National Die Casting Co.

NATIONAL DIE CASTING COMPANY 845 As part of its investigation of compliance, the Board will, of course, consider any relevant information brought to its attention. All information submitted by Respondent in this case was consid- ered by the Board before it made its determination that the Union. was in compliance with Section 9 (h) of the Act. Turning to Respondent's request which was denied by the Regional Director, while no party is entitled as a matter of right to such infor- mation, the Board's policy is to have its agents release to interested parties, under proper safeguards, the names of designated union offi- cers and of persons who have filed the required affidavits. Because Respondent failed to obtain this desired information, whatever the reason, its request will be referred to the Regional Director for ac- tion in accordance with the Board's policy. If Respondent, after it has received the information which it desires, brings to the Board's administrative attention any pertinent additional information con- cerning the Union's compliance status, the Board will, of course, con- sider further the question of compliance in the light of such new matter. The Union's motion to strike Respondent's motion from the files is without merit. IT IS IIEREBY ORDERED that Respondent's motion for reconsidera- tion be, and it hereby is, desired; that Respondent's motion to strike the above quoted portion of footnote 4 of the Decision be, and it hereby is, granted; and that the Union's motion to strike Respondent's mo- tion from the files be, and it hereby is, denied. 15, 1951 ) ; Vulcan Forgmg Company, 85 NLRB 621 , reversed on other grounds 188 P 2d 927 (C. A 6, March 23, 1951) , Ann Arbor Press, 85 NLRB 28, enforced as modified 188 P 2d 917 (C A 6, March 25, 1951) ; Greensboro Coca Cola Bottling Company, 82 NLRB 67, entorced 180 F 2d 840 (C A 4) Cf N L R B v Highland Park Mfg Co, 184 U S 98, decided May 14, 1951 (28 LRRM 2083) NATIONAL DIE CASTING COMPANY and CHICAGO AMALGAMATED LOCAL 758, INTERNATIONAL UNION, MINE, MILL AND SMELTER WORKERS. Case No. 13-CA-370. May 05, 1951 Decision and Order On January 12, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain un- fair labor practices and, recommending, that it cease and desist there- from and take certain affirmative action, as set forth in the copy of 94 NLRB No. 130 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. In addition, the Respondent requested oral argument which is hereby denied as the record and brief, in our opinion, adequately present the issues and positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.2 The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications.3 1. The Trial Examiner found that the Respondent discriminatorily failed to recall Obermeyer after the general layoff of April 28, 1949. We do not agree, for we are unable to accept the Trial Examiner's preliminary finding that the Respondent made no genuine effort to recall Obermeyer. In,support of this finding, the Trial Examiner stated that General Foreman Lindbloom testified that he went "to some address" which he couldn't recall, but was unable to contact anyone who knew Obermeyer. According to the record, however, Lind- bloom's testimony as to the address he visited was not as vague as it appears in the Intermediate Report. Lindbloom said that he went to an address "on Western Avenue just north of Armitage on the west side of Western, I don't recall the exact address, . . ." where he had visited 7 or 8 months before the layoff to leave a message with Ober- meyer's wife. Lindbloom subsequently gave the exact address. The Trial Examiner also attached controlling significance to the fact that the Respondent did not seek to reach Obermeyer at the "home address given by him as a witness," which also appeared in his personnel file. However, the record shows that this particular address was entered in his file in 1941, when he was first employed, and that his file contained 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Reynolds and Murdock]. 2 The Trial Examiner at the hearing was Josef L Hektoen , now deceased. C. W. Whittemore was duly designated by the Chief Trial Examiner to prepare the Intermediate Report in this case. 8 The Intermediate Report contains certain inadvertances, none of which affects the Trial Examiner 's ultimate conclusions , or our concurrence therein. Accordingly, we note the following corrections : ( 1) The Trial Examiner states that the Respondent 's counsel spoke to a Board agent on October 10, 1949, the record shows that this occurred on November 7, 1949 ; ( 2) according to the record, Foreman Lindbloom testified that Tincher, who was hired as a machine operator and engaged in filing operations , "wasn't especially efficient" as a filer. The Trial Examiner referred such characterization to the machine operation . In addition , we find it unnecessary to rely on any inferences drawn by the Trial Examiner from the Respondent 's failure to assert all of its affirmative defenses in its answer to the complaint NATIONAL DIE CASTING COMPANY 847 subsequent address changes in 1042, 1946, and 1948-the latter one being the above-mentioned Western Avenue. Moreover, Obermeyer failed, as requested at the time of the layoff, to advise the Respondent of any subsequent change of address. We are of the opinion that under the circumstances the Respondent made reasonable efforts to recall Obermeyer and would have done so had it been able to locate him. We shall therefore dismiss the 8 (a). (3) allegation of the complaint concerning Obermeyer. 