Valley Die Cast Corp.

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (by the Eighth Circuit). The Court provided a construction of that term, and the whole section in keeping with the basic policy of the amended Act, namely, "to insulate employees' fobs from their organi- zational rights." 53 By such a reading, the Court gave effect to the main thrust of the entire section, which is to protect employees in their hire or tenure of employment; and this was accomplished by equating the word "membership" with the status or right to be pro- tected from being discharged-a status which could not be interfered with so long as the employee tendered the requisite periodic dues and fees. Conversely, "nonmembership" was equated to a status which resulted only from a failure to tender such dues and fees, and which rendered the delinquent "nonmember" employee subject to being discharged.54 In view of the foregoing, we are unable to see how our colleagues can distinguish the instant agency-shop proposal from any other union-security proposal which predicates a right of discharge only upon an employee's failure to tender the equivalent of regular union dues and intintion fees. The Union sought to bargain concerning a clause which would leave the final decision as to membership or non- membership with each individual employee, at his option, but never- theless, to condition employment upon the payment of sums of money which would constitute each employee's "share of financial support." In our opinion, such a proposal fully comports with the congressional intention in Section 8(a) (3) for the allowance of union-security con- tracts, and, therefore, is a mandatory subject as to which the Respond- ent is obliged to bargain. Consequently, we would find that the Respondent violated Section 8 (a) (1) and (5) of the Act, as alleged.55 53 347 U.S. at 40. 64 As stated by Senator Taft , "In other words, what we do, in effect, is to say that no one can get a free ride in such a shop . . . . The employee has to pay the union dues." [Emphasis supplied.] 93 Congressional Record 3953 , April 23, 1947. 55 It Is beyond the Board's authority to tell the parties what specific result they should reach In bargaining. N.I.R.B. v. American National Insurance Co., 343 U.S. 395 . Accord- ingly, by concluding that the proposed agency-shop agreement is a lawful and mandatory subject for bargaining, we would not impose a duty upon the Respondent to execute such an agency-shop clause, or any other clause ; the duty imposed would go no further than to direct the Respondent, upon request, to bargain in good faith. Valley Die Cast Corp. and Murray F. Robertson, Edward Torosian, Michael Polizzi and George M. Roberts and District Lodge No. 60, International Association of Machinists , AFL- CIO. Case No. 7-CA-2592. February 00, 1961 DECISION AND ORDER On July 25, 1960, Trial Examiner Arnold Ordman issued his Inter- mediate Report in the above-entitled proceeding, finding that the 130 NLRB No. 66. VALLEY DIE CAST CORP. 509 corporate Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action. The Trial Examiner also found that Respondents Murray F. Robertson, Edward Torosian, Michael Polizzi, and George M. Roberts had not engaged in unfair labor practices in their individ- ual capacities. These findings, conclusions, and recommendations are more fully set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and briefs in support thereof. 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 Rodgers 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 this case, including the Intermediate Report, the exceptions and briefs, and hereby adopts 1 the Trial Examiner's findings, con- clusions, and recommendations, except as herein modified. 1. The Trial Examiner found that the evidence failed to establish misconduct on a nature serious enough to warrant denial of job rein- statement to all strikers. We do not agree. We find that there is suffi- cient evidence of misconduct on the part of Randolph Yamin to dis- qualify him for reinstatement. This is reflected in his participation in the prevention of the maintenance workers from entering the plant on the night of October 14, 1959. Yamin is identified by uncontra- dicted testimony as having said : "Nobody is getting into this plant," and "The only way they are going to cross here is over my dead body." In our opinion, the foregoing warrants a denial to Yamin of rein- statement, even in the event he has not been replaced by the corporate Respondent. 2. The Trial Examiner found that those strikers discharged on October 15 and 16, 1959, had not been replaced prior to discharge, but recommended that the question whether strikers discharged there- after had been replaced prior to discharge be left to compliance pro- ceedings. No exception was taken to this latter recommendation. As there is no exception to having the reinstatement rights of some of the strikers determined at the compliance stage and as the record is not wholly clear as to when Respondent began hiring replacements, we shall in these circumstances leave to compliance proceedings determi- nation of the reinstatement rights of all the strikers. 