Ballas Egg Products, Inc.

342 DECISIONS -OF-NATIONAL LABOR -RELATidN& BOARD work to members of the Respondent Unions rather than to its own employees By this action, however, we are not to be deemed as making "an assignment" of the disputed work Because of the hazardous nature of the disputed work which should be performed without interference by jurisdictional conflicts, the Company urges the Board to assign the work to the IBEW and to recognize that labor organization as the exclusive bargaining agent of the Company's employees The IBEW never has, nor does it now, represent the Company's electrical painters, and the international president of the IBEW declines to sign the tentative agreement with the Company The IBEW has never been certified as the bargaining `representative We therefore deny the Company's request for such an affirmative work award 6 DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act 1 Local 243, Brotherhood of Painters, Paperhangers and Dec- orators of America, AFL-CIO, and International Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO, and their agents, are not and have not been lawfully entitled to force or require Richardson Paint Company, Inc , to assign the work in dispute to members of Local 243, rather than to Richardson Paint Company, Inc 's, own employees 2 Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 243 and International Brotherhood of Paint- ers, Paperhangers and Decorators of America, AFL-CIO, shall notify the Regional Director for the Sixteenth Region, in writing, whether or not they will refrain from forcing or requiring Richardson Paint Company, Inc, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute to their members rather than to employees of Richardson Paint Companiy, Inc 6In declining to make an affirmative work award we respectfully disagree with the decision of the United States Court of Appeals for the Third Ca.cuit in N L R B v United Association of Journeymen and Apprentices, etc (Frank Hake), 242 F 2d 722 See Newark & Roses Plastering Go, 121 NLRB 1094 Ballas Egg Products, Inc and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 346, AFL- CIO. Came No 8-CA-1550 November 25, 1959 DECISION AND ORDER On July 27, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 125 NLRB No 46 BALLAS EGG' PRODUCTS, INC. 343 spondent had engaged in and was engaging inn 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 ex- ceptions to the Intermediate Report and a supporting brief.. 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 Intermedi- ate 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 modification. The Trial Examiner found that the Respondent violated Section, 8 (a) (3) and (1) of the Act when, during an economic strike, it, changed its seniority policy to accord superseniority to nonstrikers, whereby they would receive preference in future layoffs over rein- stated strikers, and thereafter laid off 11 reinstated strikers pursuant to this new policy who otherwise would have retained their jobs. While we concur in the Trial Examiner's ultimate finding of a viola-. tion in this case, we do not rely upon all of his legal grounds for do- ing so. In the summer of 1957, the Union embarked upon an organizational- campaign among Respondent's employees. Coincidentally, the Re- spondent interrogated its employees concerning their union activities, threatened to shut the plant down if the employees selected the Union as their bargaining agent, encouraged the formation of a labor organ- ization of Respondent's choosing, and transferred an employee because of activities on behalf of the Union. In a complaint proceeding based, upon this conduct, the Board found that the Respondent infringed upon its employees right to choose the Union as its bargaining agent and to engage in concerted activities in violation of Section 8 (a) (1) of the Act.' On'. July 3, 1958; the Union struck the Respondent. Some 83 em- ployees joined the strike while 75 remained at work. Only July 5, the Respondent assembled the nonstrikers in the plant and informed them that they would be given preference in retention in future layoffs over new hires and strikers who might later return to work. While the Respondent contends that it believed this policy would keep the plant in operation, it did not relate this belief to the nonstrikers when the policy was announced. Nor did it inform the strikers of this new policy until a year later when the events giving rise to this charge. occurred. The strike terminated on July 19 without any 'replacements being hired or sought during the strike period. With the end of the dispute, the strikers required reinstatement. Because the Respondent's opera- 1 Balla8 Egg Products, Inc., 121 NLRB 873. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions were nearing their seasonal close, the Respondent had need for only 14 strikers. These were reinstated and the remainder were placed on a preferential hiring list. With the start of the new season in Feb- ruary 1958, the Respondent found it necessary to lay of 12 employees on July 25, 1958, and 2 additional employees on August 1, 1958. In line with its new superseniority policy, the Respondent selected 14 strikers for layoff. This was the first time that the strikers were informed of this policy. It was stipulated that, if the Respondent's former seniority policy had been utilized in this layoff, 11 of the 14 would have retained their jobs. We conclude, as did the Trial Examiner, that the Respondent's motivation in adopting, maintaining, and utilizing its superseniority policy was impelled by antiunion considerations rather than by any economic interest of its own, and that this case is controlled by the Board and court decision's in California Date Growers Association' and Mathieson Chemical Corporation and/or Olin Mathieson Chemi- cal Corporation.' As in the California Date Growers case, the Respondent's discriminatory motive was evidenced by unfair labor practices which occurred immediately prior to the announcement of its superseniority policy. And, as in the Olin Mathieson case, the illegality of Respondent's motivation stems from the fact that it neither hired nor sought replacements during the strike, and the fact that there is no probative record evidence that the adoption and an- nouncement of the superseniority policy was necessary to entice the nonstrikers to remain at work. For these reasons, we find that the Respondent violated Section 8(a) (1) and (3) of the Act by the adop- tion, maintenance, and utilization of the superseniority policy which resulted in the layoff of the 11 reinstated strikers. In view of our finding above, we deem it unnecessary to, and do not, pass upon the Trial Examiner's further finding that the Respondent's conduct was unlawful under the Board's holding in Potlatch Forests, Inc.4 In our opinion, the facts herein are distinguishable from those involved in Potlatch. 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 Relations Board hereby orders that the Respondent, Ballas Egg Products, Inc., Zanesville, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or lawful activities on behalf of, Amalgamated Meat Cutters and Butcher Workmen of North 9 118 NLRB 246 , enfd. 259 F. 2d 587 (C.A. 9). 3114 NLRB 486, enfd. 232 F. 2d 158 (C.A. 4). 4 87 NLRB 1193. BALLAS EGG PRODUCTS, INC. 345 America, Local No. 346, AFL-CIO, or any other labor organization, by discriminatorily laying off any of its employees, or discrimina- •torily reducing the seniority of employees, or in any like or related manner discriminating in regard to their hire or tenure of employ- ment or any terms or conditions of their employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self -organiza- tion, to form or join labor organizations, to assist the above-named or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection, and 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 employment, as authorized in 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) Rescind forthwith its discriminatory seniority policy, main- tained since its announcement on July 5, 1957, and restore all strikers who sought reinstatement to the seniority they would have enjoyed absent such discriminatory policy. (b) Offer to Hazel E. Ramey, Edna Derwacter, Ada Robinett, Della Churchill, Grace Walker, Helen Howard, Grace Hardin, Bessie Cros- ton, Sarah Colborn, Mae McHenry, and Delcie M. Lewis immediate and full reinstatement on the basis of their restored seniority to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (c) Make whole the above-named and all other discriminatees whose seasonal hiring was delayed, or whose seasonal layoffs were accelerated, or who suffered loss of employment because of Respond- ent's discriminatory seniority policy, for any loss of wages incurred as a result of the application of this seniority policy. (d) Preserve and make available to the Board or 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 under the terms of this Order. (e) Post at its place of business in Zanesville, Ohio, copies of the notice attached to the Intermediate Report marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's 8 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." 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, be posted by the Respondent and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Eighth Region in writing, -within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 346, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued a complaint, dated February 26, 1959, against Ballas Egg Products, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent laid .off and refused to reinstate certain named employees because of their union and .concerted activities in violation of Section 8(a) (3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its duly filed answer, Respondent admits the layoff of the named employees but denied the unfair labor practice allegations. Pursuant to due notice, a hearing was held on April 15, 1959, at Zanesville, Ohio. All parties were represented at the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. After the close of the hearing, the Respondent filed a brief which I have fully considered. Upon the entire record I in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation with its