Cinch Manufacturing Corp.

In the Matter Of CINCH MANUFACTURING CORPORATION and BENNIE SCHULTZ, ET AL. Case No. 13-C-2931.-Decided September 21, 1950 DECISION AND ORDER On May 1, 1950, Trial Examiner Horace A. Ruckel issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had engaged and was engaging in certain unfair labor prac- tices and recommending that it take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that Respondent had not engaged in other alleged unfair labor practices and recommended dismissal of the complaint with respect thereto. Thereafter Respondent filed exceptions to the Intermediate Report and a supporting brief. o The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as inconsistent herewith 3 1. We agree with the Trial Examiner that Respondent violated Sec- tion 8 (1) and (3) of the original Act by discharging the nine com- plainants, all of whom were supervisory employees. These acts all occurred before the 1947 amendments. Respondent told four of them when they reported for work at about 10: 30 a. in. on May 28, 1946,4 and a fifth on. the following day,5 that they were "through" and were considered as quitting or resigning for having failed to obey the ulti- Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Mem- hers Reynolds and Styles]. 2 As the record and exceptions and brief fully present the positions of the parties, Re- spondent's request for oral argument is hereby denied. 3 At Respondent 's request, its appearance is hereby corrected to read as follows : Messrs. John R . Nicholson, Charles M. Nisen, and David V. Flynn, of Nicholson & Nisen, Chicago, Ill., for Respondent. 4 Hopp, Reichold, Bennie Schultz, and Henry Schultz. Like the Trial Examiner, we do not credit Evans' testimony that Hopp and Reichold said they did not want to resume work until the following day. 5 Jarosh. 91 NLRB No. 63. 371 917572-51-vol. 91-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matum to report for work by 8 a. in. on May 28. The four others 6 likewise disobeyed the ultimatum, and Respondent admits that it thereupon considered them "through" as well. All but Notardonato refused to obey the ultimatum because of a prior concerted agreement not to cross the existing picket line maintained by the Union on behalf of the nonsupervisory employees. Moreover, Respondent was aware of this reason before making the discharges. Thus, the con- certed nature of the refusal to work was known not only to Supervisor Lodz, but also to Plant Superintendent Miller and Personnel Director Evans, and even to Vice-President and General Manager Wilson, ac- cording to Evans. As for Notardonato, he individually told Respondent before his discharge that he would not report for work until the strike of nonsupervisory employees was over. As we have frequently held, a sympathetic refusal to work, even by supervisory employees, was normally as protected under the original Act as the primary strike itself.' Respondent argues for a different result here because the work which the complainants refused to do, unlike that in any of the cited cases, was for the sole purpose of facilitating resumption of operations upon the impending termination of the strike, and was not in deroga- tion of the strike in any respect. However, at the time of the dis- charges, the strike and the accompanying peaceful picketing were entirely lawful, and Respondent had not yet reached or signed a final agreement with the Union. Accordingly, we would not be justified in removing from the complainants the same protection against dis- charge as the law afforded to the primary strikers. Respondent also argues for a dismissal because some of the com- plainants, if not all of them, were motivated at least in part by indi- divual fears of violence if they were to cross the picket line. But such a motive would not help Respondent, for it would establish that the complainants were to that extent engaging in activities for their ow4-t mutual aid or protection .8 Moreover, as we held in the New York Telephone case cited above, it would be an unfair labor practice for Respondent to discharge the complainants because of its belief that they had engaged in a sympathy strike, "whether or not such belief is well founded." 2. The Trial Examiner inadvertently failed to find, in rejecting Re- spondent's argument that the proviso to Section 10 (b) precluded is- e Cacucciolo, Notardonato, Sienke, and Sloger. Illinois Bell Telephone Company, 88 NLRB 1171; New York Telephone Company,. 89 NLRB 383; Cummer-Graham Company, 90 NLRB 644. 8 Member Reynolds concurs on the ground that the complainants here were motivated at least in part by considerations of self-interest and were therefore entitled to protection. Cf. his dissenting opinion in Cummer-Graham Co., 90 NLRB 644. CINCH MANUFACTURING CORPORATION 373, seance of the complaint herein, that the charge was filed and served on Respondent between the enactment and the.effective date of the amended Act. We so find. 3. We are in disagreement with the Trial Examiner as to the date from which back pay should run. The Trial Examiner fixed it for all nine complainants as "May 27, 1946, the date of Respondent's dis- crimination." However, we are of the opinion, as was the Trial Exam- iner at certain other points in his Intermediate Report, that the com- plainants were then on strike. The record does not persuade us that, absent the discrimination, the four who did not return to the plant on May 28 or 29 would have gone to work until the termination of the strike on June 7, 1946. We shall accordingly adhere to our usual practice 9 and compute back pay only from the date when each com- plainant reported for work or would have done so if he had not been discriminatorily discharged by Respondent. Since the issuance of the Intermediate Report; 'we have adopted a' method of computing back pay different from that prescribed by the Trial Examiner.