1 The Respondent's request for oral argument is hereby denied as the record, including the exceptions and briefs, adequately presents the issues and the positions of the parties. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Respondent, Valley Die Cast Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in District Lodge No. 60, Interna- tional Association of Machinists, AFL-CIO, or in any other labor organization of its employees, by discharging or in any other manner discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment, except as permitted by the proviso to Section 8(a) (3) of the Act. (b) Interfering with, restraining, or coercing its employees be- cause of their exercising of their right to engage in a lawful strike. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer the 71 individuals listed in Appendix A, attached hereto, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges in the manner set forth in the section of the Intermediate Report entitled "The Remedy" (as modified) except to the extent any of them were permanently replaced prior to their dis- charge. (b) Make whole all the aforesaid individuals for any loss of pay they may have suffered as a result of the discrimination against them in the manner set forth in the section of the Intermediate Report en- titled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to determine the amounts of backpay due and the rights of employment under the terms of this Order. (d) Post all the site of its operations in Detroit, Michigan, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Seventh Re- gion, shall, after being duly signed by Respondent Valley Die Cast Corp.'s authorized representative, be posted by Respondent Valley Die Cast Corp. immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Valley Die Cast Corp. 2 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." VALLEY DIE CAST CORP. 511 to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleged that Murray F. Robertson, Edward Toro- sian, Michael Polizzi, and George M. Roberts, individuals, have vio- lated Sections 8(a) (1) and (3) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in District Lodge No. 60, International Association of Machinists, AFL-CIO, or in any other labor organization of our employees by discharging or in any other manner discriminating against any of our employees in regard to hire or tenure of employment or any term or condition of employment, except as permitted by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT interfere with, restrain, or coerce our employees because of the exercise of their right to engage in a lawful strike. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent po- sitions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay suffered as a result of the discrimination except to the extent that any of them were permanently replaced prior to their discharge. Daisy Scott Willie Davis Joaquin Castillo Edmund Bojarski James Johnson Marcia Jankowski Jacqueline Socula Albert Garcia Ernesto Chavez Francisco Villaruel Thelma Rose Lora Ray Wamble Gaetano Currao Arnold Salyer Billy Adkins Irene Goodman Bernice Wienke Dorothy Waldrip Oran Darnell Margy Smith Emogene Potter Corrinne Breeding Alphonse Vandevelde Emmet Adkins Linda Scott Mary Mabee 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William Bowman Jimmie Call Margaret Laquinto Frankie Harper Shirlee Call Luis Luna Lizzie White Clifford White Grace Ferranti Billy Harper Lessie Newsome William Cardella Bernice Lipinski Adolph Gonzales Charles Sadler Buddy Darnell Alger Stancey Benedict Siragusa James Carroll William Lafave Gene Massey Lee Gabriel Bob Crowder Melvin Coates Harold Moch Anne Jarrait Hugo Wienke Herbert Hickey Delsie Henderson Joseph Yamin Jack Call Chester Kierpaul John Wiedman James Springer Robert Allen Joseph Edwards Earl Cole Peter Orlando Donna Demeyer Franklin England Lodovico Iannetta Rosario Stice Lawrence Vitale Antonio Vitale Dudley Young VALLEY DIE CAST CORP. 