principal office and place of business located at Zanesville, Ohio, where it is engaged in the purchase, freezing, and sale of eggs. Respondent has annually sold and shipped products, valued at in excess of $100,000, to points located outside the State of Ohio. Upon the above admitted facts, I find, as Respondent admits in its answer, that :Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that Amalgamated Meat :Cutters and Butcher Workmen of North America, Local No. 346, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issue in this case is whether Respondent violated Section 8(a)(1) and (3) of the Act by changing, during a strike, its selection for layoff policy to give prefer- I After the close of the hearing,'the General Counsel filed a motion to correct the record in certain respects. No opposition to this motion has been filed by any of the parties. .The motion is accordingly granted and I hereby correct the record in the following respects : On ,page 20, line 18, "with" is corrected to read "without." On page 27, line 2, "concentrating with due reference" is corrected to read "constrained with due reference to the court." On page 28, line 13, "ensued" is corrected to read "insured." . BALLAS EGG PRODUCTS, INC. 347 ence to nonstrikers over strikers who might later return to work and by thereafter maintaining in effect this new seniority policy and laying off 14 strikers, who were reinstated after the termination of the strike, pursuant to its new policy. A. The admitted facts The facts giving rise to this issue are not in dispute, as all parties entered into a stipulation in this respect. Respondent has been engaged at its Zanesville, Ohio, plant in the processing and sale of eggs since 1943. Its operations are seasonal, with the period from February to July generally being the peak employment months. Respondent's employees have never been represented by any labor organization for collective-bargaining purposes. During .the summer of 1957 the Union commenced an organizational campaign among Respondent's production and maintenance employees and on July 3 called a. strike and established a picket line at Respondent's plant. About 75 of the then 206 production and maintenance employees continued to work during the strike, which continued until July 19, 1957, when the Union called off the strike and re- quested Respondent to reinstate all the strikers. Although no strikers had been replaced during the strike, Respondent was able to reinstate only 14 of the 83 strik- ing employees who sought reinstatement because this was the declining period of Respondent's seasonal business. The selection of striking employees for reinstate- ment was accomplished in the following manner: All 83 striking employees who sought reinstatement were permitted to punch in on the plant timeclock on Monday morning, July 22, 1957. The first 14 who clocked in in this manner were assigned the available jobs. The remaining 69 returning strikers, for whom no jobs were immediately available, were informed by Respondent's production manager that they would be recalled, when work became available, in the order in which they had punched the time clock that morning. Their names were placed by Respondent in that order on a preferential hiring list. On July 5, 1957, while the strike was still in progress, Respondent's president, James Benincasa, called a meeting in the plant of the 75 employees who were continuing to work despite the strike, and informed them that they would be given preference with reference to retention in case of future layoffs over new hires or striking employees who might later return to work. The purpose of calling this meeting was to tell the 75 nonstriking employees of Respondent's plan to give them superseniority as against the striking employees. Respondent felt that this plan would keep the plant operating but did not communicate its feeling to the assembled nonstriking employees. No further use was made by Respondent of the preferential hiring list of the 69 names of returned strikers until January 21, 1958, when the next busy season was beginning. On that date Respondent recalled the first 19 on this preferential hiring list. No additional employees were recalled by Respondent during 1958. Neither the 19 strikers recalled on January 21, 1958, nor the 14 strikers who were reinstated immediately upon termination of the strike on July 22, 1957, were ever informed by Respondent that the seniority of the striking employees would be re- duced below that of the nonstrikers, or of any change in Respondent's layoff policy from that followed by Respondent in previous years. In all prior years, Respondent's regular policy in effecting seasonal layoffs was to select first from among the new employees hired during the current year on the basis of merit (primarily the factors of production and attendance) and next from among employees who had worked for Respondent in previous years on the basis of seniority. Because of the seasonal decline, Respondent found it necessary to lay off 12 employees on July 25, 1958, and two more on August 1, 1958. At this time, con- trary to the Respondent's layoff