- Consistent with that new policy, we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof to the date of a proper offer of reinstate- ment. The quarterly periods, hereinafter called "quarters," shall be-' gin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quarter or por- tion thereof, their net earnings,11 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall also order Respondent to make available to the Board upon request payroll and other records tb facilitate the checking of the amount of back pay due.12 ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations' Board hereby orders that Respondent, Cinch Manufacturing Corpo- ration, and its officers, agents, successors, and assigns, shall take the 9 See cases cited in footnote 7 above. 10 F. TV. Woolworth Company, 90 NLRB 289. 11 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where, which would not have been incurred but for the unlawful discrimination, and the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 12 See F. W. Woolworth Company, supra. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following affirmative action, which the Board finds- will effectuate the policies of the Act : (a) Offer to Frank Cacucciolo, Oscar Hopp, Leo Jarosh, Alphonse Notardonato, George Reichold, Bennie Schultz, Henry Schultz, Leo Sienke, and Peter Sloger immediate and, full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole the nine individuals named in the preceding para- graph for any loss of pay that they may have suffered by reason of Respondent's discrimination against them, in the manner above set forth; (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order; (d) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as*it alleges that Respondent violated Section 8 (a) (1) and (3) of the amended Act, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Richard C. Swander, for the General Counsel. Messrs. Charles M. Nisen and John R. Nicholson of Nicholson and Nisen, Chicago, Ill., for Respondent. STATEMENT OF THE CASE Upon a charge filed on June 6, 1946, by Bennie Schultz, an individual, the Gen- eral Counsel of the National Labor Relations Board, herein called respectively the General Counsel' and the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued a complaint dated January 3, 1950, against Cinch Manufacturing Company, herein called Respondent, alleging that Respond- ent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act as amended, 61 Stat. 136, herein called the amended Act. Copies of the complaint, accompa- nied by a notice of hearing, were duly served upon Respondent and Schultz. With respect to the unfair labor practices the complaint alleged, in substance, that Respondent (1) on or about-May 17, 1946, advised its foremen and super- visors, herein referred to as the foremen, that they would be expected, upon notification, to pass through the picket lines of rank-and-file employees currently 1 This designation has particular reference to counsel appearing at the hearing on behalf of the General Counsel. CINCH MANUFACTURING CORPORATION 375 conducting a strike at Respondent's plant, and to work during the strike (2) on or about May 26, 1946, while the strike was still pending, ordered its foremen, including Bennie Schultz, Leo Sienke, Alphonse Notardonato, Frank Cacucciolo, Leo Jarosh, George Riechold, Oscar Hopp, Peter Sloger, and Henry Schultz; to pass through the picket lines and to perform work during the strike, whereupon the above-named individuals engaged in concerted activities for their own mutual aid and protection in that they concertedly determined not to, and did not, pass through the picket lines or work at "strike-breaking" activities during the strike, and (3) on or about May 28, 1946, discharged the named employees, and there- after refused to reinstate them, because of their concerted activities as above described, thereby discouraging such concerted activities as well as membership in the rank-and-file union. On January 25, 1950, Respondent filed an answer, and on February 2 filed an amendment thereto. The answer, as amended, admitted certain allegations of the complaint with respect to the nature of Respondent's business, but denied that Respondent had engaged in any unfair labor practices. As affirmative defences Respondent urged that the discharges complained of took place more than 3 years before the issuance of this complaint,2 that the individuals named are by definition 2 in the amended Act no longer "employees" of Respond- ent, and denied that the Board has jurisdiction of the subject matter. Pursuant to notice, a hearing was held at Chicago, Illinois, from February 7 to 14, 1950, before Horace A. Ruckel, the undersigned Trial Examiner, duly designated by the chief Trial Examiner. The General Counsel and Respondent were duly 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 conclusion of the hearing the undersigned granted a motion by the General Counsel to conform the pleadings to the proof in formal matters, and reserved ruling upon a motion by Respondent to dismiss the complaint and upon a motion by the General Counsel to strike certain parts of Respondent's answer. These motions are disposed of by the recommendations hereinafter made. The parties were advised that they might argue orally before the undersigned and file briefs with him by March 2. Subsequently, this time was extended by the Chief Trial Examiner to April 17. The parties waived oral argument. On April 17, the parties filed briefs. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT . Respondent is an Illinois corporation having its principal office and place of business at Chicago, Illinois, where it is engaged in the manufacture of small metal and plastic assemblies, radio tube sockets, electrical connecting devices, terminal strips, lugs, and other components for the radio, electrical, and auto- motive industries. In the year 1946, during the events herein complained of, Respondent operated four plants in the city of Chicago. Only one of these plants-the George street plant-is involved in these proceedings. In the year 2 Section 10 (a) of the amended Act provides, in part, as follows : Provided, that no complaint shall issue based upon any unfair labor practice oc- curring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. Section 2 (3) of the amended Act. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1949, the operations of all its plants were transferred to and combined in a new .plant on South Homan Avenue, Chicago , where all of Respondent's operations Are now conducted. Respondent in the operation of its business , has continuously caused large quantities of parts and materials used in the manufacture of its finished prod- ucts to be purchased and transported in interstate commerce to its plants, from and through States of the United States other than the State of Illinois. Dur- ing the year 1949 the value of parts and materials so purchased and transported by Respondent was in excess of $250,000 , of which more than $100,000 was shipped to Respondent from points outside the State of Illinois. Respondent in the operation of its business causes, and has continuously caused, large quantities of its finished products to be sold and transported in interstate commerce into and through States of the United States other than the State of Illinois. During the year 1949, the receipts from the sales of such finished prod- ucts were in excess of $1,500,000, of which more than $1,000,000 was received from the sales of products outside the State of Illinois . Respondent admits that it is, and at all relevant times has been, engaged in commerce within the meaning of the Act and the amended Act. II. THE LABOR ORGANIZATION INVOLVED Local 1150, United Electrical, Radio, and Machine Workers of America, C. I. O. (currently known as Local 1150 , United Electrical, Radio, and Machine Work- ers of America ), herein called the Union , is and at all times material herein has been, a labor organization admitting nonsupervisory employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES 1. Background On April 6, 1946, following the breakdown of contract renewal negotiations between Respondent and the Union , Respondent's nonsupervisory employees went on strike and picketed Respondent 's plants in Chicago. On the day previ- ous to the strike, when it was apparent that it was imminent, Respondent in- formed the foremen in all its plants that the plants would be shut down during the strike and no production attempted, and that they were not to report for .work until called, but that they would continue to be paid their full wages, in- cluding normal overtime for Saturday work. The strike was not attended by any violence or threats of violence , and the managerial personnel and office workers, from the first, entered the plant at will. Each Tuesday during the strike vari- ous foremen went through the picket lines to Respondent's office to collect their wages. Toward the end of April negotiations were reopened between Respondent and the Union , and several meetings were held of representatives of the two parties. By May 20, they were in agreement as to the terms of a contract , excepting a union-shop demand. By June 7, complete agreement was reached and a con- tract signed . Respondent resumed plant operations the same day. 2. The Graemere meeting ; Vice-President Wilson's speech On about May 17, when it had become apparent that substantial progress was being made toward an agreement , Respondent's officials called its foremen to a meeting at the Graemere hotel, where Cary Wilson , Respondent's vice president and general manager, addressed them. Wilson, who had just come from a meet- CINCH MANUFACTURING CORPORATION 377 ing with union representatives, and so announced, in substance told the gathering that he was optimistic about reaching an agreement with the Union, that the end of the "strike was not far off, and that, upon call, the foremen and supervisors would be expected to report to the plant a few days before the end of the strike to clean it up and ready it for production. To this much of Wilson's speech there is no substantial conflict in the evidence. Witnesses called by the General Counsel, however, including most of the fore- men named in the complaint, testified uniformly that Wilson went on to state that Respondent was losing money because of the strike, that Respondent was "going to start doing something," and that the foremen might be called upon to "get on the three hundred or the four hundred line." This reference, if made, would indicate that some production work might be attempted, since these were 2 lines on which Respondent assembled plugs and sockets. Wilson testified, and in this he was supported by Fred Barrett, Respondent's attorney, who also addressed the meeting,' Harry Miller, superintendent of the George Street plant, Arthur