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding arose upon a complaint issued by the General Counsel of the Na- tional Labor Relations Board alleging in substance that Valley Die Cast Corp and certain of its officers and agents, named as individual Respondents, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), by discharging and refusing to reinstate 60 strikers listed in an appendix to the complaint. In due course an answer was filed in behalf of all the Respondents denying the com- mission of unfair labor practices. A hearing upon the complaint and answer was held before the duly designated Trial Examiner in Detroit, Michigan, on April 20 and 21, 1960 General Counsel and the Charging Party, District Lodge No 60, International Association of Ma- chinists, AFL-CIO, herein called the Union, were respectively represented by counsel. Respondents, with one exception, were likewise represented by counsel.' At the 'The exception was George M. Roberts At the outset of the hearing Respondents' counsel, who had previously filed an answer in behalf of the named Respondents withdrew his appearance as to Roberts on the ground that the latter was no longer employed by Valley Die Cast Corp and that his whereabouts were unknown to Respondents' counsel. Roberts did not appear throughout the hearing either personally or through a representative. VALLEY DIE CAST CORP. 513 beginning of the hearing General Counsel moved to amend the complaint by adding an allegation to paragraph I1 thereof that the strikers had unconditionally offered to return to work on October 21, 1959, as well as on October 26 and 27, 1959, as pre- viously alleged. General Counsel also moved to amend the complaint by adding 12 more names to the 60 already listed in the appendix to the complaint.2 The Trial Examiner, over the objections of Respondents, granted the motions to amend.3 Full opportunity was afforded the parties to present evidence, to examine and cross-examine witnesses , to present oral argument , and to file briefs as well as pro- posed findings of fact and conclusions of law. Briefs have been filed by General Counsel and by counsel for Respondents and have been carefully considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS INVOLVED Valley Die Cast Corp., herein called Valley, is a Michigan corporation having its principal office and place of business in Detroit, Michigan, where it is engaged in the manufacture and sale of automotive die-cast hardware and related products. Mur- ray F. Robertson, Edward Torosian, Michael Polizzi, and George M. Roberts, indi- viduals, were at all times here material agents of Valley. During the calendar year preceding the hearing, Valley in the course of its busi- ness operations purchased raw materials valued in excess of $800,000, of which ap- proximately 50 percent was shipped to its plant in Detroit, Michigan, from points outside the State of Michigan. During the same period Valley sold finished products valued in excess of $11/2 million of which 20 percent was shipped from Detroit to points outside the State of Michigan. Respondents admit, and I find, that Valley is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED District Lodge No 60, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Chronology of events In September 1959 the Union started an organizational campaign among the em- ployees of Valley. Pursuant to this campaign the Union wrote to Valley on Sep- tember 22, 1959, claiming majority representation among the employees and 2 days later filed a petition with the National Labor Relations Board asking for certification as their bargaining representative. While this representation petition was pending before the Board, the Union scheduled a meeting of the employees for the afternoon of October 14, 1959. The meeting was originally called to discuss the status of the representation proceeding on which a hearing was to be held. However, during the afternoon of October 14 and prior to the scheduled meeting a number of employees in the diecasting department of Valley had been laid off due to notice from a cus- tomer of Valley that a cutback in orders could be expected. Accordingly, at the union meeting, following the discussion of the pending representation proceeding, the layoff and the possibility of further layoffs came up for discussion as did other complaints of employees relating to their working conditions. At the close of the discussion, the employees at the meeting, numbering some 30 to 35, voted by secret ballot to strike forthwith. That evening a picket line was stationed in front of Valley's premises. Some of the employees who were still at work were notified of the strike and picket line, and ceased work. The following day, October 15, 1959, Valley, over the signature of Murray Robertson, its secretary-treasurer, sent telegrams to 43 of the strikers reading: Inasmuch as you failed to report on your regular shift October 15th and the Company was not notified of any valid excuse you are hereby discharged .4 2 The 12 individuals so named were Margy Smith, Billy Adkins, Gene W. Massey, Lee Gabriel, Bob Crowder, Melvin Coates, Harold Moch, Lodovico Iannetta, Rosario Stica, Lawrence Vitale, Antonio Vitale, and Dudley Young. 