2. The Trial Examiner found, and we agree, that the Respondent also discriminatorily refused to recall five other employees, all of whom were members of the Union's shop committee that met with the Respondent concerning contract negotiations, grievances, and other conditions of employment. Having found that the Respondent's re- peated refusals to negotiate a new contract manifested its clear intent to cease dealing with the Union and thereby expressed antipathy toward that organization, the Trial Examiner concluded that the April 28 layoff was used by the Respondent as an opportunity and a pretext of ridding the plant of union leaders 4 Moreover, in apprais- ing the Respondent's motive, it is significant that on the day of the layoff, there were heated discussions between the members of the shop committee and the Respondent concerning the retention of the com- mittee members during the layoff period. As to two employees, Peter Nardi and George Fulk, the Respondent contended that they were not recalled because of their alleged viola- tion of a no-strike clause contained in an existing contract at the time- of the layoff. We agree with the Trial Examiner's rejection of this, argument for the reason that no credible evidence was adduced to show- that any strike occurred. There may have been some decrease in- production on the last day of work, but such was the natural con- comitant of the impending layoff and not the result of any deliberate act by Nardi and Fulk to interfere with production. The abortive, attempt of these employees to persuade the toolroom employees to refuse to come to work on the day following the layoff was not, if only- because it was unsuccessful, violative of the contract. The Respondent also contended that it refused to recall three other- employees, Parenti, Tincher, and Ira Fulk, because they were not as capable or as versatile in their duties as those who were rehired. The record shows that as of April 28, 1949, the date of the layoff, the Respondent had 71 production employees; and by October 1949, its production force had been increased to 131 employees. As pointed out by the Trial Examiner, it is reasonable to believe that Parenti, 4 Inasmuch as the complaint only alleges a discriminatory failure to recall the laid-off- employees, we do not adopt the Trial Examiner's finding that these employees were "in effect" constructively discharged It is clear, however, that the basis for this finding also establishes a discriminatory failure to recall. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tincher, and Ira Fulk, were at least as efficient as the new and untried employees who were hired after production was resumed.5 3. In view of his finding that the five laid-off employees were con- structively discharged on April 28, 1951, the Trial Examiner recom- mended that they be awarded back pay from that date. As we have found, however, as alleged in the complaint, that these employees were discriminated against by not being recalled, we shall order the Respondent to make them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of a sum of money equal to that which he would have earned as wages from the date each would normally have been rehired, absent the discrimination, to the date of the Respondent's offer of reinstate- ment. Order Upon the basis of the above findings of fact and 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, National Die Casting Company, Lincoln- wood, Illinois, its officers , agents, successors , and assigns , shall: 1. Cease and desist from : (a) Discouraging membership in Chicago Amalgamated Local 758, International Union, Mine, Mill and Smelter Workers, or in any other labor organization of its employees by discriminatorily refusing to reemploy them, or by discriminating in any other manner in regard to their hire, tenure of employment, or in any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Chicago Amalgamated Local 758, International Union, Mine, Mill and Smelter Workers, or any other labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in 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 membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Peter Nardi, George Fulk, Ira Fulk, Eugene Parenti, and Roy Tmcher, immediate and full reinstatement to their former See H & H Manufacturing Company, Inc, 87 NLRB 1373, 1376 NATIONAL DIE CASTING COMPANY 849 or substantially equivalent positions without prejudice to their sen- iority and other rights and privileges. (b) Make whole the five named employees in the manner set forth in the section of the Intermediate Report entituled "The Remedy" as modified herein. (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 rec- ords necessary to analyze the amounts of back pay due. (d) Post at its plant in Lincolnwood, Illinois, copies of the notice attached hereto as Appendix A.6 Copies of such notice, to be fur nished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's representative, be posted by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT Is EuRTUER ORDERED that the complaint, insofar as it alleges that the Respondent has discriminated against Thomas Obermeyer, How- ard Sullivan, and Naomi Gleistein, be, and it hereby is, dismissed. 