Geo. Myrmo & Sons

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discharging Gordon C. Coker and Frank Neal on May 11, 1956, and by refusing to reinstate the unfair labor practice strikers listed in Appendix A attached hereto on July 16, 1956, thereby discriminating in regard to their hire and tenure of employment and thus discouraging membership in International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists , Local No. 414, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the "meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, 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 com- merce within the meaning of Section 2(6) and (7) of the Act.- [Recommendations omitted from publication.] Emil A. Myrmo and Arthur Myrmo, Partners d/b/a Geo. Myrmo & Sons and Leonard A. Drake and Henry Goodman , Jr. Cases Nos. 36-CA-822 and 36-CA-814. December 2,19J8 DECISION AND ORDER On July 16, 1958, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor -practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, both the Respondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Emil A. Myrmo and Arthur Myrmo, partners d/b/a Geo. Myrmo & Sons, Eugene, Oregon, its officers, agents, successors , and assigns shall: 1. Cease and desist from : (a) Discouraging membership of their employees in International Association of Machinists, Lodge 1311, AFL-CIO, or in any other -labor organization, by discriminatorily failing or refusing to employ :any employee or applicant for employment, or in any other manner 122 NLRB No. 40. GEO. MYRMO & SONS 257 discriminating against any employee or applicant for employment in regard to his hire, tenure, or any term or condition of employment, except as authorized by Section 8(a) (3) of the National Labor Re- lations Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to join, form, or assist International Association of Machinists, Lodge 1311, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right might be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Henry Goodman, Jr., and Leonard A. Drake im- mediate and full reinstatement to their respective former, or sub- .stantially equivalent, positions, without prejudice to their seniority and other rights and privileges previously enjoyed, dismissing, if necessary to effectuate such reinstatement, any employee hired by the Respondent for any such position since July 15, 1957, or with less seniority of service than Goodman or Drake in any position for which the said Goodman or Drake, as the case may be, is eligible for rein- statement under the terms of this Order; and make the said Goodman and Drake whole in the manner and according to the method pre- scribed in section V of the Intermediate Report, entitled "The Remedy." (b) Preserve and make available to the Board, and its agents, upon request, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due, and the rights of employment under the terms of this Order. (c) Post in conspicuous places, including all places where notices to employees are customarily posted at their principal place of busi- ness in Eugene, Oregon, copies of the notice attached to the Inter- mediate Report marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director of the Nineteenth Region of the National Labor Relations Board, shall, after being signed by Arthur Myrmo and Emil Myrmo in the appropriate places for signatures 1 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 505395-59-vol. 122-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided in the said notice, be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall. be taken by the said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, as to what steps Respondent has taken to comply therewith. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The central issue in this proceeding is whether a firm named Geo. Myrmo & Sons (also called the Respondent .or the Company herein) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136-163), by failing or refusing to reemploy two individuals, Henry Goodman, Jr., and Leon- ard A. Drake, following a strike by the Company's employees.' Pursuant to notice duly served by the General Counsel of the National Labor Relations Board upon all other parties, a hearing upon the issues in this proceed- ing was held before me, as duly designated Trial Examiner, on May 6 and 7, 1958, at Eugene, Oregon. The General Counsel and the Respondent were repre- sented at the hearing and participated therein through their respective represent- atives. All parties were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs and submit oral argument. No briefs have been filed. Upon the entire record, and from my observation of the witnesses, I make the following findings of fact: FINDINGS OF FACT 1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD Geo. Myrmo & Sons is a trade name for a partnership consisting of two broth- ers, Arthur Myrmo and Emil A. Myrmo. The Company maintains a place of business in Eugene, Oregon, where it is engaged in the operation of a machine and truck repair shop, and in the sale of automotive parts. During the year 1957, the Company sold goods and services valued, in the aggregate, in excess of $110,000, to various customers, each of whom "annually" ships goods valued in excess of $50,000 from points in one or more States to locations in other States. By reason of the Company's operations, considered in conjunction with those of its said customers, the Company, at all times material to the issues in this proceeding, has been engaged in interstate commerce within the meaning of the Act, and its operations have affected such commerce. Accord- ingly, the National Labor Relations Board has jurisdiction over the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, Lodge 1311, AFL-CIO (also designated below as the Union) admits persons employed by the Company to membership; exists, in whole or in part, for the purpose of dealing with employers concerning terms and conditions of employment; and is a labor organization within the mean- ing of the Act. I The complaint in this proceeding, issued on April 22 , 1958, by the General Counsel of the National Labor Relations Board , is based on two charges filed with the Board, one by Goodman on February 20, 1958 , in Case No. 36-CA-824 and the other by Drake on February 19, 1958, in Case No. 36-CA-822. The two cases have been duly consolidated in accordance with Section 102.33 of the Board 's Rules and Regulations , Series 7. Copies of the charges, order of consolidation , and complaint have been duly served upon the Company. GEO. MYRMO & SONS III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement 259 The Company's production operations appear to be divided , in the main, into a machine shop and a truck shop. (There is also a blacksmith shop which has only one employee and is not involved in this proceeding.) As of June 5, 1957, there were 18 nonsupervisory production employees in the Company's employ. These included Henry Goodman, Jr., who worked in the truck shop as a welder,2 and Leonard A. Drake, who was employed as a journeyman machinist in the machine shop. The Union represents the Company's