3 See N L R R. v. Gaynor News Company, Inc, 197 F. 2d 719, 721-722 (C.A. 2), and cases there cited 4 The names of these 43 strikers are listed in Appendix B attached hereto and are derived from General Counsel 's Exhibits Nos. 2F, K, and L. One of the 41 names listed 597254-61-vol. 130-34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Identically worded telegrams were sent to 17 additional strikers on the following day, October 16, and to still another striker on October 17.5 On October 19, 1959, Valley sent 11 more telegrams, again over the signature of Murray Robertson, dis- charging other strikers for failing to report on their regular shift on October 19 without having furnished the Company with any valid excuse.6 The last telegram here relevant was sent to Harold Moch on October 10 over the signature of George Roberts, the then plant superintendent, and read merely, "Your services are no longer needed at Valley Die Cast Corporation." Several of the employees who received the discharge telegrams above described had been placed on temporary layoff status on October 14. No new employees were hired until about the third day of the strike. The record does not show, however, how many such new employees were hired, when they were hired, on which striking employees, if any, they replaced. In the meantime the strike and the picketing, which had commenced on the night of October 14, 1959, continued until October 26, 1959. During the course of the strike, several of Respondents' officials made statements to the effect that employees on the picket line or on strike would not be allowed to return to work. Thus, on the night of October 14, Torosian, a Valley official, told the strikers who were gathered at the plant that they were fired and that they would never get their jobs back at Valley. During the same evening Superintendent Roberts brought coffee out to the pickets and announced that this was a farewell party. President Polizzi on Thursday, October 15, asked by one of the pickets, Emogene Potter, if they were fired, replied either that they were or probably were "as of now." 7 On October 21, 1959, Valley and the Union appeared in the Wayne County Cir- cuit Court on cross-complaints which they had respectively filed against one another. On that occasion, Mr. Eden, as counsel for the Union asked Mr. Burns, counsel for Valley, if the employees could go back to work while awaiting the outcome of the representation proceedings which were pending before the Board While the tes- timony is not altogether clear in that regard, it appears and I find that this offer to return to work was conditioned at the very least on the discontinuance of the pro- ceedings in the Wayne County circuit court. In any event, the offer was rejected. A second offer by the Union for the strikers to return to work was made on October 26, 5 days later, during the course of a Board hearing in the representation proceed- ing 8 Valley again rejected the offer. That night at a union meeting the employees voted to call off the strike and the picketing and to apply for their jobs the follow- ing morning. The strike and the picketing were brought to an end forthwith and the following morning, October 27, a number of the strikers asked for their jobs back. The requests were denied. C. Analysis, defenses, and concluding findings 1. The discharges The facts here critical are virtually undisputed. On the night of October 14, 1959, Valley's employees, pursuant to a vote at a union meeting, went on strike against Valley and established a picket line in front of Valley's premises. No con- in 2F was obscured and only the address appears . I infer and find that the missing name is that of employee Daisy Scott I base this inference and finding on the fact that, as shown in the pleadings , Daisy Scott was admittedly one of the employees who went on strike and Respondents neither urge nor suggest that she was treated differently from any of the other strikers listed in the pleadings, all of whom received telegrams of discharge. It is significant, too, that the address in question was "1582 Berwick Det ," the identical address listed for another employee named Daisy Scott who was also on strike. While I would not normally regard this coincidence of surnames and addresses as persuasive, I do so regard it here in view of the other considerations set forth above. 6 These 18 strikers are listed in Appendix C attached hereto. 8 These 11 strikers are listed in Appendix D attached hereto. It will be noted that in- cluded in these 11 is Billy Adkins who had already been sent a discharge telegram on October 15. See Appendix B. 7 General Counsel adduced evidence that Polizzi unsuccessfully offered a raise to em- ployees to get them to go back to work. Polizzi denied making such an offer. The com- plaint contains no allegation in this regard and an amendment to the complaint proffered at the beginning of the hearing by General Counsel which would have related to this subject matter was voluntarily withdrawn . Under the circumstances I make no finding concerning this matter. 