policy followed in previous years, but in keeping with the new seniority plan adopted by Respondent during the strike and announced to the 75 nonstriking employees on July 5, 1957, Respondent laid off 14 striking employees in the reverse order in which they had clocked in and had returned to work following the termination of the strike. No nonstrikers nor any employees who returned to work during the strike were included among the 14 employees laid off. Eleven of the fourteen employees would not have been laid off on July 25 and August 1, 1958, if Respondent at that time had made its selection for layoff on the basis of its policy in effect prior to the strike of 1957.2 Three of the fourteen laid-off 'These are the following 11 listed in paragraph 5 of the amended complaint : Hazel E. Ramey , Edna Derwacter, Ada Robinett, Della Churchill , Grace Walker, Helen Howard, Grace Hardin , Bessie Croston , Sarah Colborn , Mae McHenry, and Delcie M. Lewis. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees would have been laid off on July 25, 1958, on the basis of Respondent's layoff policies prior to the strike? B. The applicable decisions The Board has had occasion, in several decisions, to pass upon the legality of a policy which accords a form of superseniority to nonstrikers or strike replacements as against strikers. This issue first arose in Potlatch Forests, Inc., 87 NLRB 1193. In that case, before the settlement of an economic strike, the company advocated a policy of according a form of superseniority for layoff purposes to new employees hired during the strike and to those strikers who crossed the picket line and returned to work before a certain date as against those employees who remained out on strike until its termination. Upon settlement of the strike, the company adopted this policy, maintained it thereafter, and subsequently laid off two employees pur- suant to this policy who would not have been laid off had this policy not been in effect. The Board found that the company's application of this discriminatory seniority policy and the layoff of the two employees pursuant thereto was violative of Section 8(a) (1) and (3) of the Act (pp. 1210-1211). In arriving at this finding, the Board regarded as irrelevant the fact that there was no independent evidence to show that the company's true motive in adopting and applying this seniority policy was to penalize those who remained on strike until its termination. Thus, the Board stated (at p. 1210) that "it is now well settled that a seniority policy which classified employees according to whether they had worked during a strike, or had not, to the detriment of the relative seniority standing of those who had not, discriminatorily and illegally impairs the employment relationship of those who had exercised their right under the Act to engage in concerted activities." The Board's findings in the Potlatch case were reversed by the Court of Appeals for the Ninth Circuit (189 F. 2d 82). The court was of the opinion that the Board's findings could not be maintained on the basis that "the maintenance of the strike seniority policy, in and of itself constitutes an unfair labor practice." (Emphasis supplied.) The court pointed out that Potlatch had "exhibited no anti-union prej- udices" and that there was no evidence to support a finding that the true purpose motivating Potlatch's adoption of the "strike seniority" policy was a desire to penalize those who remained on strike until its termination. The court therefore concluded that "the `discrimination' between replacements and strikers is not an unfair labor practice despite a tendency to discourage union activities, because the benefit conferred upon the replacements is a benefit reasonably appropriate for the employer to confer in attempting `to protect and continue his business by supplying places left vacant by strikers' " (189 F. 2d 82, at p. 86). This issue next arose in Mathieson Chemical Corporation and/or Olin Mathieson Chemical Corporation, 114 NLRB 486, where the Board found that respondent violated Section 8 (a) (1) and (3) of the Act with respect to its new superseniority policy because the Board was satisfied from the facts in the case that respondent's motivation was discriminatory. In this case, unlike the Potlatch case, no new em- ployees were hired during the strike, and the superseniority policy in favor of non- strikers and those who returned to work during the strike was first announced and applied after the strike had terminated. The Board distinguished the Potlatch case primarily on the ground that in the Olin Mathieson case it was not until the strike was over and all the strikers had been put back to work, that "Respondent for the first time decide[d] to separate its employees into two seniority groups for layoff purposes, depending on whether or not they had returned to work before the end of the strike." (Emphasis in the decision.) The Board also pointed out that "there is no suggestion in the record that , as an economic measure to get employees to work during the strike, it [respondent] had promised the superseniority." From these facts the Board