of the smaller group, especially when, as here appears, the 40-odd workers were using enlarged .22 Appraising the 19 laid-off employees, the record shows that each benefited by periodic pay raises prior to the time of his release. Eugene Athens and Clif- ford R. Stemple were rehired after the picket line had been abandoned, and Joseph Wolonsky was offered his job back in November. Vernon C. McIntyre, originally hired on August 5 as a painter on the first shift, testified credibly that Alfred P. Lehman, in charge of all painting since early July, complimented him on his work and was instrumental in securing for him a 10-cent raise effective September 3; and that a day or two before September 16, Lehman informed McIntyre that he would shortly be "running the paint line" on the second shift." Russell Wells, also laid off for inefficiency, was originally employed on May 17 as a punch-press operator. From about the 1st of July until about September 15 he operated an electric spray gun on the second shift, when he was given the paint inspection job on the first shift. Supervisor Lehman testified that using an electric spray gun to paint corners was harder and more difficult work than inspecting ; and that the inspection job was really a demotion which came about because of the number of rejections from the second shift spraying job. Leh- man's working hours at the plant paralleled those of the important first shift upon which 17 of the 33 production and maintenance workers were employed. He testified that the only opportunity he had to observe Wells' spray machine work was during the short daily period his work overlapped into the second shift; and that Superintendent Cochrane, directly over Wells on the second shift, would know best about Wells' work. As previously found, Cochrane did not testify and there is no corroboration of Lehman's testimony that Wells was in- efficient and was demoted. Contrasting, however, with this testimony of Leh- man is Wells' testimony, not denied and in fact conceded by the Respondent, that approximately a month before his layoff and while operating the electric spray- ing machine he received 2 awards from the Respondent, one of $20 for successfully eliminating scrap when painting corners, and a $5 award for suggesting a method of keeping the electric spraying machine clean. On September 17 when Wells received his final check, Kaufman stated that "there might be a place for [Wells] later on" with the Respondent. During the picketing period Wells asked Foreman Laughlin how "things were going at the shop," and Laughlin replied, "Oh, they are firing great guns. I wish you boys would hurry up and get back so we could get some production out." On October 12 Superintendent Cochrane asked Wells "when he was coming back to work." I find that Wells was competent. The record, as well as Respondent's treatment of others laid off on September 16 indicates that they were not incompetent. Charles Foltz was let go by Kauf- man in spite of the recommendation of Plant Manager Lessing that he be re- tained. On September 17 Kaufman told Richard D. Forward that he "might" 22 An additional roll forming machine installed about the middle of September. s Lehman was not asked and did not deny any of the above -described testimony of Mc- Intyre. Lehman testified that McIntyre , the first 2 weeks of his employment, was not attentive in watching the painting appliances , but that he was "a fair employee" at the time he was released. ALSIDE, INC. 475 reemploy Forward?° Leslie Stites , maintenance man on the first shift , received special commendation in July from Plant Manager Lessing and Superintendent Cochrane for converting a hand-operated paper cutter into a power -operated machine and also for adjusting a troublesome backing machine . There is no evidence that any of the other laid-off employees were incompetent . I therefore reject the contention of the Respondent that the September 16 layoffs were justi- fied because of the inefficiency of the employees involved and find, as contended by the General Counsel and the complainants , that all the September 16 layoffs were discriminatory and for the purpose of discouraging membership or activity in the Steelworkers.25 3. As to the discharges of September 17 There is little controversy as to what actually took place at the plant on Sep- tember 17, but there is dispute as to the conclusions to be drawn from such activities. After President Worley and his two companions had discussed the layoff notices with Steelworkers' Representative Lee in the early morning of September 17, the three employees, before the first shift started, repaired to the plant where they had arranged to meet with Lee later in the day. They were soon joined by other employees who had been laid off, and who came to the plant either out of curiosity to see what was going on, or more likely to get their cur- rent pay checks as Friday, September 17, was payday. Other employees, not laid off, arrived for the purpose of working. However, the gate to the plant proper through which employees normally entered the plant (and behind which gate they usually parked their cars while at work) was closed. As a result, the employees with automobiles parked them outside near the office and all congre- gated in front of the gate. Practically all of the employees who assembled in front of the plant gate, and who were called as witnesses, agreed that the gate was closed, and some of them testified that it was locked with a "bicycle lock." Although Kaufman zi That management was more concerned about union activity in the plant than it was with the productivity of these employees is illustrated by a conversation Superintendent Cochrane had with Charles M. Flesher at a cafe near the plant on September 24. Ac- cording