Peters, superintendent of all the plants, George Hart, general foreman of the George street plant, Ray Evans; personnel director at George street, and others, all of whom denied that Wilson said anything concerning the 300 or 400 line, or anything else about doing production work, and testified that he referred only to "clean-up" work and the preparation of work schedules, so that when the strike was over actual production might go ahead with a minimum loss of time. There is no question in the undersigned's mind that the witnesses called by the General Counsel misunderstood these alleged remarks of Wilson. Respondent, from the first day of the strike, adopted the policy of attempting no production whatsoever during the strike, and had so announced to its supervisory employees. It was well known to both them and the strikers, and had been consistently fol- lowed during the month preceding the Graemere meeting. There appears to be no reason why Respondent, on May 17, should have announced the adoption of a different and contrary policy, and strong reasons why it should not. By. May 17 Respondent and the Union had resumed negotiations. Agreement on a contract and the end of the strike were both in prospect. For Respondent on this date to reverse its policy and announce that it would attempt to operate its assembly lines would have been to throw the impending settlement with the Union into the air and risk prolonging the strike. Moreover, as will later appear, when the foremen were called back on May 27, no production was in fact undertaken, and the pickets passed returning foremen and supervisors into the plant with- out opposition, in obvious realization that Respondent did not intend to engage in production The undersigned finds that Wilson spoke substantially as testified to by Re- ;5pondent's witnesses, and that the foremen and supervisors present, including those named in the complaint,` understood or should have understood that if 4 Barrett 's remarks were confined principally to an account of Respondent 's arrangements with Captain Barnes, of the labor detail of the Chicago police, to provide police protection to returning supervisory employees , and to reassuring them that they had nothing to fear from the pickets. 5 Although Respondent employed only one woman as a supervisor at the George street plant, a number of them were employed at the other plants . All women supervisors were excluded from Respondent's call to work, additional evidence that it was intended to do only clean -up work. 9 Bennie Schultz was foreman of the shipping room ; Sienke, foreman of the toolroomm; Notardonato , foreman in the barrier assembly department ; Hopp, a supervisor in the ship- ping room :; Cacucciold, supervisor ' in the ' barrier assembly department ; Jarosh and 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and when they were called to the plant prior to the end of the strike it would not be to do actual production work on the assembly lines, but only to clean up the plant and make it ready for production. 3. Concerted activities of the foremen (a) Impromptu discussion on Homan avenue Following the Graemere meeting, about a dozen of the George street foremen, including those named in the complaint with the exception of Jarosh, walked down Homan avenue together and paused a half block or so from the hotel to discuss Wilson's speech. All or most of them expressed reluctance to go into the plant before the termination of the strike, giving various reasons such as that to do so would be "scabbing," that, as supervisory employees, they should not be expected to do "clean-up" work, most of which was normally done by janitors,' and that they might be set upon by pickets. The undersigned does not find it necessary or profitable to attempt to allocate to the particular individual the exact words he used or the precise reasons for his reluctance to agree with Wilson's plan.' It is clear that their reasons were mixed, and probable that all the reasons mentioned were present in the mind of each to a greater or less degree. While certain ones were moved primarily by a dislike of doing any work other than that which they normally performed, others were influenced by the thought that to do the work of any kind, whether production work or merely clean-up work preparatory to production, would in effect militate against the interests of the strikers ; and some of them, no doubt, wished to avoid the possibility of physical contact with the pickets; In any event, the foremen came to an understanding that if and when they were called to work before the termination of the strike, they would meet at the corner of Elston street and Western avenue, a block from the plant, before entering. (b) The foremen are called to the plant; nature of the work required In the afternoon of Sunday, May 26, 1946, Wilson directed Evans, Respondent's personnel director, to get in touch with the foremen and have them report at the George Street plant the following morning at staggered intervals between 7 and 8 o'clock? Evans, in accordance with his instructions, called all the male foremen and supervisors, including the 24 employed at the George street plant30 Reichold, supervisors in the center assembly room ; Harry Schultz, supervisor of machine maintenance; and Sloger, supervisor of the receiving room. The supervisors were in the rank of management just below the foremen, to whom they were responsible. ° The janitors were included among the strikers. Respondent contends that the subsequent decision of these employees not to report for work when called was not a collective decision but that of individuals acting from disparate motives. It is hereinafter found that these activities were concerted, however motivated. 