production employees, and, as their col- lective-bargaining representative, has dealt with the Company over a period of years, entering into agreements with the Company affecting terms and conditions of employment of such employees. On June 5, 1957, substantially all of the Company's production employees, including Goodman and Drake, went on strike for economic reasons? The .strike was sponsored by the Union. The Company hired no replacements for the striking employees at any time during the strike. On July 12, 1957, representatives of the Union, including Charles H. Pence, Grand Lodge representative of the organization, reached an oral agreement with the Company for settlement of the strike. At the time of the agreement the Company did not have enough work for all of the striking employees, and the terms of settlement therefore included an agreement that the employees, with the exception of an individual named H. K. Beeley, would be entitled to return to work in the order of their seniority status in their respective classifications; that on that basis certain named employees would return on the following Mon- day, July 15; that, in addition, irrespective of seniority considerations, Beeley would be put to work on that date because he had some needed "engineering ability"; and that the rest of the employees would be called as needed by the Company in accordance with their seniority status in the classifications required by the firm.4 The terms were ratified by the Union's membership at a meeting on the evening of July 12. Later that night, in accordance with a prior arrange- ment with the Company, Pence telephoned Alfred P. Blair, a labor relations con- sultant, who represented the Company in negotiations with the Union during and after the strike, and informed Blair of the action taken at the meeting by the employees. In the course of the telephone conversation, Pence made a proposal that employees who were called back to work be given 2 days' advance notice. Blair took the position "that that was too long a time" and proposed a notice of 24 hours. The upshot of the matter was that Blair and Pence agreed in effect, on behalf of their respective principals, that the Company would give each em- ployee, who was called back to work after the return of the initial group on July 15, 24 hours' advance notice of the time he was required to report.5 As stipulated 2 Goodman testified that he was employed in the truck shop as a welder and mechanic. .According to Emil Myrmo, Goodman was classified as a welder only. However, at another point Emil stated that Goodman did not work as a mechanic "in the sense that we classify a mechanic . . . working on transmissions, differentials, very highly skilled work," thus implying, albeit vaguely, that Goodman performed the work of a mechanic to some extent. While it is probable that Goodman did a mechanic's work in some measure, the evidence does not firmly establish that he was classified by the Company as it mechanic or the extent to which he performed the work of one. In the light of the whole record, I think it likely that his work was primarily that of a welder. 3 The finding that the strike was economic in nature is made only for the purposes of this proceeding. 4 Emil Myrmo testified that the Company "thought" when it settled the strike that it had an "understanding" with the Union that it would not be required to reinstate a machinist named Keith 1=Iolverstott. According to Pence's testimony, no such exception was made. iIolverstott was picket captain during the strike and appears to have been a leading figure in the strike activities. One may thus at least entertain some doubt that the Union would agree to except him from the provisions for reinstatement. Moreover, as will appear, Emil Myrmo gave implausible testimony concerning other aspects of this proceeding, and I find myself unable to place any reliance on his relevant testimony regarding I3olverstott. In any event, whatever "understanding" the Company had con- cerning Ilolverstott has no impact on the question whether it has unlawfully discriminated against Goodman and Drake, and cannot affect the results in this proceeding. s Findings concerning the telephone conversation between Blair and Pence are based on the latter's uncontroverted testimony. The Company advances no claim that Blair's 260 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD by the terms of settlement of the strike, various employees returned to work on July 15. Additional reference will be made to these later. B. The alleged discrimination against Goodman Goodman entered the Company's employ in July 1952; was laid off because of lack of work from some point in November 1953 until June 1, 1954; and there- after worked steadily for the Company until the strike. The Company was sat- isfied with his work. He participated in the strike, engaging, with other employ- ees, in picketing activities at the Company's premises. During the second week of the strike, in or about the middle of June, Good- man's wife, Barbara, at the instance of Drake (who was a member of the em- ployees' strike committee), spoke on the telephone to the manager of a firm which deals in automobiles and purchases parts from the Company, and told the manager that a driver employed by his firm "was crossing the picket line at Myrmo's"; that her husband was one of the striking employees there; that she and her husband owned a car of a certain make (apparently one sold by the dealer); and that if the "driver did not stop crossing the picket line," the Good- mans would withhold their future business from the dealer. The manager re- plied that "he would see what he could do." A few days later, both Myrmo brothers learned that Mrs. Goodman had made the call, and became aware of its substance. (The evidence does not establish the source of their information.) At the time of the strike settlement, three truck shop employees (Ruth, King, and Robb) were senior to Goodman in point of service and four (Duckett, Sheri- dan, Butler, and Jones, all welders except Sheridan who was a mechanic) were junior to Goodman.6 So far as the evidence shows, only two truck shop em- ployees, Ruth and King, were among those who returned to work for the Com- pany on July 15 7 Goodman worked as a welder for another concern after the strike settlement. On Friday, August 23, 1957, while Goodman was so employed, the Company, according to testimony by both Myrmo brothers and Jens Boyum, foreman of the truck shop, required the services of an additional welder for "a short job" (as Emil Myrmo described it). Upon Arthur Myrmo's instructions, Clifford Adams, manager of the Company's parts department, spoke to Goodman on the telephone and told the latter that the Company wished him to come back to work. Goodman replied that he could not "come right away," and referring to some work in which he was then engaged, stated that he had "a truck cut in half," and that he could not leave without giving his employer "advance notice." Goodman also said that he would come to the Company's place of business that evening and talk to the truck shop foreman "about returning to work," but Adams asserted that Goodman was needed "right away or not at all." 8 Goodman said that he could not "make it right away," and that appears to have ended the conversation. He did not come to work as requested. Adams reported what Goodman had said to Arthur Myrmo. The Company made no effort to secure the services of Duckett , Butler, or Jones, or of any other welder for that matter, for the "short job" offered Good- agreement with Pence was beyond the scope of the former's authority. Indeed such a claim would lack merit, for the record amply warrants an inference that the commitment Blair made was within the scope of his authority. One may note in that connection that in addition to representing the Company in negotiations with the Union during and after the strike, Blair was a signatory, on behalf of the Company, to the written contract with the Union, which followed the oral settlement agreement; and that Blair also similarly signed a contract between the Union and the Company in 1958. 