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; WE WILL NOT discourage membership in CHICAGO AAIALGA- MATED LOCAL 758, INTERNATIONAL UNION, MINE, MILL AND SMELTER WORKERS, or discourage activity in support of that or- ganization or any other labor organization, or discourage any employee from exercising the rights secured to him under the National Labor Relations Act by means of discriminatory re- fusal to reinstate or discriminating in any other manner in re- gard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- 6In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing" 953841-52-vol 94-55 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, to form labor organizations, to join or assist CHICAGO AMAL- GAMATED LOCAL 758, INTERNATIONAL UNION, MINE, MILL AND SMELTER WORKERS, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8 (a) (3) of the Act, as guaran- teed in Section 7 thereof. WE WILL offer to Peter Nardi, George Fulk, Ira Fulk, Eugene Parenti, and Roy Tincher immediate and full reinstatement to their former positions and make them whole for any loss of pay suffered. NATIONAL DIE CASTING COMPANY, 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. Intermediate Report Dir. Ivan C. McLeod, for the General Counsel. Mr. Russell Packard, of Chicago, Ill., for the Respondent. Meyers, Meyers and Rothstein, by Messrs. Irving Meyers and David B. Roth- stein, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon charges duly filed by Chicago Amalgamated Local 758, International Union, Mine, Mill and Smelter Workers, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued a complaint dated June 15, 1950, against National Die Casting Company, Lincolnwood, Illinois, herein called the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices, within• the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondent: (1) having on April 28, 1949, for economic reasons laid off its production employees for an indefinite period and having thereafter, between May 8 and October 8, 1949, recalled substantially all of them' and hired some 30 new employees nevertheless failed to recall employees Peter Nardi, George Fulk, Ira Fulk, Eugene Parenti, Naomi Gleistein, Howard Sullivan, Roy Tincher, and Thomas Obermeyer, all members or former members of the Union's shop com- NATIONAL DIE CASTING COMPANY 851 mittee, because of their union membership and activities; and (2) thereby inter- fered with, restrained, and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act. Before the hearing, the General Counsel made a written "Request for Admis- sions" of counsel for the Respondent ; the Respondent thereafter filed a "Reply to Request for Admissions." The Respondent duly filed an answer admitting certain allegations of the com- plaint with respect to the nature of its business, but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held in Chicago, Illinois, from July 10 to 18, 1950, before Josef L. Hektoen, a Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. At the opening of the hearing the General Counsel moved to strike a portion of the Respondent's answer alleging that the Union was the victim of "Communist infiltration and domination." The motion was granted. General Counsel made two additional motions with respect to the pleadings, both of which were denied. At the close of the General Counsel's case-in-chief, counsel for the Respondent moved to strike all evidence respecting employee Sullivan. The motion was denied. Motions by the same counsel to strike what he interpreted as evidence of violations of Section 8 (a) (5) and independent violations of Section 8 (a) (1) of the Act were likewise denied. Motions to dismiss the complaint were also denied. Renewed at the close of the hearing, ruling was reserved upon them. Said motions are disposed of by the findings, conclusions, and recommendations appearing below. Oral argu- ment was waived by the.parties ; briefs were thereafter filed by the Respondent and the General Counsel. On December 4, 1950, by order of the Chief Trial Examiner, the undersigned Trial Examiner was designated to prepare an Intermediate Report in this case, due to the death of Trial Examiner Hektoen. Upon the entire record in the case, the undersigned Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT National Die Casting Company, Lincolnwood, Illinois, is an Illinois corpora- tion engaged in the manufacture and sale of diversified die casting products. It annually buys materials valued at $100,000 which are received by it from points without the State of Illinois. It annually sells finished products valued at about $100,000 which are transported in commerce to points outside the State of Illinois. The Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Chicago Amalgamated Local 758, International Union, Mine, Mill and Smelter Workers is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issue Contractual relations existed between the Respondent and the Union from May 1946 to May 1949. OnFebruary 24, 1949, the Union notified the Respondent, 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in writing, that it desired revision of the current contract and asked that a dare be arranged for negotiations. President Johnson ignored the request There- a tter Business Manager Pinta of the Union telephoned to Johnson, again request- ing a negotiating conference. Johnson declined, saying lie intended to close the plant down and there