9 The General Counsel contends, in effect, that the staggering of the hours of reporting for work was for the purpose of making it difficult for the foremen to meet and collectively withhold their services, thus discouraging their collective action. There is no evidence to support this. The record shows on the contrary that Respondent adopted this plan upon the recommendation of Captain Barnes for the purpose of minimizing the possibility of clashes on the picket line. io There were at this time 25 foremen.and supervisors at this plant, of whom 1 was a woman. Of these 24, 1 was sick. Of the remaining 23, 14 entered the plant and 9- those named in the complaint-did not. The defections were confined entirely to the George street plant. The foremen at the other 2 plants, all of whom reported for work, are not involved in these proceedings. The foremen at the other plants were ordered to report to work at the George Street plant, rather than their own, and this plant was desig- CINCH MANUFACTURING CORPORATION 379 The two Schultzes, Sienke and Jarosh, in response to Evans' call,11 said they would be at the pant on the following morning at the hour assigned them. None of the others flatly refused. Some, however, asked Evans if the strike was over, and when told that it was not stated, in effect, that they did not want to or were afraid to come through the picket line. Evans reminded these of the police protection which had been arranged for, and reassured them. Most of Respondent's supervisory employees reported for work and were assigned to sweeping, painting, and picking up, work usually done by maintenance employees, and to washing windows and lights, and cleaning floors and benches, normally done by janitors and service employees. Some paper work was done, and in the toolroom some dies were inspected and some minor repairs of dies made. No actual production or assembly work was attempted. On the following Wednesday, May 29, when good progress had been made in readying the George Street plant, the .Van Buren Street foremen, together with a few from George Street, were transferred to the Van Buren Street plant where they were set to similar work. ' (c) Further concerted .action of the foremen ; Respondent acquires knowledge of it Instead of reporting at the George street plant on Monday morning, May 27, the- nine foremen and supervisors named in the complaint, with the exception of Notardonato, met on the corner of Elston and Western Avenue, as agreed upon during their conversation on Homan Avenue following the Graemere meeting. They discussed the. situation at the plant, expressing to one another their various views and attitudes as they had done 10 days previously on Homan Avenue. The consensus was that they would not go into the plant so long as the picket line was in effect. Sometime after 9 o'clock, Waldemer Lodz, whom Wilson referred to while testifying as "more or less" the production manager," upon hearing that a number of foremen were congregated at Elston and Western, walked down to the corner and engaged them in conversation. Lodz asked the group why they had not reported for work and was told that they were not going through the picket lines before the strike was settled, some stating that they were afraid to do so. About 11 o'clock, after Lodz had left, the group broke up but not before agreeing to meet at the same place on Wednesday morning if they were again called to the plant. Lodz, on returning to the plant, reported his conversation with the foremen to Miller, plant manager. Hated as the first to be readied for production because Captain Barnes advised Respondent that his men were better able to police that plant that the others. 11 Respondent 's alleged reliance on the statements of these foremen as part of the claimed justification for their subsequent discharge is hereinafter discussed. 11 Lodz's supervisory duties are in dispute , Respondent contending that he was nothing more than an "expeditor" of customers' orders, without actual supervisory authority over production workers. Wilson testified however, that Lodz "ran the 300 and 400 and various types of connectors," and that by this he meant that lie gave the production foremen over these lines information as to what parts were ordered by the customer, and would "tell the foremen they wanted these parts made." Other testimony shows that Lodz could direct that priority be given one order over another. He was paid a monthly salary of $425. The undersigned finds that Lodz was a supervisor within the meaning of the Act, with authority to bind Respondent. The question is largely academic, however, so far as notice to Respondent of the collective activities of the 9 foremen is concerned , since Lodz subsequently relayed his conversation with the group to Miller, superintendent of the George street plant . Respondent was in the possession of this knowledge when it dis- charged those individuals named in the complaint. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lodz denied while testifying that anyone acted as a spokesman for the group in question, or referred to any collective decision having been made, and from this Respondent argues that the foremen concerned were acting as individuals -rather than concertedly as a group. This contention is hereinafter considered. (d) Continued refusal of foremen to report for work; their discharge During the morning of May 27, it came to Wilson's attention through Evans, via Wilson, via Lodz, that certain foremen and supervisors had not come to work as ordered, and he reported this fact to Lester Tarr, Respondent's president, express- ing the view that the men were afraid to cross the picket lines. Tarr gave it as his opinion that they might not have fully understood what was expected of them in the way of work, and directed Wilson to have Evans get in touch with the men again that evening and order them to report to the plant on Tuesday. Tarr declared that if they did not do so it would be concluded that they did not wish to work any longer for Respondent, and' their " resignations" should be accepted. Wilson conveyed these orders to Evans, with the injunction that the men should be told that they must report not later than 8 o'clock the following morning. That evening Evans telephoned those of the nine' foremen who had telephones. His calls met with a mixed reception. Evans admitted that Sienke asked if the strike was over, and when told that it was not, asked Evans if he was trying to make a "strikebreaker" of him, and Evans told him that if that was his attitude his "resignation" was accepted ; that Notardonato told him that he would not come in until the strike was over, and that he, Evans, replied that Respondent would have to "scratch him off (its) list" ; that Sloger, whom Evans did not reach on the telephone until Tuesday morning, asked him if Respondent was trying to make a "fink" out of him, and Evans told him that his resignation would be accepted. Evans testified that Cacucciolo, who was not called as a witness, asked if the strike was over, and when Evans replied in the negative, said that he was afraid of "trouble" and would not cross the picket line. Evans was unable to reach Jarosh personally but left a message for him. These five employees did not report at the plant on Tuesday, as ordered. Evans reached Bennie Schultz on the telephone on Tuesday morning, about 7 o'clock. Evans testified that Schultz stated that he had just got in and did not know whether he could be, at the plant by 8 o'clock, whereupon Evans told him if he was "going to take that .attitude" Evans would have to accept his resignation. Schultz's testimony did not differ materially from that of Evans. Evans was unable to reach Hopp directly, but left word for him to report by 8 o'clock. Reichold asked Evans if the strike was over, and when told that it was not, was told, according to Evans that if he did not follow instructions his resignation was therewith accepted. Evans, unable to reach Henry Schultz on the telephone, sent him a telegram. On Tuesday morning, Henry Schultz, Ben Schultz, Oscar Hopp, and George Reichold arrived at a restaurant opposite the office entrance to the plant where they discussed the situation and decided not to enter. Later, Pat Amato, presi- dent of the Union, approached them and told them to go in if they wished. After further consultation, and at a time which they did not definitely fix while. testify- ing, but which Evans fixed as 10: 30 or 10: 45, and which was clearly after S o'clock, they entered the plant office.. Evans asked them, according to his testi- mony, what they wanted and the two Schultzes replied that they were there to go to work, Reichold and Hopp stating that they did not want to resume work until the following day. Evans told them, according to his testimony, that they were "through" because they had not reported for work on Monday and were late in CINCH MANUFACTURING CORPORATION 381 reporting on Tuesday. The testimony of the four men is that Evans greeted them with the question as to whether they were there to go to work. The undersigned finds it unnecessary to resolve this contradiction. It is not disputed that Evans, after initially greeting the men and being told that they were willing to go to work, left them and asked Tarr and Wilson if the instructions to discharge those who did not report by 8 o'clock on Tuesday, still stood. He was told that they did, and- that the men were discharged. Evans then returned to his own office and confirmed the discharge. Jarosh, whom Evans had been unable to reach personally on Monday night or Tuesday morning, and who seems to have been temporarily out of contact with his fellow foremen, came back to Elston and Western avenues on Wednes- day morning as had been agreed. There he met Sienke and Hopp who told him they had been discharged. Jarosh then reported to the plant office and asked Evans if the order of discharge applied to him, and Evans said that it did. Contentions and Conclusions Respondent advances three principal contentions in support of its motion to dismiss the complaint (1) that the foremen named in the complaint were not' acting in concert, but as individuals, in not reporting for work when summoned by Respondent, (2) that, assuming concerted action, Respondent had no ade- quate notice or knowledge of it, and ( 3) assuming the first two, Respondent nevertheless could properly discharge them for refusal to do the type of work required of them. These contentions must all be decided adversely to Respondent. First, there is abundant evidence that the employees in question were acting in concert. The concert of action began on May 17, 1946, upon the breakup of the Graemere meeting. Wilson's speech, however misunderstood or misinter- preted, was the subject of discussion among the foremen. Granted that they advanced different reasons for their determination not to enter the plant before the termination of the strike, a common decision was reached-to meet on the corner of Elston Street and Western