8In passing, it may be noted (without material effect upon the results in this proceed- ing) that the Company apparently computes Goodman's seniority status not from the date he first entered its employ but from the date he returned to work in 1954 following a layoff. 7 There is no evidence that Robb, the third truck shop employee whom the Company regards as senior to Goodman, returned to work either on July 15 or subsequently. The lack of such evidence does not affect the results here. 8 Adams in effect denied that Goodman "said anything about being unable to leave on such short notice." However, Arthur Dlyrmo conceded in his testimony that Adams reported to him that Goodman had stated that he could not leave his employer without giving him some notice. In any event, Goodman's recollection of his conversation with Adams appeared to me to be better than that of the latter, and I have based the relevant findings on Goodman's account. GEO. MYRMO & SONS 261 man, and completed it, according to testimony by witnesses it called, within a few days, using some overtime work in the process.9 The Company has not offered Goodman any employment since August 23, 1957, although it has had openings for a welder since that date. The first of these occurred on September 16, 1957, and on that occasion, Arthur Myrmo told Foreman Boyum that "Duckett would be the next man on the (seniority) list." Boyum thereupon put Duckett to work, and the latter was still in the Company's employ as a welder at the time of the hearing. There was another opening for a welder on April 2, 1958, but instead of offering the job to Goodman, the Re- spondent hired a man named Racy who had not previously been in its employ. The General Counsel contends that the Company has seized upon Goodman's failure to accept Adams' offer of August 23 as a pretext for withholding job opportunities from him thereafter; and that it has done so as a reprisal for his wife's strike activity, and has thus unlawfully discriminated against him.l° The Respondent seeks to explain its omission to offer Goodman the work given Duck- ett and Racy with claims that Goodman was, as Arthur Myrmo put it in his testimony, "off the seniority list" after August 23, or, in other words, that Good- man's failure to accept Adams' offer of August 23 relieved the Company of any further obligation to give him employment; and that he did not thereafter seek reinstatement." The Respondent's explanation, however, rests upon fallacious premises. By as- serting that Goodman was "off the seniority list" after August 23, the Company ignores the commitment it made on July 12 to give those employees it called back to work after July 15 an advance notice of 24 hours. Obviously, whether or not the Company needed Goodman "right away" on August 23, as it claims, it could not unilaterally effect a forfeiture of his seniority rights by departing from its commitment and insisting, as it did in effect on August 23, that he abandon the job he held on that date, and the work he was then engaged in doing, and "come right away or not at all" (to work, it may be noted, on "a 9 According to Arthur Myrmo, Jones was in California at the time and thus not avail- able. There is no evidence, however, that Duckett and Butler were unavailable. (Arthur Myrmo testified, quite speculatively it seemed to me, that Butler was "out of town, too, or he had quit his employment with us.") Arthur Myrmo stated that he did not himself seek Duckett's services for the work in question, and that he could not remember whether anyone else did. In the light of that testimony, and bearing in mind that it was Arthur Myrmo who directed that Goodman be called, one may fairly infer that no other repre- sentative of the Company sought Duckett's services for the work involved. 11 The General Counsel also takes the position, in effect, that the offer of August 23 was not made in good faith, but rather with the anticipation that Goodman would not or could not accept it, and with the belief that his inability or refusal to accept would relieve the Company of all further obligation to offer him employment. Although one may note in that connection that Duckett has been regularly employed by the Company since he was called back to work (notwithstanding a claim that he was called for only "one job"), and that the Respondent presents no satisfactory explanation for its omission to call Duckett or Butler for the work for which Goodman was required on August 23 "to come right away or not at all," I deem it unnecessary, in view of the findings made below, to pass on the General Counsel's claim that the Respondent had an ulterior motive for making the offer of August 23. 11 The Company also stresses the fact that the Union has not invoked the arbitration provisions of a collective-bargaining agreement, to which it and the Company are parties, to secure a determination of the reinstatement rights of Goodman and Drake ; and, indeed, as is evident from its answer, seeks a dismissal of the complaint because Goodman and Drake "have [not] exhausted the remedies available to them under the terms and provi- sions of the labor agreement in effect at the time of the filing" of the charges. These attitudes misconceive the nature of this proceeding. It has been long established, and is now elementary, that the proceeding initiated by the General Counsel's complaint is brought to vindicate and protect public rights. National Licorice Company v. N.L.R.B., 309 U.S. 350, 362-363; 11aleston Drug Stores, Inc. v. N.L.R.B., 187 F. 2d 418, 420, 422 (C.A. 9). Obviously, if the Respondent has infringed upon such rights by discriminating against Goodman and Drake, it may not find absolution for its conduct in the fact that Goodman and Drake, and not the Union, filed the charges upon which the complaint is based, or in the omission by the individuals concerned, or by the Union, to invoke or exhaust private contractual remedies available to them. See Section 10(a) of the National Labor Relations Act, as amended; N.L.R.B. v. Radio Officers' Union, etc., 196 F. 2d 960, 965 (C.A. 2), affd. 347 U.S. 17; N.L.R.B. v. Newark Morning Ledger Co., 120 F. 2d 262, 268 (C.A. 3), cert. denied 314 U.S. 693. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD short job" which the Company anticipated would be completed within "just a few days"). What is more, under the terms of settlement of the strike, Goodman was under no obligation to seek reinstatement; rather it was the Respondent's duty to offer it to him when it had need of a welder.12 Particularly if one bears in mind the undisputed fact that Goodman worked steadily and satisfactorily for the Company for a substantial number of years prior to the strike, the Respondent, in the face of the evidence of the strike activity of Goodman's wife, and of the terms of settlement of the strike, is, it seems to me, under a duty to go forward with the evidence and present a credi- ble explanation for its failure to offer Goodman the employment it gave Duckett and Racy, if it wishes to escape an inference of unlawful discrimination against Goodman.13 But the explanation offered, resting, as it does, on obviously un- tenable premises, is so lacking in substance that I am unable to believe that it is advanced in good faith; and the very fact that it is put forward bolsters an in- ference, which I draw upon a total view of the record, that the Company has used, and is using, Goodman's refusal "to come right away" on August 23 in response to the Company's requirement that he do so, as a pretext for subse- quently withholding employment opportunities from him; and that the real rea- son for the failure to give Goodman the work given Duckett and Racy is the fact that Goodman's wife in effect sought to induce a customer of the Company to withhold business from it during the strike. I find, in sum, that the Company has discriminated against Goodman in the application of the terms of settlement of the strike because of his wife's strike activity; 14 and that on the respective occasions when the Company called Duckett, instead of Goodman, back to work, and hired Racy, instead of offering Goodman the opening available for a welder at that time, the Company discriminated against Goodman in violation of Section 8(a)(3) of the Act; and thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thus violating Section 8(a)(1) of the statute. C. The alleged discrimination against Drake Drake entered the Respondent's employ as a machinist's helper on or about April 20, 1953. About 2 years later, he was promoted, with a corresponding increase in pay, to the classification of "specialist" (a machinist, according to the testimony, but one who is not "expected" to perform all the functions of a jour- neyman). In or about April 1956, the Company promoted Drake again, this time to the classification of journeyman machinist, with an applicable increase in his rate of pay. There is no evidence that Drake's work was ever criticized ad- versely, whether by either of the Myrmo brothers or by any other person, prior to the initiation of this proceeding. On the contrary, it is undisputed that shortly after Drake became a journeyman machinist, his supervisor, Floyd G. Bevel, fore- man of the Company's machine shop, praised him as "a damned good man," and as "always" finding something to do upon running out of work. In his testimony Bevel, who was called as a witness by the Company, did not go quite that far, but there can be no doubt that Bevel, as he in effect testified, was satisfied with Drake's work and regarded the latter as "a conscientious worker," although, ac- cording to Bevel, Drake "hadn't the experience to be fast enough," and "it just took him a little more time and we had to watch the jobs a little . .. closer." Drake suffered a heart attack on August 11, 1956. He was then about 30 years of age. While he was convalescing, his physician advised him that he could 12 The Company called a mechanic named Sheridan back to work on September 3, 1957. Although Sheridan entered the Respondent's employ after Goodman, I make no finding that the Respondent was obligated, under the strike settlement terms, to offer Goodman the work given Sheridan. As indicated earlier, notwithstanding the evidence that Goodman performed some work (of unspecified nature) as a mechanic, the record will not support a finding that the Company classified him as one, or that he was qualified to perform all phases of the work required of employees so classified. 13 Needless to say, the General Counsel has the burden of proving unlawful discrimina- tion, and, conversely, I do not imply that the Respondent has the burden of disproving it. What I do hold is that against the background of the evidence of Goodman's work history, his wife's particular strike activity, the Respondent's knowledge of what she did, and the terms of settlement of the strike, an inference of unlawful discrimination against Goodman is warranted unless the Respondent provides a credible explanation for its failure to offer him the employment it gave Duckett and Racy. See National Grinding Wheel Company, Inc., 75 NLRB 905, 907. 14 See N.L.R.B. v. Roure-Dupont Manufacturing, Inc., 199 F. 2d 631 (C.A.. 2). GEO. MYRMO & SONS 263 resume his employment provided he "used [his] head" and avoided overexertion, and Drake returned to work at the Company's machine shop 9 weeks after the onset of his ailment. At the time of his return, Bevel, whose duty it is to make the work assignments in the machine shop, and Emil Myrmo were aware of the medical advice Drake had been given. Generally, after Drake resumed his em- ployment, Bevel assigned tasks to him in the regular order, but if there was a choice at the time of the assignment between "heavy" and "light" jobs, Bevel followed the practice of assigning the latter to Drake. There were thus "several [heavy] jobs" that were withheld from Drake, as Bevel in effect testified, but there were also "a few times" when the foreman "had to use him [Drake] on heavy work" (usually with an admonition "to take it easy"). Drake never rejected a work assignment, nor did he ever ask to be relieved of one. Following his re- turn to work, he experienced some difficulty with his heart, while at work, on several occasions, but except for one of these, he lost no time from work, taking a medication, which he carries on his person, to relieve his condition. The exception involved an occasion one afternoon about 2 or 3 months before the strike, when he "got to feeling bad" and left his work, absenting himself for about 2 or 3 hours.15 Drake actively participated in the strike, serving as a member of a three-man strike committee,16 by election of the employees, and as assistant picket captain. It was Drake's duty to "take care of the necessary finances of the strike . . . and . . . any correspondence that might come up pertaining to the strike." He was at the picketing site "almost daily," and, in addition to picketing himself, it was his function to keep records of the picketing by others and to endeavor to keep the picketing "orderly." As Bevel put it in his testimony, Drake "stood more picket duty than the rest of them" (striking employees), and thus, taking into account Drake's other strike duties, it is likely that he engaged in greater strike activity in the vicinity of the plant than any of the