to Flesher's credited testimony, the following transpired : Q. Did Mr. Cochrane have any conversation with you at that time? A. Yes, he did. Q. Will you tell us what was said? A. He says, "How you doing?" And I says, "Not too bad." He says, "What do you think about this union business?" And I said, "It's all right," and he says, "If you knew what they were doing to you, you wouldn't feel that way," and I says, "Well, that's anybody's opinion." a e a a o o a Q. Was any reference made about your job? A. Oh-he asked me if I thought I would get my job back and I said, "Yes, I think I will." Q. Was anything else said? A. No. 25 Manager Lessing testified that the Respondent changed its production methods in the interests of greater efficiency and also reduced its production force to one shift after September 16. It is also noted than on October 1 the Respondent, by letter, advised the State Bureau of Unemployment Compensation that the employees above referred to were separated from the Respondent, "due to a revision in the production methods and the rescheduling of production hours." The record fails to disclose any material change in production methods or hours worked subsequent to the layoffs, but the record does reveal, contrary to the above testimony of Lessing, that actually the Respondent ran two full shifts as soon as it could hire enough new workers to man the two shifts adequately. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted that the gate was closed the first part of the morning of the 17th, he, as well as other executives for the Respondent, denied that the gate was locked. I find the evidence insufficient to support a finding that the gate was in fact locked on September 17. As heretofore indicated , the purpose of such testimony was to substantiate the allegation in the complaint that the employees were in fact locked out of the plant. It would fail in that respect even if found true because locking the gate would not and could not prevent the employees from entering the plant. The gate was in the center of a fence that extended east from the southeast corner of the factory a distance of about 40 feet to the city line. However , the fence ended at that point and did not extend north at right angles so as to effectively inclose the Respondent's property . It was en- tirely feasible and not uncommon for employees to walk around the fence and enter the plant, or to leave the plant without passing through the gate. In fact, on the morning of September 17 third shift workers Edward Mills and Frank Verashak , who were in the plant, walked around this fence to discuss the situa- tion with employees outside the gate-and then returned to the plant , before refusing management 's request that they continue on and work the first shift also that day. No doubt the closed gate and the group congregated in front of it caused some employees to question whether the plant was in fact open for business on the morning of the 17th. But any confusion in that respect was dissipated by the announcement over the loud -speaker, followed by Kaufman 's direct request, that all employees , except those laid off, report immediately on the first shift for work. The employees involved ignored this request, and elected not to report for work at least until their representatives had an opportunity to for- mally protest , to the Respondent against the discriminatory layoffs. In the meantime , the Respondent announced the discharge of all plant employees who had failed to report for work. At the conference with the union representatives, the Respondent refused to reinstate the laid -off workers and reaffirmed that all others who had refused to work were discharged ." Later in the day, during individual interviews President Kaufman made it clear to many of the em- ployees that they were being released because he was displeased with the union organization and its leadership.27 As a result, a picket line was established 26 That the Respondent in notifying the 12 employees that they were discharged actually Intended to Sever their employment and was not engaging in a "strategic maneuver" is evident because , ( a) Charles Robinson was not reinstated on his application in December, (b) all but one of the 12 employees received separation slips subsequent to September 17, and on October 1 the Respondent notified the Ohio Bureau of Unemployment Compensation that these 11 had been discharged , and (c ) Joseph Bixler , the only one in the group who did not receive a separation slip ( and who had previously been excused from reporting for work for personal reasons on September 17) was notified of his discharge on Sep- tember 18 when he called for his check . Furthermore , the Respondent's records show that Bixler, as well as the other 11, was released from employment on September 17. 27 Kaufman testified In general terms that after the conference with the union committee, he called the 12 employees who had not been laid off into his office and asked each one individually if he would not come to work before presenting him with his pay check. Vice-President Manes, who arrived at the plant on September 17th after the conference with the union committee, testified that he was present when Kaufman talked to 7 to 9 of the employees and asked them to go to work . Manes was unable to Identify all these workers by name, but did specify Edward Mills, Frank Verashak, and "one of the Cole boys." As heretofore found , Verashak and Mills rejected management's request that they work on the first shift prior to Manes ' arrival at the plant that morning . The two Cole brothers were interviewed by Kaufman at or before the conference with the union committee . Both testified that Kaufman was alone when he interviewed them. They, as well as other discharged employees who testified as to Interviews with Kaufman that morning, testified in detail as to what was said by Kaufman. None testified that Kauf- ALSIDE, INC. 477 by the employees in front of the plant late in the afternoon of September 17 in protest against the Respondent's action. I find that on September 17, the 12 employees joined other employees in a concerted protest against their discharge and the discriminatory layoffs of the 19 employees , and that the Respondent by discharging the employees who en- gaged therein, has discriminated as to their hire and tenure of employment to discourage membership in a labor organization. 