Avenue if and when summoned for work, to discuss the situation further. The discussion of the group's course of action was continued on May 27, at the appointed place. It may be granted that the same diverse motives actuated the men on this occasion, some objecting to en- tering the plant on the ground that to do so would be "strikebreaking" and would render them "finks," others expressing reluctance to do work different. from that which they ordinarily did, and still others being moved principally if not solely by fear of physical encounters with the pickets. Nevertheless, their decision was again a joint one-not to enter the plant while the strike was on. They became strikers. Respondent, in its brief, urges that refusal to, report for work based solely upon fear of physical harm in going through a picket line, is not a concerted, activity protected by the Act. It argues, with some persuasiveness, that em- ployees who refuse to go through a picket line because of such a hazard can hardly be said to be acting in support of the strikers, but cites no Board cases. In the New York Telephone case,°a decided on April 13, 1950, subsequent to a; New York Telephone Company, 89 NLRB 383. In that case one employee, a super- visor, refused to cross a rank-and-file picket line and was discharged, the employer con- tending that she was motivated only by fear of physical harm. The Board found, as a fact, that the employee acted on principle, that the employer knew it, and held that the employee, by her refusal, thereby joined in the concerted activities of the striking em- ployees, and was protected against discharge in so doing. The Board did not indicate what its holding would have been had it found the supervisor influenced only by fear. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the drafting of Respondent's brief, concert of action was held to exist between. one individual supervisor and the rank-and-file strikers. In the case at bar the concert was not only between a group of supervisory employees and the strikers, but among the supervisory employees themselves. Whatever their motives as individuals they became merged in the group motive, once a decision was made. to act as a group" Second, Respondent had notice that its recalcitrant foremen were acting in concert, and that their concerted activities, in part at least, were related to the :interest of the strikers. Lodz observed their group action on May 27 on the corner of Elston and Western, where he was told by some of the group that they would not go to work so long as there was a picket line," without reference to any element of physical danger. Lodz, found to be a supervisory employee himself, reported his conversation to Wilson, who reported it to Evans, who reported it to Tarr. If there remained any doubt in the minds of Respondent's officials as to what motivated the foremen in question, it should have been removed by Evans' telephone conversations that evening and the next morning. As has been found, several of the foremen gave Evans as their reasons for not reporting for work, that to do so would be "strikebreaking," and would make them "finks." Respond- ent had still further notice of the concerted activities of those named in the complaint when on Tuesday, for the second day in a row, they failed to report to the plant at the time stipulated. The undersigned does not believe that Respond- ent at the time it discharged the employees named in the complaint could have reasonably believed that they were acting as so many individuals, fortuitously and for unrelated reasons. Respondent's further contention-that the foremen. were not called upon to do actual production work, but work which did not compete with the work done ,by its nonsupervisory' employees and that hence their concerted activities were not protected by the Act-though perhaps persuasive as a matter of logic is without foundation in the decisions. Under the original Act by which the instant case is governed, supervisory employees were "employees" by definition and, like other employees, could go on strike for and reason whatsoever and be protected against discharge. Exceptions to this rule were enunciated by the Board in cases where the concerted activities violated property" or contract17 rights of the employer, or which were designed to compel illegal conduct by him," 14 The Board in Carnegie-Illinois Steel Corporation (84 NLRB 851) recognized that the 89 supervisors who did not report for work when ordered were motivated by diverse reasons among them adherence to a strike policy statement of the Foremen's Association of Amer- ica not to "scab" by performing nonsupervisory work, dissatisfaction with living condi- tions in the plant, and disinclination for personal or family reasons to stay in the plant 24 hours a day. The Board found the ensuing discharges justified on other grounds peculiar to that ease. 15 Taken literally, and there seems to be no reason for taking it otherwise, "as long as there is a picket line" means "as long as there is any kind of a picket line," no matter how peaceful or how unresisting to those seeking to cross it. In short, in the minds of those who used this expression, it would seem that it was not the attitude of the pickets which was the deterrent, but the principle of observing a picket line. As has been found, no violence attended the strike and there was, in fact, no attempt made to keep the supervisory employees out of the plant. 10 N. L. It. B. v. Fansteel Metallurgical Corp., 306 U. S. 240 ; N. L. R. B. v. Clinchfleld Coal Corp., 145 F. 2d 66 (C. A. 4). 