would be, no sense in negotiating.' On April 14 Pinta notified Johnson, by letter admittedly received, that since no agreement had been reached on a new contract, the Union was terminating the existing agreement as of May 18, the expiration date. A copy of this letter was sent to the U. S. Mediation & Conciliation Service Johnson was called by this Service, and told, according to his own testimony, that "the contract was coming to a termination point and a date should be set to negotiate" He admitted, however, that he set no date for such negotiation. Nor did he reply to any of the Union's letters. The unrefuted facts show and the undersigned Trial Examiner finds that although the Union made repeated efforts between February and April 1949, to negotiate a new contract, the Respondent declined even to meet with the union representative.' It is likewise concluded and found that by this conduct the Respondent displayed its clear intent to cease dealing with the Union as the representative of its employees and thereby expressed antipathy toward that otganizatton.' Johnson admitted receiving the telephone request from Pinta, but denied that he declined to negotiate . He claimed that he told Pinta that as soon as he could "clear" his mind he mould set a diite and that Punta thereupon agreed to call back "in two weeks," but "didn't call and nothing happened and that was the way it ended " The undersigned Trial Examiner cannot credit either Johnson's version or his denial . His own story is wholly implausible on its face. , Since he was the only one who would be likely to know when his mind became "clear," it is plainly improbable that Pinta would have agreed to sit idly by and call back in 2 weeks. Furthermore , circumstances described by Johnson himself stamp his denial as unbelievable As noted above , Johnson admitted, in effect , that he declined to set a date for negotiating when so requested by the U S. Conciliation Service As will be noted elsewhere in this report , Johnson 's answer and testimony are so contradictory and evasive as to deprive his testimony of trustworthiness generally The complaint does not allege , and the undeisigned Trial Examiner makes no finding that the Respondent's refusal to negotiate was an unfair labor practice within the meaning of the Act. At the hearing General Counsel specifically informed counsel for the Respondent that such violation was not in issue In his brief General Counsel points out that the issue was not raised in the complaint because at the time of its commission the Union was not in compliance with Section 9 (f), (g), and (h) The evidence was offered, he said , to show -"motive, purpose and attitude " On numerous occasions the Boa iii ha, found that evidence imilail% prescribed is 'relevant as background material for evaluating the character " of later conduct . (El iltando, Inc, 92 NLRB 724, and cases cited in footnote 2 therein ) 'The record contains a great deal of contradictory testimony as to anti-Union remarks made by Johnson and other management representatives to Pinta and members of the shop committee Much of this contradictory testimony is such that the undersigned Trial Examiner, not having seen the witnesses and their demeanor while testifying , is reluctant to attempt its resolution . Nor does it appear necessary to resolve such conflicts in testimony, since it would lead only to findings that anti-union ieniarks were or were not made, and thus either would or would not add support to the above finding that Johnson's conduct in refusing to negotiate expressed antipathy toward the Union and its leaders. df such support were found, it would add in weight , but not in substance The Respondent, clearly placed on notice as to the purpose of evidence offered as to negotiation efforts, adduced no affirmative evidence to show that it made any attempt to continue or renew its collective bargaining relationship with the Union or to show that it had any legitimate season for not making such attempt After repeatedly evading a direct question by General Counsel as to his willingness to negotiate with the Union during the period in question Johnson finally said • "We were attempting-I imagine, that had the sales picked up and had we had the amount of business , I imagine that thing would have happened , yes, because v, e had a union in there prior to that " NATIONAL DIE CASTING COMPANY 853 On April 28 the Respondent ceased production and closed clown all depart- ments but one The complaint concedes that the layoffs occurring on that date were for economic reasons. The sole issue is whether or not, in resuming production and recalling its employees thereafter, the Respondent discriminated, to discourage union activity, against certain union stewards and shop com- mitteemen by failing to recall them when production resumed. B The failure to recall The pleadings and evidence agree that the following individuals ceased work for the Respondent on April 28, 1949: Peter Nardi George Fulk Ira Fulk Eugene Parenti Naomi Gleistein Roy Tincher Thomas Obermeyer Howard Sullivan The complaint contends that these persons were and continue to be production employees Johnson, in his answer, admitted that although they had been they "ceased to be employees on April 28, 1949, at the time of the general shut down of the plant" Johnson's explanation, if any, of this allegation was not elicited at the hearing, either by