4. As to the picketing activities The Respondent's answer alleges that it did not refuse to reinstate any of the laid-off or discharged employees who requested reinstatement after September 17, but the answer as amended also alleges that , because of misconduct on the picket line, none of these employees are "entitled to reinstatement." In view of my findings heretofore that the complainants have been discriminatorily relieved of their employment by the Respondent , it is necessary to ascertain whether the complainants by their activities on the picket line, have forfeited reinstatement rights. The record herein (including the transcript of testimony in the State court proceedings received as an exhibit) discloses no unlawful activity on the part of the complainants, or any of them, on the picket line. True, trucks were stopped by the pickets as they attempted to enter or leave the plant, and the drivers were urged to respect the picket line. There is no evidence, however, that in any instance was a driver molested or threatened when he insisted on crossing the picket line. In one instance Union President Lawrence Worley and another employee, who apparently were not on picket duty at the time, tried to follow a driver who had entered the plant. The Respondent's guard pulled his gun and profanely ordered them to leave the property. The two employees immediately complied with the order. The second week of the strike picket David John Geisinger addressed Calvin Turner obscenely as he left the plant, but there is no evidence that Geisinger, or any of the other employees, in this instance, or at any other time during the picketing, attempted to molest Turner, or any other employees, or prevented them from entering or leaving the Respond- ent's premises. The record does disclose that the first 2 or 3 days of the picketing a number of the employees, who at the time were not officially on picket duty, congre- gated in front of the plant at or near where the pickets were patrolling, but there was no mass picketing or chain picketing, or intimidatory or coercive conduct by these employees. I find therefore, contrary to the contentious of the Respondent, that the picketing was reasonably orderly, and the complainants committed no acts which would justify the Respondent in refusing to reinstate them. 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 man, during the interview , requested them to go to work . There is credible testimony that especially after the conference with the union committee the employees filed in for their checks indiscriminately and were not at first limited to the non-laid-off employees, as Kaufman 's testimony implies. Furthermore, Kaufman's testimony of what transpired in the individual interviews is inconsistent with his previous action in ordering all cars to be removed from company property as well as his comments and attitude at the meeting as heretofore found. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIIE REMEDY Having found that the Respondent has engaged in unfair labor practices -violating Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that 19 employees were discriminatorily laid off effective September 17, 1948. Two of them, Eugene Athens and Clifford Stemple, have :since been reinstated. All of the rest, with the exception of Joseph Wolonsky, .are entitled to reinstatement and back pay from the date of the discriminatory layoff. Wolonsky was offered and refused reinstatement on November 21, 1948. Be is entitled to back pay only from September 17 to November 21, 1944.-" The other group of 12 employees were immediately discharged on September 17 at the first indication of collective activity, obviously for the purpose of destroying all possibility of effective employee mutual aid and protection in the plant. Under such circumstances the employees affected could only conclude that their return to work had been barred, especially as the September 20 request on the -part of the Union that they be reinstated had apparently been ignored by the Respondent. Their failure to make individual applications for reinstatement ,cannot militate against them.20 In addition to the failure of the Respondent to respond to the September 20 request for reinstatement, discharged employee C. C. Robinson's experience demonstrated to the employees the futility of applying for reinstatement. He was the only one in that group to apply for work, but was not employed 30 It is true that Clarence Hamlin (of this group) was reemployed on October 9, but as he did not testify it can only be concluded, as alleged in the Respondent's answer, that he was returned to work without having requested reinstatement ai As the discharges were absolute the discharged employees are not only entitled to reinstatement, but also to back pay.' It will therefore be recommended that the Respondent reinstate each of the employees listed in Appendix A, attached ]hereto, to his former or substantially equivalent position " and make him whole for any losses incurred by him because of the Respondent's discrimination against shim by payment to him of a sum of money equal to that which he normally za Ohio Fuel Company, 25 NLRB 519 , at 554. a Industrial Cotton Hills, 50 NLRB 855. 