other employees. Both Myrmo brothers frequently saw him at the picketing site, usually exchanging pleasantries such as morning greetings with him and others on the picket line. At the time of settlement of the strike, four machine shop employees ( Sustello, Hall, Stang, and Murphy, all journeymen) were senior to Drake, and four (Hol- verstott, Leister, Beeley, and Martin, also all journeymen) were junior to him. Those who were senior were included in the group that returned to work on July 15. In addition, as noted earlier, by agreement between the Union and the Com- pany, Beeley also resumed work on that date. Drake visited the Company's place of business frequently ("almost daily") dur- ing the next few weeks in order to ascertain whether there was work available for him. On the first of these occasions, he spoke to Foreman Bevel and the latter told him that he had been instructed by the Myrmo brothers not to hire anybody, that they "wished to take care of the hiring and firing themselves," and that those wishing "to be rehired would have to check with them." (Notwith- standing these instructions, Bevel has been, at all times material to the issues, a supervisor within the meaning of the Act, for, as Arthur Myrmo testified, Bevel is in charge of the machine shop operations and has authority to hire and dis- charge employees .) Drake spoke to each of the Myrmo brothers soon thereafter (within the week after he talked to Bevel), and each told him that the Company "didn't have enough work yet." No other reason was given him for not calling him back to work until about a month after settlement of the strike. On that occasion, Drake asked Emil Myrmo whether he would be given work soon, and Myrmo replied in the negative, stating that there was not enough work, but that he "was looking for a man to run the big Axelson lathe" (certain machine shop equipment installed before the strike), that he did not regard Drake as qualified to get sufficient production out of the machine, that he had a suitable prospect for employment "that could do anything any time" but that the Union had inter- 151 do not credit testimony by Emil Myrmo that Drake lost "three or four days" from his work as a result of his condition after he returned to work. Upon my observation of Emil, I gathereu the impression that his testimony sounded a note of advocacy from time to time, and that he was disposed to forsake objectivity on such occasions. For example, in one such instance, in effect contradicting prior testimony by Bevel, Drake's immediate supervisor, Emil testified that Drake had not "worked on every lathe in the shop." Bevel had previously stated that Drake "had worked on all the machines." I have no doubt that the latter testimony is accurate, and believe that Emil's misstatement stemmed from a partisan desire to belittle Drake's ability. 1e The other members of the committee were Keith Holverstott and Con Stang, both machinists. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posed an objection. Drake made no comment, taking the view that Emil "was merely talking in generalities." The frequency with which Drake visited the Company's place of business dimin- ished as time went on, so that by December 1957 it had become his practice to call at the establishment about once a week. He usually asked Bevel, and on occasion one or the other of the Myrmo brothers, "if work was picking up, if they needed anybody," and was customarily told that "work was slow." On the occasion of such a visit by Drake on December 17, 1957, Emil Myrmo told him that there was not enough work available for the men then employed, and that he did not know whether the Company would ever have work for Drake. This was followed by a discussion that centered upon claims by Drake that the Company owed him some "pro-rated vacation pay," and the sum of 2 dollars for "field work" the previous March. Emil denied that the Company owed Drake any money, and in the course of the conversation took the position, in substance, that by going on strike the employees involved had "quit their jobs," that those who had resumed their employment were thus "new employees" with "new sen- iority dates," and that because Drake, like the other strikers, had "quit," there was no "vacation pay" due him. The upshot of the discussion was that Emil who had become angry during its course, directed Drake to "get out and stay out." Drake thereupon left Emil but, before quitting the premises, went to the ma- chine shop and gave Bevel an account of his conversation with Emil. Drake then adverted to the fact that Bevel had previously told him that his "work had always been all right," and Bevel agreed, but said: "I think you have been too active in union affairs for your own good." 17 Drake replied that somebody "had to do" what he had done, that he had engaged in strike activities by designa- tion of the other employees, and that he had not "done anything out of order." That appears to have ended the conversation. Drake left the Company's estab- lishment and has not been back since. Drake and Holverstott are the only machinists in the Respondent's employ at the time the strike began who have not been called back to work by the Com- pany.18 Notwithstanding the terms for settlement of the strike, Leister, who is junior to both Drake and Holverstott in point of service, was called back to work during the week following the settlement but was laid off, because of objection by the Union, after working only 2 days (July 18 and 19). Martin, who is simi- larly junior to Drake and Holverstott, was reemployed by the Company as a journeyman machinist on February 3, 1958, and Leister resumed his employment as a journeyman on February 7, 1958. From the general context of the evidence, it may be assumed that both Leister and Martin were still in the Company's employ at the time of the hearing in this proceeding. The reasons advanced by the Respondent for passing over Drake appear in Emil Myrmo's testimony. He stated that on September 10, 1957, at a meeting attended by company representatives and Pence "and two members of the Union," the management told Pence that the Company needed a machinist, but that, al- though Drake was "the next man up . . . on the seniority list," the Company did not feel that he was qualified to operate the Axelson lathe and, in addition, because "of his health . . . didn't want him on that big piece of equipment"; and that Pence stated that he had been informed by Drake that he "didn't feel he would be able to hold down a job on this particular machine" (the Axelson lathe). According to Emil, Pence's statement was "the particular reason" why Drake was given no "further" consideration for the opening available for a machinist at that time. Emil also testified that prior to the time Leister and Martin were called back to work in February 1958 the Company had no "other work of any nature" that Drake could have done; and that the Company has since had no opening for Drake "considering his health." 