his own counsel or by General Counsel. In any event, all ceased work at the close of the working clay on April 28 There is no evidence that any one of them was informed on that date, or at any later (late, that lie or she was discharged and would not be reemployed So far as the eight individuals were informed by management, it appears that all were included in, and in no way exceptions to, the blanket layoff order posted by Superintendent Wunderlich on April 25, which read: Due to continued decrease in our sales, coupled with the inadvisability of any further lay offs, it has been decided to shut down completely with the close of business Thursday April 28th 1949 The tool room will be the only department not effected by this order. As it is uncertain just how long this will continue, employees will be contacted when they will again be needed. Checks due the following week will be mailed to your home In order to be sure that our records are correct, please write on the back of your time. card this week the following information: Naive Address & Zone number Apt. Number Phone Number It would thus appear that the superintendent desired that all persons laid off should, consider themselves as continuing to be "employees," since he an- nounced that "employees will be contacted when needed." During the week of the general layoff, according to a summary of the Re- spondent's payroll records placed in evidence by stipulation of the parties, there were 71 production emplo.iees working. Superintendent Wunderlich testified that operations were resumed during the latter part of June, although the same summary shows that rehiring in some departments began in May.' By the week ending July 31 there were 76 production employees on the payroll, more than were working during the week of the general layoff. It is thus clear, and the undersigned Trial Examiner finds, that by July 31, 1949, the Respond- ! In accordance with the April 25 notice the toolroom crew remained at work after the general layoff. It appears also, from the superintendent 's testimony, that some of the guards and janitors were likewise retained. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's production force again equalled in number that which was employed at the time of the shutdown. There is no dispute as to the fact that none of the eight persons involved herein has yet resumed work for the Respondent . It is General Counsel's con- tention that seven of the eight have been discriminatorily denied recall , and that as to the eighth, Howard Sullivan, recall was discriminatorily delayed beyond a date he normally should have been offered employment. As noted above , the answer claims that the eight individuals "ceased to be employees on April 28." On the other hand, the answer also denies that it failed to recall these "em- ployees" for the reasons alleged by General Counsel . Without referring specifi- cally to any one of the eight, it alleges generally that "when it began to resume limited production, it recalled each former employee as it could employ, from time to time, in its revised production schedules and when former employees did not return for the type of job then available at the rate offered it was required to resort to the open market to fill such jobs." The Respondent adduced evidence tending to show that it did recall Howard Sullivan, who declined reemployment , and attempted to recall Thomas Ober- meyer, but could not locate him. As to Sullivan , his own testimony establishes that he was offered reemploy- ment but declined to accept it. He said the date of the recall had "slipped" his mind, and then placed it vaguely as about August 20. He had been working in the "cleaning and machining" department. According to the summary of rehiring records, previously referred to, the first recall in this department was made on May 25 and the April 28 employment level was not reached until July 31. General Counsel offered no proof to show what date, if any, before July 31, he believes Sullivan should have been recalled . Sullivan's own testimony is so uncertain that the undersigned Trial Examiner can make no finding as to pre- cisely what date he was offered and declined reemployment . It is concluded and found the evidence fails to support a finding that there was delay in recalling Sullivan. Furthermore , according to Sullivan 's own testimony , he held no office after May 1948, a year before the general layoff. It will be recommended that the complaint be dismissed as to Sullivan. As to Obermeyer, the question first to be resolved is whether or not the Respondent in fact made a reasonable effort to recall him, as the superintendent and his foreman claimed. Wunderlich's testimony on the point is confused. At first he said he tried to reach him "by phone and I also believe there was a call made at his last address." He said he did not know the address and that "I did not make the call myself ." He answered "Yes," however , to the next question : "You mean you went over to his house?" He placed the visit as before July 31. According to General Foreman Norbett Lindbloom , he "would have called him if he could have found him." He said he went to some address , which he could not recall , where he had previously called, sometime in the fall of 1948, and then found only Obermeyer's wife. On the final occasion, he said, he could find no one, "or anyone who knew him ." No testimony of