concluded that "the Respondent's change of seniority policy and its consequent dismissal of the complainants were in fact motivated, not by any legitimate economic interests of its own, but by a desire to punish the com= plainants for exercising the right guaranteed in Section 7 to engage in concerted activities, and a wish to reward the other employees for abandoning or not par- ticipating in the strike." While the Board was of the unanimous opinion that the Potlatch case is distinguishable on its facts, Board Members Rodgers and Murdock stated that "in any event" they were constrained, with due deference to that court, to disagree with the court's decision in that Potlatch case to the extent that it may conflict with their hidings in the Olin Mathieson case (at p. 488, footnote 3). s These are the following three listed in paragraph five of the amended complaint: Margaret Wiseman, Anna M. Stewart, and Patricia A. Heller. BALLAS EGG PRODUCTS, INC. 349 The Board's findings in the Olin Mathieson case were affirmed by the Court of Appeals for the Fourth Circuit (232 F. 2d 158) and by the United States Supreme Court (352 U.S. 1020). In its opinion, the Court of Appeals for the Fourth Circuit pointed out that the facts were distinguishable from those in Potlatch case and further indicated its disagreement with the court's opinion in that case. The court stated that no replacements were hired during the strike in the Olin Mathieson case and that it was not a case where the respondent promised permanent tenure during a strike "in order to get replacements," pointing out that, while a strike is in progress, "it is then proper for an employer , who might be unable to procure replacements save upon a promise of permanent tenure, to promise such tenure to replacements." (Emphasis supplied.) The most recent decision dealing with this issue is California Date Growers Asso- ciation, 118 NLRB 246. In that case, respondent adopted a new seniority policy about 3 months after the termination of the strike, which policy consisted of reducing the seniority of striking employees below that of nonstriking employees and strike replacements. The Board rejected respondent 's contention that its action was necessary for economic reasons, and found that its purpose in reducing the seniority of the strikers was to punish them because they chose to strike rather than work, in violation of Section 8(a)(1) and (3) of the Act (at pp. 249-250). In finding the respondent's unlawful motivation, the Board relied on the fact that the new seniority policy was first adopted after the termination of the strike, that respondent had committed other unfair labor practices about the same time, that respondent did not mention a word about the loss of seniority to those strikers who were offered reinstatement after the strike, and that the record was devoid of any evidence that respondent found it necessary to promise superseniority to its employees in order to continue operations despite the fact that respondent had assured the nonstrikers and replacements, who expressed concern over their job security during the strike, that they "would be maintained if and when the strike was terminated." Although the Board distinguished the Potlatch case on its facts, it specifically stated that it did not pass upon the applicability of the Board 's decision in that case. However, Board Member Murdock noted his continued disagreement with the court's opinion in that case (at p. 250, footnote 6). The Board's findings were affirmed by the Court of Appeals for the Ninth Circuit (259 F. 2d 587 ) which distinguished the Potlatch case on its facts, holding that "the motive of the employer in carrying out these actions become the controlling factor" and that "the Board's finding that Respondent was motivated by a desire to punish the strikers is supported by substantial evidence ." (Emphasis in decision.) C. Analysis and concluding findings As hereinabove stated, the Board has held in the Potlatch Forests, Inc., case that the promulgation and application of a seniority policy which accords greater seniority for layoff purposes to nonstrikers and new employees hired during a strike as against strikers who remain out on strike until its termination, is, in and of itself, unlawful and discriminatory in violation of Secton 8(a)(1) and (3) of the Act. Although in the subsequent decisions, hereinabove discussed, the Board has distin- guished the Potlatch case on its facts, the Board has pointedly refrained from over- ruling its Potlatch decision. As the Board has announced that "it remains the Trial Examiner's duty to apply established Board precedent which the Board or the Supreme Court has not reversed," 4 I have no alternative but to follow the Board's decision in the Potlatch case. Accordingly, I find that by maintaining 5 in effect and applying its new seniority policy of according superseniority to nonstrikers over strikers and by laying off, on July 25 and August 1, 1958, pursuant to this new policy, the 11 complainants 6 who would not have been laid off on the basis of the policy in effect prior to the strike, Respondent violated Section 8(a)(1) and (3) of the Act. However, my finding need not rest on the Board's decision in the Potlatch case. For the instant case, like the Olin Mathieson and California Date Growers cases, is distinguishable from the Potlatch case because there is evidence in the instant record which convinces me that Respondent's action was unlawfully motivated. *Novak Logging Company, 119 NLRB 1573, 1575, 1576; Scherrer and Davis8on Logging Company, 119 NLRB 1587, 1589. 