17 Drake testified, without proper objection, that Sustello made a similar statement to him concerning his union activity while lie was in the machine shop on December 17, as well as on a prior occasion. Sustello appears to be employed by the Company in a semi- supervisory capacity, and is also the Union's shop steward. Drake's testimony quoting Sustello is obviously hearsay (and would have been excluded upon objection on that ground), for it is not established that Sustello is a supervisor within the meaning of the Act, nor is there any other basis in the record for the imputation of Sustello's remarks, as quoted by Drake, to the Company. I base no findings on Drake's testimony concerning such remarks. is The Respondent has refused to reemploy Holverstott. The reason for the refusal was not litigated at the hearing, and is not within the issues presented by the pleadings. GEO. MYRMO & SONS 265 Drake denied that he ever told Pence that he did not think he was qualified to operate the Axelson lathe. He testified that when Pence reported to him that the Company had taken the position that he was not qualified to operate the lathe, he had replied that if "any man" were "put on that machine there would be some job . he couldn't do," and that he (Drake) "was no different than anybody else." In his testimony, Pence supported Drake's denial, asserting, also, that he had never informed the Company that Drake considered himself unqualified to operate the Axelson lathe, or that Drake did not have the physical condition required for a machinist's work. According to Pence, he did refer on one occasion to Drake's physical condition, and what he said then was to express his "personal feeling" that he (Pence) would not work in a machine shop if he had a heart condition. He made this statement, Pence testified, to Emil Myrmo on one occasion, following the strike settlement, when he "met with Emil Myrmo on the subject of putting men back to work" and took the position that the "men must be called back according to seniority." 19 From what has been said above, it is evident that the central question pre- sented regarding Drake is whether he has been passed over for employment be- cause of his undoubtedly prominent strike activities or for the reasons set forth in Emil Myrmo's testimony. As background to a resolution of that issue, it may be borne in mind that the Company, judging by what Emil Myrmo said to Drake on December 17, 1957, appears to entertain the notion that the employees "quit their jobs" by the act of striking, and that the Company is thus free to deal with them as "new employees." This not only involves an erroneous legal conception 20 but reflects, it seems to me, an underlying hostility by the Respondent to the exercise by its employees of their protected right to strike. In any event, whether or not Emil's remarks of December 17 be taken into account, the credible evi- dence, for reasons that will appear, lead me to the conclusion that the Respond- ent has unlawfully discriminated against Drake. In considering the Respondent's claim that Drake's heart condition entered into its decision to deny him employment, one should refrain from any lay judgment whether it is wise for a man with a history of cardiac illness to work as a ma- chinist. (It may be noted, in passing, that the record contains no medical testi- mony on the subject of Drake's physical condition or capacities, and that the nearest approach to evidence of a medical opinion consists of hearsay testimony by Drake to the effect that he was advised during his period of convalescence by his physician that he could resume his employment provided he used good judgment in avoiding overexertion.) The relevant question, so far as the Re- spondent's motive for withholding employment opportunities from Drake is con- cerned, is not whether he has the requisite physical capacity to work as a jour- neyman machinist, or is wise to pursue such an occupation, but whether his heart condition has actually been a factor in the decision to pass him over for employment and not a mere pretext to conceal an unlawful motive for doing so. A number of hard facts guide the way to a resolution of that issue. One of these is that after he returned to work following his heart attack and period of convalescence, Drake worked fairly steadily for some 8 months preceding the strike, losing only a few hours from work during the period as a result of his heart condition. To be sure, when Bevel had a choice, it was his practice to accord Drake special consideration because of the latter's condition, withholding "several [heavy] jobs" from Drake for that reason, but a full view of the evi- dence pertaining to Drake's work after his convalescent period leaves me with 19 Pence did not appear to have any independent recollection of the date of this meeting, but at one point, the sense of his testimony, apparently refreshed by some notes he had made, was that it took place on August 7, 1957. According to Pence at another point, the subject of Drake arose during a conversation with Emil in the parts department at the Company's place of business. Emil, on the other hand, testified that Pence made the remarks on the subject of Drake at a meeting held on September 10, 1957, between representatives of the Union and those of the Company to discuss the latter's opposition to the reinstatement of 13olverstott. There is no doubt that Pence made some reference to Drake on an occasion when the former came to the Company's place of business regard- ing Flolverstott, whether the discussion took place in August or September, and whether at a meeting of the type described by Emil or, as Pence testified, during the course of a talk between himself and Emil "at the end of the parts counter" in the parts department. The important question is what was said by Pence on the subject of Drake. That issue will be resolved at a subsequent point. 20 See Section 2(3) of the Act, which defines the term "employee," and the construction given to the definition in N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conviction that, in the main, he was given work assignments in. the regular course, or, in other words, that the occasions when "heavy" work was withheld from him were few in number, and hence exceptional, and that the Company was substantially satisfied with his performance and content, prior to the strike, to retain him as a journeyman machinist, notwithstanding his heart condition and the special treatment Bevel gave him as a result. That conclusion is bolstered by two undisputed facts: (1) the Company made no exception of Drake in the terms of settlement of the strike, but, on the contrary, agreed to call him back to work along with the other machinists on the basis of seniority (indeed, as late as July 19, 1957, the Company carried Drake's name on a "seniority list" of its employees); 21 and (2) on not one of the numerous occasions when Drake came to the Company's establishment seeking work was his heart condition ever men- tioned to him by either of the Myrmo brothers, let alone ever put forward as a reason for not employing him. Significantly, also, when Drake discussed Emil's attitude toward him on December 17 with Foreman Bevel, the latter not only said nothing about Drake's cardiac condition but agreed, in effect, that he had