either Wunderlich or Lind- bloom indicates that they made any attempt to reach Obermeyer by letter, or, telegram , or in person, at the home address given by him as a witness, although Lindbloon►admitted that he had previously seen "a card, more or less a hiring card of his that gave that as an address." Even if Lindbloom had actually, as he said, gone to an address where he had previously failed to find him, there is no credible explanation in the record as to why no attempt was then made to reach him at the address apparently on file in the Respondent 's records. In any event, the original charge was filed October 3 , naming Obermeyer among others. That the Respondent was promptly made aware of this charge is implicit in a statement NATIONAL DIE CASTING COMPANY 855 of its counsel to the effect that he conferred with a Board agent "with respect td the charges in this case " on October 10. There is no evidence that the Respond- ent then or thereafter made any effort to reach Obermeyer through the Board, or the Union , or made any claim that it had previously tried to reach him. Finally, had a genuine effort been made to recall the employee , it is reasonable to believe that the answer would have included an affirmative allegation to that effect The undersigned Trial Examiner finds that no bona fide effort was made to recall Obermeyer. As to the seven employees who were not recalled , it is clear that General Coun- sel's case must fail unless it is established that the Respondent knew or believed that they were, as alleged in the complaint , "members of the Union 's Shop Com- mittee." With respect to Naomi Gleistein, the undersigned Trial Examiner considers the proof insufficient to establish either such knowledge or belief on the part of the Re- spondent. Gleistein's own testimony makes it plain that she held no office in the Union, and never had held any . Apparently her only role was occasionally to serve as a medium through whom the department steward sent or received mes- sages from other girls . There is no evidence that management was aware of this, and no evidence that she met with management as a member of the shop committee. It will be recommended that the complaint be dismissed as to her. As to the remaining six employees not recalled : Obermeyer , Parenti, Tincher, Ira Fulk, George Fulk, and Nardi , both Johnson and Wunderlich , the former in his sworn "admissions" and the latter in his testimony , admitted knowledge or belief that each of them was a member of the union shop committee before and at the time of the April layoff. With respect to two of the six, Nardi and George Fulk, Wunderlich readily ad- mitted, in effect, that they were not recalled because of their activities on behalf of the Union on April 28. Counsel for the Respondent , in his brief , argues at considerable length about the no-strike clause in the contract which did not expire until May 18. The argument is pointless in view of the fact that no credible evi- dence was adduced to show that any strike occurred. The testimony of the Re- spondent's own witnesses is so confused and contradictory that no finding that a strike took place is possible. Wunderlich candidly admitted that there was no strike, and said only that he believed "there was to be one." Johnson, on the other hand , said : "There was a strike . As far as I can say, there is a strike." He said he could not remember , however, whether it occurred on April 29, the day after the plant shut down, or on the following Monday, May 2. It developed that his claim of a strike was apparently based upon seeing "Pinta , Nardi, Fulk and some others" standing on the street outside the plant on one or the other of those two days. He admitted he saw no banners or placards , that they were merely standing there talking to each other, and that he saw the group stop no other employees. Yet upon these negative facts he declared : "They were doing every effort to strike the plant ." The undersigned considers to be deter- minative the testimony of Loring Schey, chief of police , also a witness for the Respondent. He said that at Johnson 's request previously made he had his force present at the plant on the mornings of both April 29 and May 2, and on both dates "found no trouble or anybody around there." There is evidence showing that after working hours, on April 28, and after both had been laid off indefinitely according to Wunderlich 's notice, George Fulk and Nardi did attempt to get the toolroom employees to refuse to come in the next day. Either Fulk or Nardi, according to a non-union toolroom employee , told them that "Johnson is pulling a fast one, and it won 't be long, a couple of weeks, or three weeks, before you guys get laid off ." In any event, no one remained away from work because of their request, and there was no 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike. Since the request was made after working hours, it is plain that no production was interfered with. There is also some testimony that Nardi and Fulk were seen by foremen talking to other employees on April 28. Whatever they were engaged in it is plain that no issue was made of their conduct at the time, neither was warned of discharge or discharged because of it, and both were paid for their time by the Respondent in accordance with the regular pay schedule for stewards en- gaged in union business. Finally, it is reasonable to believe