8 The Union subsequently withdrew its representation petition. VALLEY DIE CAST CORP. 515 tention is made that the strike was caused by, or was in protest against, any unfair labor practices by Valley. So far as appears, the strike arose out of the employees' desire for representation by the Union, their dissatisfaction with certain of their working conditions, and their fear that certain layoffs in the diecasting department on the afternoon of October 14 presaged plantwide layoffs. In terms of labor rela- tions law, the employees here involved engaged in an economic strike as distinguished from an unfair labor practice strike. In any event, beginning October 15 and through October 19 Valley sent telegrams of discharge to the employees named in the complaint as amended; 43 such telegrams were sent on October 15, 17 on October 16, and the remainder on October 17 and 19. The question presented is whether these discharges violated Section 8(a) (1) and (3) of the Act as alleged by General Counsel. The legal principles here applicable are well settled. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333; N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748, 750 (C.A. 9), and cases cited. Generally speaking, strikers retain their status as employees of their employer and are protected against unfair labor practices de- nounced by the Act. In the case of an economic strike, however, an employer may, in order to protect his legitimate interests, permanently replace the strikers and, to the extent that he does so, he is not required to reinstate them. Absent such re- placement, however, the employer may not discharge or refuse upon request to re- instate economic strikers. Such action constitutes a reprisal for the mere act of striking and pro tanto, trenches upon a guarantee specifically vouchsafed by Sections 7 and 13 of the Act. See also Section 2(3) of the Act. Applying these principles to the facts of the instant case, it follows that Valley violated Section 8 (a) (1) and (3) of the Act when it took the discharge action herein set forth. On the admission of its own official, Murray Robertson, Valley hired no new employees until about the third day of the strike. The 60 employees discharged on October 15 and 16 had therefore not been replaced prior to their discharge. And, from all the circumstances, the same would appear to be true also with respect to the discharges of October 17 and 19. Indeed, Respondents in their brief to the Trial Examiner, make no claim that any of the strikers had been replaced at the time of their discharge, but claim merely that they had been replaced at the time they applied for reinstatement. Needless to say, subsequent replacement of discrimina- torily discharged employees constitutes no defense to a finding that the prior discharge was an unfair labor practice nor does it constitute a bar to an order of reinstatement. Respondents, however, pose a number of defenses to exonerate themselves from liability. Preliminarily, the contention is made that the strike was without justifica- tion and that Valley had engaged in no conduct warranting a strike. But the wisdom or unwisdom of a strike, the justification or lack of it, as the Supreme Court long ago noted in the Mackay case already cited, does not alter its status as a protected activ- ity. Respondents argue also that the strike was premature and that it caught not only Valley, but also some of the employees themselves, by surprise. Insofar as Respondents suggest that any of the employees were "coerced" into joining the ranks of the strikers, the record does not substantiate such a claim and, insofar as notice to Valley is involved, the Act imposes no requirement that an employer be given prior notice of a strike to bring it within the protection of the statute. Morris Fishman & Sons, Inc., 122 NLRB 1436, enfd. 278 F. 2d 792 (C.A. 3). Without merit also is the claim that the strike should be denied protection because it created a "potentially dangerous condition" in the plant. While it is true that employees who engage in a work stoppage which has been deliberately timed to cause aggravated physical injury to a plant or to create peculiarly dangerous conditions forfeit their statutory protection, the evidence here relied upon does not warrant invocation of that doctrine. That evidence derives largely from the testimony of two maintenance employees who stated in substance that "at times" there was a danger of gas leakage or electrical damage from boilers and that a cat, which fre- quented the plant premises, might knock over a chemical in the plant laboratory, thereby causing serious damage. The two maintenance men testified further that they were physically blocked by the strikers from entering the plant on the night of October 14 when they sought to take care of this situation .9 They further testified that Edward Torosian, who corroborated them in this regard, after seeking unsuc- cessfully to obtain entrance for them into the plant instructed them to go home. On all the evidence and upon my observation of the demeanor of the witnesses, I con- clude that the "potentially dangerous condition" was highly exaggerated. If a serious danger had really existed and the services of the maintenance men were 9 This was the sole incident of alleged misconduct during the 12 days the strike lasted. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD really necessary to avert the danger, I do not believe Mr. Torosian would have capitulated and told the maintenance men to go home. At the very least, it seems to me, Mr. Torosian would have enlisted the aid of the police, who, all agree, were present on the scene, to get the maintenance men into the plant. There is no evi- dence that this was done. Moreover, the evidence that the maintenance men were physically restrained from entering the plant is likewise wanting in persuasiveness. 10 While I have no doubt that the strikers made serious efforts to dissuade the mainte- nance men from crossing their picket line and that a near altercation occurred 11 the evidence as to actual physical restraint is singularly lacking in detail both as to the precise nature of the physical restraint and the identity of the person or persons doing the restraining. In sum, the evidence here proffered fails to establish mis- conduct of a nature serious enough to warrant denial of statutory protection to ag- grieved employees. See Morris Fishman & Sons, Inc., supra, 122 NLRB 1436 at 1438; N.L R.B. v. Wichita Television Corporation, Inc, d/b/a KARD-TV, 277 F. 2d 579, 584-585 (C.A. 10). Finally, Respondents argue that the strike herein should be denied protection in- asmuch as the strike was one for recognition, that the Union did not represent a majority of the employees, and that the strike was therefore for an unlawful pur- pose. The contention assumes too much. The strike did take place while a repre- sentation petition was pending. However as the record demonstrates and as Re- spondents' brief acknowledges, the factors which gave impetus to the strike were dissatisfaction with certain working conditions, a desire for better working condi-' tions, and a fear of a possible plantwide layoff. There is a dearth of evidence to establish that the object, or even an object, of the strike was to obtain recognition of the Union without resort to Board procedures. On the contrary, the evidence reveals that throughout the strike efforts were being made to expedite the repre- sentation proceeding so that the question of representation could be expeditiously resolved by the Board itself. Under these circumstances it is unnecessary to deter- mine whether the Union did nor did not represent a majority of the employees. Contrary to Respondents' assertion, however, the record contains insufficient evidence to warrant a finding in that regard.i2 I find, therefore, on the basis of all the evidence and for the reasons heretofore stated, that the discharges here in issue were in violation of the provisions of Sec- tion 8(a) (1) and (3) of the Act. 2. The offers to return Discriminatorily discharged employees are normally entitled to immediate rein- statement and backpay. But the Board has uniformly held that where strikers are involved, the reinstatement and backpay obligation shall not be operative as to any striker until he actually abandons the strike and evidences an unconditional willing- ness to return to work. N.L.R.B v. Globe Wireless, Ltd , supra, 193 F. 2d 748, at 752; Brookville Glove Company, 114 NLRB 213, 215 enfd 234 F 2d 400 (C A 3). General Counsel urges that the Union met these requirements on behalf of the em- plovees on October 21. 26, and 27 However, the October 21 offer, as I have al- ready found, was conditioned on the abandonment of the State court proceedings. The October 26 offer was not so conditioned and that evening the employees voted to, and did, abandon the strike The following day, October 27, pursuant to their vote the previous evening, a number of the discharged strikers reported to Valley lO Indeed, witnesses proffered by General Counsel gave a distinctly different version of this incident it Polizzi, president of Valley, who was also present at the time testified that he and Torosian ordered the two maintenance men to go home rather than "start a big commotion over there " 12 Brief reference can be made here to various other contentions of Respondents which are patently inapposite The fact, asserted by Respondents, that certain employees con- tinued to work during the time of the strike and that some of the strikers returned to work during the strike does not, of course, place the work stoppage in the category of a partial strike See Valley Cztzi Furniture Company, 110 NLRB 1,589. The employees who did engage in the strike, unlike the employees in Valley City, did