expressed satisfaction with Drake's work in the past and plainly intimated that the Company was disposed to deny him employment because he had "been too active in union affairs." In short, I am persuaded that Drake's heart condition has not been a factor in the Company's decision to withhold employment from him, but, on the contrary, that the Respondent had seized upon the condition post hoc, ergo propter hoc as a pretext to deny Drake employment and as a means of concealing its real motivation for doing so. Similarly, I am unable to place any credence in the claim by Emil Myrmo that during the period following settlement of the strike, when Drake was "the next man up . . . on the seniority list," he was passed over for employment because the Company desired a "permanent operator" for the Axelson lathe, and Drake "could not perform his job on that particular machine." In the first place, it is undisputed that when the Axelson lathe was purchased Drake helped prepare it for operation and was the first machinist in the Company's shop to use the equipment. Secondly, Bevel conceded that Drake "could operate it [the Axelson lathe] and had worked on all the machines," although, according to Bevel, Drake required "a little more time and we had to watch the jobs a little . . . closer." Thirdly it is evident from Bevel's testimony that it has been necessary to use the Axelson lathe only a few ("several") times since the settlement of the strike (some 10 months before the hearing in this proceeding), and this testimony of itself suggests that the Respondent has exaggerated its need, since the strike, for a "permanent operator" of the lathe, and has resorted to the exaggeration as a pretext to deny Drake employment. But the exaggeration swings into full view when one takes into account the fact that Leister and Martin have been called to work, although as Bevel testified, neither operated the Axelson lathe to a greater extent than Drake prior to the strike, and, indeed, "never operate it very much"; that, as Emil Myrmo conceded, no "permanent operator" for the lathe has ever been hired since the strike; and that, as Emil also in effect admitted, the purpose of reemploying Leister and Martin was not to put them to work on the lathe. Certainly, if anything is clear in this proceeding, it is that the Axelson lathe had no connection with the fact that the Company called Leister and Mar- tin back to work, instead of Drake, thereby violating the terms of settlement of the strike. In sum, I credit testimony by Drake that he never had "any par- ticular difficulties" in operating the Axelson lathe, and that he was "never criti- cized" for any work he performed on it (the absence of such criticism is undis- puted), and I am convinced that the Company's professions of need for a machin- ist with greater ability than Drake in the operation of the lathe are only a pretext for denying him employment. Nor am I able to accept the claim that Pence told the management that Drake did not regard himself as "able to hold down a job" on the Axelson lathe. Against the background of the evidence of Drake's experience with the lathe, the Company's satisfaction with his work prior to the strike, and his numerous efforts to secure work at the Respondent's machine shop after the strike, I find credible Drake's denial (which Pence corroborates) that he ever made a statement to Pence to the effect that he did not consider himself qualified to take a job as operator of the Axelson lathe. I thus think it implausible that Pence would quote Drake to that effect to the management. For that reason, coupled with various shortcomings in Emil Myrmo's testimony, to which previous reference has 21 See General Counsel's Exhibit No. 2. GEO. MYRMO & SONS 267 been made, I do not credit Emil's claim that Pence told him that Drake did not regard himself as qualified "to hold down a job" on the Axelson lathe,22 and I find that no such alleged statement underlay any decision by the Company to withhold employment from Drake. As in Goodman's case, the Company has not supplied a credible explanation for its conduct in withholding job opportunities from Drake, and for its viola- tion of the terms of settlement of the strike which such conduct has entailed. The very fact that the explanation put forward does not stand up under inspec- tion aids an inference, which I draw upon consideration of the whole record, that the reasons advanced for withholding employment from Drake are nothing but a cloak to conceal an unlawful motivation for the Company's conduct in the premises. That motive stood revealed, I believe, on the occasion, on Decembet -17, 1957, when Bevel expressed the view to Drake that the latter had "been too active in union affairs for his own good." In the context in which this was said, it was tantamount to a statement that the Company was disposed to discriminate against Drake because of his strike activities. In view of his position, I think it likely that Bevel was privy to the management's attitude toward Drake. Cer- tainly, because of his position, his remarks are imputable to the Respondent, and one may regard them, as I do, as evidence of the Respondent's real attitude toward Drake. In sum, upon a full view of the record, I find that the Re- spondent has discriminated against Drake in the application of the terms of set- tlement of the strike because of Drake's strike activities; that on the respective occasions when the Respondent called Leister and Martin back to work, and gave them employment, instead of Drake, the Company discriminated against Drake in violation of Section 8(a)(3) of the Act; 23 and thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thus violating Section 8(a)(1) of the statute. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in con- nection with its operations described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent's conduct in discriminatorily failing and refusing to employ Henry Goodman and Leonard A. Drake, as found above, strikes at the heart of rights guaranteed employees by the Act.24 The rights involved are closely related to others guaranteed by Section 7 of the Act. In view of the nature of the unfair labor practices found above, there is reasonable ground to anticipate that the Respondent will infringe upon such other rights in the future unless appropri- 22 The Respondent called Sustello as a witness to support Fmil 's testimony concerning Pence's alleged statement . After repeated interrogation on the subject , and a substantial number of reiterations of statements to the effect that he could not recall what was said about Drake on the occasion in question , Sustello finally testified : "Well, he [Pence] mentioned that he had either talked or phoned Drake for that particular machine job. He didn't think-Drake didn 't think that he could handle the machine the way it should be handled to work. " Sustello seemed to me to be so deficient in recollection, and evi- denced such vagueness in his demeanor , that I am unable to place my reliance on his applicable testimony. 