that had the Respondent actually decided, at any time, not to recall Fulk or Nardi solely because of their attempt to have the toolroom employees stay out, that decision would have been the basis of an affirmative allegation in the answer. No such claim is there made. So far as the record shows, the issue was first raised at the hearing, more than a year after the layoff. The undersigned Trial Examiner is convinced and finds that there is no merit in the Respondent's claim as to why it did not recall George Fulk and Nardi. The Respondent offered various and sundry reasons for not recalling Tincher, Parenti, and Ira Fulk. As to Tincher, who had been working as one of three filers on April 28, Wunder- lich and Lindbloom said that after resuming operations they needed only two filers, and recalled the two with more seniority than Tincher. When his atten- tion was called to the fact that company records showed that Tincher was also a machine operator, Wunderlich admitted that he could not explain why he had not been recalled in this capacity. Lindbloom, who testified later, when asked why Tincher was not recalled as a machine operator, said "he wasn't especially efficient, and [ had no knowledge that lie could perform the machine operations that we wanted." Shortly thereafter, however, Lmdbloom said he did not know Tincher was a machine operator. It follows that his previous statement that as a machine operator Tinclier "wasn't especially efficient" was based upon no readily ascertainable fact. In any event, Wunderlich's testimony makes clear that by October the department had at least four more employees than on April 28. In the absence of some credible explanation it must be presumed that some of them were new employees There is no evidence that Tincher was considered an unsatisfactory employee on or before April 28. The undersigned Trial Examiner finds no merit in the reasons advanced by Lindbloom for not recalling Tincher. As to Parenti, who the superintendent admitted had always been a satisfactory employee, Lindbloom said he did not recall him because "we had more capable people than Mr. Parenti." Presumably this fact, if true, existed before the layoff, yet there is no evidence that Parenti was ever laid off, or warned, for inefficiency. He worked in the same department as Tincher which, as noted above, by October had exceeded its April employment level. The undersigned Trial Examiner finds no merit in the reason advanced by Lindbloom for failing to recall Parenti. As to Ira Faille, a polisher in the same department, Wunderlich at first said lie was not recalled because lie was not "as versatile" as others, and then said, "I believe his name was not brought up, as I recall it." Lindbloom said Fulk was not "too adept." Payroll records, however, showed that Ira Fulk had the highest total earnings of all employees iri his department for the week of the layoff. Steve Edwards, head of the polishing department, gave equally inconsistent testimony. He said Fulk was both "careless" and a "good worker." He said he was not "lazy" but "if you didn't watch him, you couldn't depend upon him." It is unreasonable to believe that the Respondent paid the highest wages to "careless" workers upon whom it could not depend. He had ap- NATIONAL DIE CASTING COMPANY 857 parently been a wholly satisfactory, worker from December 1946 until the layoff. No credible reason was advanced for not recalling him. In short, the Respondent advanced no credible, plausible, or meritorious reasons for not reernploying Obermeyer, George and Ira Fulk, Parenti, Tincher, and Nardi. Even if, arguendo, one or more of these employees had been less efficient than others, all had been retained until the April layoff. It is reason- able to believe that they were at least as efficient as new and untried employees hired after production resumed. By October 1949 the production force had been increased to 131, and at the time of the hearing was about 80. All six of these individuals met as a committee with Wunderlich and Lind- bloom during the week preceding the layoff, at various times and particularly on April 28 There is dispute as to the subject matter discussed at the last meeting, the Respondent's witnesses testifying that "it seemed to be primarily concerned with stewards and the committee working after we shut down,"' and the committeemen claiming that they also demanded vacation pay and recall from the layoff on a seniority basis. Resolution of the conflicting testi- mony appears to be unnecessary. From all their testimony it is inferred that the arguments were acrimonious and extended, and that no final agreement was reached! In resolving the major issue in this case, it is necessary only to consider the testimony of Wunderlich and Lindbloom, who testified in effect, that the shop committee insisted vigorously, from April 25 to 28, that the contract should be so interpreted as to permit stewards and committeemen, instead of foremen, to work during the layoff. Whether merit was present in the Union's con- tention or not, urging it clearly was a matter of collective bargaining and a protected activity. It is plain from their testimony that both Wunderlich and Lindbloom resented the committee's activities.' Johnson, head of the concern, had previously and continuously since Feb- ruary made it clear that he had no intention of renewing the contract, or of negotiating toward a new one