not seek to continue working on their own terms but ceased work completely. Respondents' reliance on the provisions of Section 8(b) (7) of the 19.59 amendments, even if otherwise applicable, is likewise misplaced inasmuch as these provisions did not become effective until after the events here in issue Finally, Respondents can derive no comfort from the fact that its discharge of certain employees who had previously been laid off was a mistake on its part. So far as the employees here involved knew, they were effectively discharged. VALLEY DIE CAST CORP. 517 and asked for their jobs. Valley took the position, as it had throughout the strike, that the strikers were discharged and would not be taken back. Upon the foregoing facts, 1 find that the strikers herein did not meet the precon- ditions for reinstatement until, on the evening of October 26, they voted to abandon the strike and ask for their jobs back the following day. It is true that when several of the strikers did ask for their jobs the following day, Valley made explicit what had previously been apparent, namely, that it would not under any circumstances reestablish the employment relationships which it had previously terminated. Under these circumstances it was not necessary-indeed, it would have been futile-for the remaining strikers to have made individual requests for reinstatement and the law does not require the doing of a futile act. Once the employees abandoned the strike and manifested thereby their unconditional willingness to go to work, the obligation upon Valley to reinstate them became effective forthwith. Sea View Industries, Inc., 127 NLRB 440. 3. The liability of the "individual Respondents" As stated in the caption, General Counsel named as Respondents in his complaint not only Valley, the corporate Respondent here involved, but named also Robert- son, Torosian, Polizzi, and Roberts m their individual capacities. With respect to these four individuals, the complaint alleged merely that they "are and were at all times herein material, officers, managers, and operators of the business of Re- spondent Valley and acted as agents of Respondent Valley in the commission of the acts [alleged as unfair labor practices] and as such were agents of Respondent Valley and employers within the meaning of Section 2(2) of the Act." [Emphasis supplied.] The answer to the complaint admits that the four named individuals were agents of Valley. It follows, therefore, that they were employers within the literal language of Section 2(2). On the other hand, the evidence does not establish and, indeed, the complaint does not allege, that, so far as relevant here, they engaged in any acts or conduct in their individual capacities as distinct from their capacities as agents of Valley. In this state of the record, I find no basis in this proceeding for a holding that Robertson, Torosian, Polizzi, and Roberts, in their individual capacities, committed unfair labor practices. To the extent that they acted as agents of Valley, the latter is, of course, answerable for their conduct and any remedy validly prescribed for such conduct would be binding not only on Valley but through Valley upon its agents. Viewed in this posture, it would in any event serve no useful purpose nor would it effectuate the policies of the Act to make findings as to whether Robertson, Torosian, Polizzi, and Roberts committed unfair labor practices in their individual capacities or whether they should be made individually liable for such unfair labor practices, if any. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Valley and its agents set forth in section III, above, occurring in connection with the operations of Valley 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Valley has engaged in and is engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found further that Respondent Valley between October 15 and 19, 1959, discriminatorily discharged striking employees, I will recommend that it offer these employees full and immediate reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all employees hired as replacements for the discharged strikers on or after the respective dates of discharge. One caveat is necessary in this regard. It is clear that none of the 60 strikers discharged on October 15 and 16 were replaced prior to their discharge. This appears to be the case also with respect to the strikers discharged thereafter. However, since Valley apparently began to hire new employees about the third day after the strike it is possible that one or more of the strikers discharged after October 16 may have been permanently replaced prior to their discharge. In that event, it would not be incumbent upon Valley to rein- state such strikers since their riiht to both reinstatement and backpay would have terminated as of the date of their replacement. The resolution of any issue arising in this regard may appropriately be deferred to later compliance proceedings. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.R.B. v. Rutter-Rex (J.H.), Manufacturing Company, 245 F. 2d 594, 598 (C.A. 5). I will further recommend that, subject to the caveat already noted, Valley make whole the discharged strikers for any loss of wages they may have suffered as the result of the discrimination towards them . Because the strike was not abandoned until the night of October 26, the backpay period shall begin on the morning of October 27, 1959, and shall continue in the case of each discriminatorily discharged employee until the date Valley offers the employee reinstatement as hereinbefore provided. Such backpay less the employees' net earnings during the backpay period, shall be computed on a quarterly basis as prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. Valley shall, upon request, make available to the Board or its agents for examination all payroll and social security records and such other records and reports necessary to determine the amounts of backpay due. CONCLUSIONS OF LAW 1. Valley Die Casting Corp., the corporate Respondent herein , is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging unreplaced economic strikers, Respondent Valley has violated Section 8 ( a) (1) and ( 3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 4. The record affords insufficient basis for a finding that Respondents Murray F. Robertson , Edward Torosian , Michael Polizzi, and George M. Roberts engaged in unfair labor practices in their individual capacities, as alleged in the complaint. [Recommendations omitted from publication.] APPENDIX A GROUP 1 Daisy Scott Corrinne Breeding Charles Sadler Willie Davis Alphonse Vandevelde Buddy Darnell Joaquin Castillo Emmet Adkins Alger Stancey Randolph Yamin Linda Scott Benedict Siragusa Edmund Bojarski Mary Mabee Frankie Harper James Johnson William Bowman Anne Jarrait Marcia Jankowski Jimmie Call Hugo Wienke Jacqueline Socula Margaret Laquinto Herbert Hickey Albert Garcia Arnold Salyer Delsie Henderson Ernesto Chevez Billy Adkins Joseph Yamin Francisco Villaruel Shirlee Call Jack Call Thelma Rose Luis Luna Chester Kierpaul Lora May Wamble Lizzie White John Wiedman Gaetano Currao Clifford White James Springer Irene Goodman Grace Ferranti Robert Allen Bernice Wienke Billy Harper Joseph Edwards Dorothy Waldrip Lessie Newsome Earl Cole Oran Darnell William Cardella Peter Orlando Margy Smith Bernice Lipinski Donna Demeyer Emogene Potter Adolph Gonzales Franklin England GROUP 2 James Carroll Bob Crowder Lawrence Vitale William Lafave Melvin Coates Antonio Vitale Gene Massey Lodovico lannetta Dudley Young Lee Gabriel Rosario Stica Harold Moch APPENDIX B STRIKERS DISCHARGED OCTOBER 15, 1959 Daisy Scott James Johnson Francisco Villaruel Willie Davis Marcia Jankowski Thelma Rose Joaquin Castillo Jacqueline Socula Lora May Wamble Randolph Yamin Alberto Garcia Gaetano Currao Edmund Bojarski Ernesto Chavez Arnold Salyer SHOOK & FLETCHER INSULATION COMPANY 519 Billy Adkins Margy Smith Jimmy Call Shirlee Call Emogene Potter Margaret Laquinto Luis Luna Corrinne Breeding Frankie Harper Lizzie White Billy Harper Anne Jarrait Clifford White Alphonse Vandevelde Hugo Wienke Grace Ferranti Emmet Adkins Herbert Hickey Irene Goodman Linda Scott Delsie Henderson Bernice Wienke Mary Mabee Joseph Yamin Dorothy Waldrip William Bowman Jack Call Oran Darnell APPENDIX C STRIKERS DISCHARGED OCTOBER 16, 1959 Chester Kierpaul James Springer Benedict Siragusa Lessie Newsome Robert Allen Earl Cole William Cardella Joseph Edwards Peter Orlando Bernice Lipinski Charles Sadler Donna Demeyer Adolph Gonzales Buddy Darnell Franklin England John Wiedman Alger Stacey STRIKER DISCHARGED OCTOBER 17, 1959 James Carroll APPENDIX D STRIKERS DISCHARGED OCTOBER 19, 1959 Billy Adkins ( also on Appendix B) Lodovico Ianetta William Lafave Rosario Stica Gene Massey Lawrence Vitale Lee Gabriel Antonio Vitale Bob Crowder Dudley Young Melvin Coates Shook & Fletcher Insulation Company and Billy A. Griffin, Robert A. Griffin, B. F. Scovell, George R. Hester, L. C. Kittrell, John D. Wilson, and C. P. Bosarge, Jr. Badham Insulation Company, Inc. and L. C. Kittrell, George R. Hester, B. F. Scovell, Robert A. Griffin , R. E. Griffin, Sr., Billy A. Griffin, C. P. Bosarge, Jr., and J. M. Schmidt. Cases Nos. 15-CA-1349,15-CA-1350,15-CA-135,-,15-CA-1353,15-CA-1354, 15-CA-1355,15-CA-1449,15-CA-14,-9,15-CA-14.30,15-CA-1431, 15-CA-1432,15-CA-1433,15-CA-1434,15-CA-1450, and 15-CA- 1467. February P20, 1961 DECISION AND ORDER On March 31, 1960, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Badham Insulation Company, Inc., had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act 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. The Trial Examiner also found that the Respondents Shook & Fletcher Insulation Com- 130 NLRB No. 64.