2s This includes a finding that the Respondent unlawfully discriminated against Drake when it gave Leister employment on July 18 and 19 , 1957, as well as in February 1958. On or about October 1 , 1957 , the Company hired a man named Len Beymer as a specialist. According to Pence, the Myrmo brothers told him before hiring Beymer that they wished to employ Beymer "because he owed them money, and that was the only way they could get it out of him ." It may be that that was the reason Beymer was hired. Bearing that in mind , as well as the fact that there is no evidence that the job given Beymer as a specialist was offered to Leister and Martin , I make no finding that the Respondent's failure to offer the job to Drake was rooted in a discriminatory motive. a N.L.R .B. v. Entwhistle MMfg. Co., 120 F. 2d 532 (C.A. 4). 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ately restrained. Therefore, in order to make effective the interdependent guar- antees of Section 7, I shall recommend an order below which will in effect re- quire the Respondent to refrain in the future from abridging any of the rights guaranteed employees by Section 7.25 Having found that the Company unlawfully failed and refused to employ Henry Goodman on September 16, 1957, and has since unlawfully failed and refused to employ him; and unlawfully failed and refused to employ Leonard A. Drake on July 18 and 19, 1957 (when the Company first employed Leister after the strike), and thereafter unlawfully failed and refused to employ Drake on February 3, 1958 (the date on which Martin resumed his employment), and has since unlaw- fully failed and refused to employ Drake, I shall recommend that the Respond- ent offer Goodman and Drake immediate and full reinstatement to their respec- tive former, or substantially equivalent, positions,26 without prejudice to their seniority and other rights and privileges, dismissing, if necessary to effectuate such reinstatement, any employee hired- by the Company for any such position since July 15, 1957, or with less seniority of service than Goodman or Drake in any position for which the said Goodman or Drake, as the case may be, is eligible for reinstatement under the terms of the order recommended herein; that the Respondent make Goodman whole for any loss of pay he may have suffered by reason of the discrimination against him, as found above, by payment to him of a sum of money equal to the amount of wages he would have earned, but for the said discrimination, between September 16, 1957, and the date of a proper offer of reinstatement to him as aforesaid; that the Respondent make Drake whole for any loss of pay he may have suffered by reason of the discrimination against him, as found above, by payment to him of a sum of money equal to the amount of wages he would have earned had he been employed on July 18 and 19, 1957, and the amount he would have earned between February 3, 1958, and the date of a proper offer of reinstatement to him as aforesaid; and that the loss of pay of Goodman and Drake be computed in accordance with the formula and method prescribed by the National Labor Relations Board in F. W. Woolworth Company, 90 NLRB 289, to which the parties to this proceeding are expressly referred. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following conclusions of law: CONCLUSIONS OF LAW 1. Emil A. Myrmo and Arthur Myrmo, individually, and as partners, doing business as Geo. Myrmo & Sons, are, and have been at all times material to this proceeding, employers within the meaning of Section 2(2) of the National La- bor Relations Act. 2. International Association of Machinists, Lodge 1311, AFL-CIO, is, and has been at all times material to this proceeding, a labor organization within the meaning of Section 2(5) of the said Act. 3. By discriminatorily failing and refusing to employ Henry Goodman and Leonard A. Drake, as found above, the said Emil A. Myrmo and Arthur Myrmo, partners, doing business as Geo. Myrmo & Sons, have engaged in and are en- gaging in unfair labor practices within the meaning of Section 8(a)(3) of the said Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the said Emil A. Myrmo and Arthur Myrmo, partners, doing business as Geo. Myrmo & Sons, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the said Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the said Act. [Recommendations omitted from publication.] °s May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U. S. 376; Bethlehem Steel Company v. N.L.R.B., 120 F. 2d 641 (C.A., D.C.). 261n accordance with the Board's past interpretation , the expression "former, or sub- stantially equivalent, position" is intended to mean "former position wherever possible, but if such position is no longer in existence , then to a substantially equivalent position." See The Chase National Bank of The City of New York, San Juan, Puerto Rico , Branch, 65 NLRB 827. CARPENTERS' DISTRICT COUNCIL OF ROCHESTER AND VICINITY 269 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Beard, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership by our employees in International Association of Machinists, Lodge 1311, AFL-CIO, or any other labor or- ganization, by failing or refusing to employ any employee or applicant for employment, or in any other manner discriminating against any employee or applicant for employment in regard to his hire, tenure of employment, or any .term or condition of employment, except as authorized by Section 8(a)(3) of the National Labor Relations Act. 'WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to join or assist International Association of Machinists, Lodge 1311, AFL-CIO, to bargain collectively through represent- atives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection , and to re- frain 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 employment, as authorized in Section 8(a)(3) of the Na- tional Labor Relations Act. Wn • WILL offer Henry Goodman and Leonard A. Drake immediate and full reinstatement to their respective former, or substantially equivalent, positions without prejudice to their seniority or other rights and privileges. WE WILL make Henry Goodman and Leonard A. Drake whole for any lose of pay they may ,have suffered as a result of the discrimination against them. All our employees are free to become, remain , or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act. GEO. MYRMO & SONS, Employer. Dated------------------- BBy-------------- --- (EMIn A. MYRM0) Dated-------------------- -By------------------------------------------- (ARTHUR MYRMO) This notice must remain posted for 60 days from the date hereof, and must not be .altered, defaced, or covered`by any other material. Carpenters' District Council of 'Rochester and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local Unions 72, 231, 240, 502, 662, 687, 1508, and 2407, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Anthony Schneider, Business Manager and Secretary-Treasurer [Rochester Davis-Fetch Corporation] and Glynn N. Osgood and Building Trades Employers' Division of the Builders Exchange of Rochester, New York, Party to the Contract. Case No. 3-CB-294. Deoem- ber '3, 1958 DECISION AND ORDER On February 24, 1958, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair 122 NLRB No. 88.