41 make no unfair labor practice finding with respect to the promulgation and announce- ment of the new seniority policy because it occurred more than 6 months before ,the filing of the charges in. this case (Section 10(b) of the Act). A These are named in footnote 2, supra. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, during the month preceding the strike the Respondent openly demonstrated its antiunion bias by engaging in conduct which the Board found 7 unlawfully dis- criminated against employees because of their activities on behalf of the Union and infringed upon their statutory rights to select the Union as their bargaining representa- tive and to engage in union and concerted activities . Specifically , the Board found that Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act by unlawfully interrogating employees concerning their union activities, by threatening to shut the plant down if employees chose the Union as their bargaining representative, by encouraging the formation of a labor organization of Respondent's own choosing, by promising awards to employees for forming such a labor organization, and by discriminatorily transferring an employee just 2 days before the strike because of her activities on behalf of the Union . As the Board pointed out in the California Date Growers case ( 118 NLRB at p. 249 ), "such clear and unwarranted violations of the Act cannot be ignored in assessing Respondent's motivation for an additional act of discrimination," occurring about the same time. It is this element of antiunion bias which the court pointed out was lacking in the Potlatch case. Moreover, although, as in the Potlatch case, respondent announced its super- seniority policy to the nonstrikers while the strike was still in progress , the record in the instant case, like the records in the Olin Mathieson and California Date Grow- ers cases, contains no evidence that the Respondent found it necessary to promise superseniority to the nonstriking employees in order to continue its operations. The change in seniority policy was announced on July 5 , 1957, just 2 days after the com- mencement of the strike. At that time, 75 employees , who had not gone out on strike, were going through the picket line and performing their regulax work. Respondent made no effort to hire new employees to replace the strikers . Nor were the nonstrikers who remained at work regarded as strike replacements ; for, the Respondent stipulated that no strikers were replaced during the strike. These 75 employees were therefore old regular employees who could not be, and had no ap- prehension of being, replaced by any returning strikers . Indeed, some of them even had seniority over some of the strikers .8 There is no showing of any requests by any of these employees for assurances of additional job security as against the strikers or of any threats by these employees to discontinue their practice of going through the picket line and performing their regular work. On the contrary, Respondent was aware of the existence of an antiunion employee faction gat the plant and had permitted the solicitation of employee signatures to a "Petition against union" in July before the commencement of the strike (Ballas Egg Products, supra) .9 In addition, these 75 employees constituted practically the full complement necessary to carry on Respondent's operations , as the business was in its declining season.lo Of its own accord, and without any need therefore being shown , Respondent gratuitously assembled the nonstrikers for the sole purpose of informing them of its plan to accord them superseniority over the strikers . Nor, as in the California Date Growers case, did Respondent ever mention a word about loss of seniority to the strikers who, after the termination of the strike , were offered reinstatement on July 22, 1957, and January 21 , 1958. Thus, this is not the kind of a case mentioned by the circuit court in its Olin Mathieson opinion, where the court stated , by way of dictum, that with a strike in progress "it is then proper for an employer , who might be unable to procure replacements save upon a promise of permanent tenure, to promise such tenure to replacements ." ( Emphasis supplied.) Upon the entire record considered as a whole, I am convinced and find that Respondent's change of its seniority policy, and its continued maintenance and ap- plication thereafter were motivated , not by any legitimate economic interests of its own, but by a desire to punish the strikers for exercising the rights guaranteed in Section 7 of the Act and a wish to reward the nonstrikers for not participating in the strike, This unlawful motivation is not refuted by Respondent 's unexpressed feeling, not communicated to any employees , that its action would keep the plant in operation. Accordingly, I find that by maintaining in effect and applying its new 71 take official notice of the Board's decision in Bailas Egg Products, Inc., 121 NLRB 873, where these findings appear. s This is apparent from the fact that three of the strikers laid off on July 25, 1958, would have been laid off on that date even on the basis of Respondent 's layoff policies prior to the strike. 