Ignoring the Union implied that he would not deal with or recognize it after the contract's expiration. Wunderlich and Lindbloom, the undersigned Trial Examiner is convinced by the evidence, merely patterned their function according to the design already defined by Johnson. Theirs was the power of ridding the plant of leaders of the Union which Johnson no longer chose to recognize The April 28 layoff offered opportunity and a pretext. It is reasonably interred from the record as a whole, and the under- signed Trial Examiner concludes and finds, that by April 2S management had decided that upon resumption of production these leaders would not be recalled. All six individuals were, in effect, constructively discharged as of April 28, 1949. Their discharges were discriminatory, for the purpose of discouraging member- ship in and activity on behalf of the Union, and thereby interfered with, re- strained and coerced employees in the exercise of rights guaranteed by the Act. 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 its operations described in Section I, above, have a close, 5 The quotation is from Wunderlich's testimony. 6 Wunderlich described the April 28 meeting as "in kind of a general 'hubub' on the whole general thing " 4 Lindbloom said, "I had nothing to do with placing that type of person on the com- mittee," referring to the committee members generally . Wunderlich testified that he considered one remark of Pinta to be "a pretty definite threat of a strike ," and he left the meeting of April 28 to lay "the matter in front" of Johnson 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent had engaged in unfair labor practices, the undersigned Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of Peter Nardi, George Fulk, Ira Fulk, Eugene Pa- rent!, Roy Tincher, and Thomas Obermeyer. It will be recommended that the Respondent offer to them immediate and full reinstatement to their former or substantially equivalent positions' and make them whole for any loss of pay they may have suffered as a result of the discrimination against them by pay- ment to each of a sum of money equal to that which he would have earned as wages from the date of discrimination, as found, to the date of the offer of reinstatement. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of Jan- uary, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each would normally have earned for each quarter or portion thereof, his net earnings,' if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter.1° In accordance with the Woolworth decision, it will be recommended that the Respondent, upon reason- able request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The preven- tive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat. It will be recommended, there- fore, that the Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Chicago Amalgamated Local 859, International Union, Mine, Mill and Smelter Workers 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 Peter Nardi, George Fulk, Ira Fulk, Eugene Parente, Roy Tincher, and Thomas Ober- meyer, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 8 The Chase National Bank of the City of New York, Ban Juan, Puerto Rico Branch, 65 NLRB 827. ' Crossett Lumber Company, 8 NLRB 440, 497-8. 11 F. W. Woolworth Company, 90 NLRB 289. SOUTHWESTERN ELECTRIC SERVICE COMPANY 859 3. By such discrimination and by interfering with, restraining, and coercing employees -in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not discriminated as to the hire and tenure of employ- ment of Howard Sullivan and Naomi Gleistein within the meaning of the Act. [Recommended Order omitted from publication in this volume.] SOUTHWESTERN ELECTRIC SERVICE COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 790. Case No. 16- CA-307. May 08, 1951 Decision and Order On March 9, 1951, Trial Examiner Lee J. Best issued his Intermedi- ate Report in the above-entitled proceeding finding that the Re- spondent 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 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed? The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.3 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act as amended, the National Labor IPursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairm.an Herzog and Members Houston and Reynolds]. We find no merit In the Respondent 's contention that the Trial Examiner erroneously sustained an objection by the General Counsel to the Respondent's introduction of evidence to prove that the unit found by the Board was inappropriate , and that the election conducted by the Board was not fairly held. These issues were fully litigated and considered by the Board in Southwestern Electric Service Compan, 89 NLRB 114, 90 NLRB 457, and 91 NLRB No. 19, and could properly not be relitigated in this complaint proceeding. Clark Shoe Company, 88 NLRB 989; Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U. S. 146 ( 1941 ) ; N. L. R. B. v. West Kentucky Coal Company, 152 F. 2d 198 (C. A. 6), certiorari dented 828 U . S. 866. $ As appears In section 1 (a) of our Order, we have adopted the description of the unit which was set forth In our Decision and Direction of Election ( 89 NLRB 114), rather than that employed In the unit finding in the Intermediate Report. The difference is one of phraseology , however, and involves no variation in the unit found appropriate. 94 NLRB No. 131.