17N. L. It. B. v. Sands rf fg. Co., 306 U. S. 332; Hazel-Atlas Glass Co. v. N. L. R. B., 127 F. 2d 109 (C. A. 4) ; United Biscuit Co. v. N. L. It. B., 128 F. 2d 771 (C. A. 7) ; Scullin Steel-Co., 65 NLRB 1294, Fafnir Bearing Co., 73 NLRB 1008; National Electric Prod- ucts Corp., 80 NLRB 995. 1B American News Co., Inc., 55 NLRB 1302. CINCH MANUFACTURING CORPORATION! 383 or which were otherwise contrary to law ." The Carnegie-Illinois Steel case supra, extended the area of unprotected concerted activity to cover a situation where the work of supervisors in a strike situation was essential to protect the employer's property against almost irreparable damage .2° None of these cases is applicable here. In particular, it is not contended that the work the foremen were summoned to do was necessary to protect Respondent 's property from harm, as in the Carnegie: case. The only loss which Respondent might have sustained had it waited to call its foremen until the strike was over, was eco- nomic. Most strikes lead to economic loss, and such loss as Respondent sustained by failure of nine foremen to engage in cleaning up the plant and readying it for production was no different in kind from the loss it sustained as the result of the rank-and-file strike. The undersigned finds Respondent's third principal defense to be equally void of merit. Certain other defenses of Respondent remain to be considered . Its argument that the proviso to Section 10 (b) of the amended Act 21 deprives the Board of jurisdiction in this matter has been considered and overruled by the courts." Its argument directed to delay in issuing the complaint and latches has been. disposed of by the Board 23 Its objection to the form of the charge and notice thereof has also been rejected as a defense .24 Respondent's motions to dismiss on these grounds must be, and are, denied.n The undersigned concludes and finds that Respondent , by discharging on May 27, 1946, the employees named in the complaint , violated Section 8 (3) of the Act, and thereby interferred with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in Section III, above , occurring in connection with the operations of 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that 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. As supervisory employees are, not pro- 19 Southern S. S. Co. v. N . L. It. B., 316 U. S . 31; N. L. R. B. v. Perfect Circle Co., 162 F. 2d 556 ( C. A. 7) ; N. L . It. B. v. Indiana Desk Co., 149 F. 2d 987 ( C. A. 7). 20 Cf. Illinois Bell Telephone Co., 88 NLRB 1171. 21 Section 10 (b) reads , in part, as follows : "Provided, that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made...." 22 Itasca Cotton Mfg . Co., 179 F. 2d 504 (C . A. 5), enforcing 79 NLRB 1442 ; Vanette Hosiery Mills, 179 F. 2d 504 ( C. A. 5), enforcing 80 NLRB 1116. 23 Agar Packing and Provisions Co., 81 NLRB 1262 ; Olin Industries, 86 NLRB 203. 24 Cathey Lumber Company, 86 NLRB 157. 2S Respondent also relies on Greater New York Broadcasting Co., 48 NLRB 720, and, Carnegie-Illinois, supra, in discharging the two Schultzes , Sienke and Jarosh who told Evans on May 26 that they would report for work. The undersigned finds no merit in this defense . In the cases cited on this point the employer 's right to rely upon such assurances depends for its rationale upon the peculiarly vulnerable nature of the employer's opera- tion . Absent such a situation , the rationale is inapplicable. Moreover, Respondent con- tended that Sienke was not discharged , but quit voluntarily. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tected by the amended Act, the undersigned will omit the usual cease and desist order and_ recommend only that Respondent reinstate the complainants with back pay.28 It has been found that Respondent discharged Bennie Schultz, Leo Sienke, Alphonse Notardonato, Frank Cacucciolo, Leo Jarosh, George Reichold, Oscar' Hopp, Peter Sloger, and Henry Schultz because they engaged in concerted activi- , ties. It will therefore be recommended that Respondent offer these employees immediate and full reinstatement to their former or substantially equivalent positions 27 without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount of wages he would have earned from May 27, 1946, the date of their discharge, to the date of the offer of reinstatement, 28 less his net earnings 2° during said period. Upon the basis of the foregoing finding of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Local 1150, United Electrical, Radio, and Machine Workers of America, C. I. 0., is 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 Bennie Schultz, Leo Sienke, Alphonse Notardonato, Frank Cacucciolo, Leo Jarosh, George Reichold, Oscar Hopp, Peter Sloger, and Henry Schultz, thereby dis- couraging membership in a labor. organization, Respondent has engaged in un- fair labor practices within the meaning of Section 8 (3) of the Act. 3. By such discrimination Respondent interfered with, restrained; and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are under labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] 18 Republic Steel Corporation, 77 NLRB 1107. n In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former. position when- ever possible and if such position is no longer in existence, then to a substantially equivalent position." See: Chase National Bank of the City of New York, etc., 65 NLRB 827. 21 See : Crossett Lumber Company, 8 NLRB 440, 497-498. m See : Republic Steel Corporation ( Upson Division ), 77 NLRB 1107, and Universal Camera Corporation, 79 NLRB 379, enforced 179 F. 2d 749 (C. A. 2).