90n August 15, 1957 , an election was held in which 81 votes were cast against the Union. 10 At the termination of the strike 2 weeks later , Respondent had work available for only 14 strikers. BALLAS EGG PRODUCTS, INC. 351 seniority policy of according superseniority to nonstrikers over strikers and by laying off, on July 25 and August 1, 1958, pursuant to this new policy, the 11 complain- ants II who would not have been laid off on the basis of the policy in effect prior to the strike , Respondent violated Section 8 (a) (1) and ( 3) of the Act.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (3) of the Act by maintaining in effect its changed selection for layoff policy to give superseniority to nonstrikers over strikers and by laying off certain named strikers pursuant to this new policy, I will recommend that Respondent forthwith rescind its discriminatory seniority policy, announced on and maintained since July 5, 1957, and restore all the strikers who sought reinstatement on July 22, 1957, to the seniority they would have enjoyed absent such discriminatory policy. I will also recommend that Respondent offer reinstatement, on the basis of their restored seniority, to the 11 employees 13 who would not have been laid off on July 25 and August 1, 1958, absent such discriminatory policy, and to make whole all discriminatees whose seasonal hir- ing was delayed, or whose seasonal layoffs were accelerated, or who otherwise suf- fered loss of employment because of Respondent's seniority policy, for any loss of wages incurred thereby.14 The amount of back pay due shall be computed according to the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289. Pay- roll and other records in possession of the Respondent are to be made available to the Board, or its agents, to assist in such computation. Uponthe basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 346, AFL-CIO, 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 , and condi- tions of employment , of certain named employees , thereby discouraging membership in the aforesaid labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the aforesaid conduct and by maintaining in effect a discriminatory policy of according superseniority to nonstrikers over strikers , Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby 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.] 11 Named in footnote 2, supra. Olin Mathieson and California Date Growers cases, supra. 13 See footnote 2, supra. 11 Olin Mathieson Chemical Corporation and California Date Growers Association, supra. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in, or lawful activities on behalf of, Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 346, AFL-CIO, or any other labor organization, by discriminatorily laying off any of our employees, or discriminatorily reducing the seniority of our em- ployees, or in any like or related manner discriminating in regard to their hire or tenure of employment or any terms or conditions of their employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form or join labor organizations, to assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to en- gage in concerted activities for the purpose of collecitve bargaining or other mutual aid of protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL rescind our discriminatory seniority policy which we have main- tained since July 5, 1957, and will restore all strikers who sought reinstatement to the seniority they would have enjoyed absent such discriminatory policy. WE WILL offer to the following named employees immediate and full rein- statement, on the basis of their restored seniority, to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges: Hazel E. Ramey Grace Walker Sarah Colborn Edna Derwacter Helen Howard Mae McHenry Ada Robinett Grace Hardin Delcie M. Lewis Della Churchill Bessie Croston WE WILL make whole the above-named and all other discriminatees whose seasonal hiring was delayed, or whose seasonal layoffs were accelerated, or who suffered loss of employment because of our discriminatory seniority policy, for any loss of wages incurred as a result of the application of this seniority policy. BALLAS EGO PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Celanese Corporation of America and Textile Workers Union. of America, AFL-CIO. Case No. 9-CA-15.5. November 05,1959 DECISION AND ORDER On June 16, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in this proceeding, finding that the Respondent had engaged 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 Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report, the excep- 125 NLRB No. 43.