22 Robinson 's testimony in this respect is illuminating as to the finality of the discharges. He applied for work in December, although the strike was broken by October 7. Asked why he had not applied sooner, he testified : Well, I didn't think there was much use. Jerry (Kaufman ) told me for absolutively- positively that I was through , as far as he was concerned , or had led me to believe that, and I was always skeptical about that , going back, I mean, but it is true that I thought about it several times , to go back and see Jerry. 81 Hamlin was next to the paint supervisor in responsibility on the first shift prior to September 17. 22 Pinaud, Incorporated, 51 NLRB 235 ; ltelco Corporation, 79 NLRB 759. s3 In accordance with Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible and if such position is no longer in existence then to a substantially equiva- lent position ." The Chase National Bank of The City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. ALSIDE, INC. 479 would have earned from September 17, the effective date of the discrimination, to the date of the Respondent's offer of reinstatement, less his net earnings s'. It will be further recommended that Eugene Athens, Clifford R. Stemple, and Clarence Hamlin, and each of them, be made whole for any loss of earnings, under the same formula, from the date of his layoff or discharge to the date of his reinstatement. Inasmuch as laying off and discharging employees because of union activity or. affiliation, or concerted activity, is one of the most effective methods of defeating the exercise by employees of their right to self-organization,35 there is real danger that the commission of unfair labor practices generally is to be anticipated from Respondent's unlawful conduct in the above respect. It will therefore also be recommended that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise. of the rights guaranteed in Section 7 of the Act 36 Upon the basis of the foregoing findings of fact and upon the entire records in the case, I make the following : CONCLUSIONS OF LAW 1. United Steelworkers of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section & (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Eugene Athens, Clifford R. Stemple, Clarence Hamlin, Joseph Wolonsky, and the em- ployees listed in Appendix A hereof, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, I recommend that the Respondent, Alside, Inc., its officers I agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, C. I. 0., or any other labor organization of its employees, by discriminating in. regard to the hire and tenure of employment or any terms or conditions of employment of its employees ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, C. I. 0., or any other labor organi- zation, to bargain collectively through representatives of their own choosing,. 31 Crossett Lumber, S NLRB 440. 35 N. L. R. B. v. Entwistle Manufacturing Co., 120 P. 2(1 532, 536 (C. A. 4) ; N. L. R. B. V. Automotive Maintenance Machinery Co., 116 F. 2d 350-353 (C. A. 7). 3a May Department Store Co. v. N. L. R. B., 326 U. S. 376; N. L. R. B. v. Express Publish- ing Co., 312 U. S. 426. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 I find will effectuate the policies of the Act: (a) Offer to the employees listed on Appendix A immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges , discharging if necessary employees hired since September 17, 1948; (b) Make whole Eugene Athens , Clifford R. Stemple, Clarence Hamlin, Joseph Wolonsky, and each of the employees listed in Appendix A for any loss of pay he may have suffered by reason of the Respondent 's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his layoff or discharge to the date of his reinstatement of the Respondent 's offer or reinstatement , less his net earnings during said period; (c) Post at its plant in Akron , Ohio, copies of the notice attached to this Inter- mediate Report marked Appendix A. Copies of said notice to be furnished by the Regional Director for the Eighth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent, 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 and other material ; (d) Notify the Regional Director for the Eighth 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 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. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective 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, 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 matters of 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. Proof of service on the other parties of all papers filed with the Board shall be properly 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 ALSIDE, INC. 481 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 5th day of May 1949. J. J. FITZPATRICK, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEELWORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them (and also Eugene Athens, Clifford R. Stemple, Joseph Wolon- sky, and Clarence Hamlin) whole for any loss of pay suffered as a result of the discrimination. Carl Buterbaugh Harold Coler Charles M. Flesher Carl N. Foltz Richard D. Forward David John Geisinger Ronald L. Hollister Alvin Jones William Carl McCabe Robert B. McDonald Robert Petty Leslie Stites William G. Stump Russell L. Wells Lawrence E. Worley, Jr. Joseph Bixier Myron B. Cole Theron B. Cole Robert L. Croft Vernon C. McIntyre Joseph Markovich Donald J. Matticks Edward Mills Ross K. Osborne C. C. Robinson James Ruse Frank Verashak All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. ALSIDE, INC., Employer. fly ---------------------------------------- (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material.