Seaboard Diecasting Corp.

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their rights to self-organization , to form- labor organizations, to join or assist the above-named Union, or any other-labor organization, to bargain collectively , through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. WE WILL offer Gerald Pashek -and Erwin Just immediate and full reinstate- ment to their former or substantially equivalent jobs, without prejudice to any rights and privileges previously enjoyed by them , and we will make them whole for any loss of wages suffered as a result of their discharge , transfer, or demotion. All our employees are free to become, remain , or refrain from becoming mem- bers of the above-named Union or any other labor organization. MERCHANTS POLICE, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ' (Title) This notice must remain. posted for 60 days from the date thereof, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 176 West Adams Street, Chicago, Illinois, Telephone Number, Central 6-9660, if'they have any question concerning this notice or compliance with its provisions. Seaboard Diecasting Corporation and John Fitzgerald. Case No. 2-CA-8101. June 7, 1962 DECISION AND ORDER On February 28, 1962, Trial Examiner Thomas F. Maher issued his Intermediate 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 Intermediate Report attached hereto. He also found that the Respondent had not engaged in other unfair labor practices. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. The Board 1 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations insofar as consistent with' the following modifications : 1. We agree with the Trial Examiner's finding that the Respondent refused to reinstate Fitzgerald to the position of molder because it anticipated that Fitzgerald would regain his union status as shop I Pursuant to the provisions of Section 3(b)' of the Act, the Board has delegated its powers in connection with this case to a. three -member panel [Chairman McCulloch and Members Rodgers and Leedom]. 137 NLRB No. 60. SEABOARD DIECASTING CORPORATION 537 steward 2 We rely particularly on the fact that Fitzgerald was an active and conscientious shop steward and that the Respondent ob- jected to him and regarded him as a troublemaker because of his ef- forts, as union steward, to protect the rights of the employees. In- deed, Respondent asked Union Representative McDermott on several occasions to replace Fitzgerald with a union steward who would not be as troublesome as Fitzgerald was. 2. We also agree with the Trial Examiner that the Respondent's conduct in closing down its plant on August 4 constituted an unlawful lockout of its employees. On several occasions, the Respondent had told its employees that they would be better off without the Union, and had threatened that there would be a layoff or shutdown of the plant if former Union Steward Fitzgerald were reinstated. When McDermott advised the Respondent that the Union would not press for Fitzgerald's reinstatement, the Respondent reopened the plant. Accordingly, it is clear, and we find, that the Respondent closed its plant and locked out its employees in violation of Section 8(a) (3) and (1) of the Act. ORDER The Board adopts the Recommended Order of the Trial Examiner with the modifications, in section 2(a) and in the Appendix, that the reinstatement of Fitzgerald should be to his former or substantially equivalent position "as a molder." 2In the section of the Intermediate Report entitled "The Remedy," the Trial Examiner inadvertently stated that the Respondent discharged Fitzgerald. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amendment thereto filed respectively on August 15 and 16, 1961, by John Fitzgerald, General Counsel of the National Labor Relations Board, herein referred to as the Board, by the Regional Director of the Board's Second Region, issued a complaint on September 27, 1961, and an amendment thereto on October 18, 1961, against Seaboard Diecasting Corporation, Respondent herein, alleging violations of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Thereafter Respondent filed a motion for a bill of particulars which in due course was denied by Trial Examiner E. Don Wilson. Pursuant to notice, a hearing was held before Thomas F. Maher, the duly desig- nated Trial Examiner, at New York, New York, on November 7 and 8, 1961. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, to file briefs with me. Briefs were filed by the General Counsel and Respondent on December 8 and 12, 1961, respectively. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of the witnesses,) I make the following: 'Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based , at least in part, upon his de- meanor as I observed it at the time the testimony was given . Cf. Retail Clerks Inter- national Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, footnote 3; Bryan Brothers Packing Company, 129 NLRB 285 . To the extent that I indi- 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Seaboard Diecasting Corporation is a New York corporation with its plant, offices, and principal place of business located at West Islip, Long Island, New York, where it is engaged in the manufacture, sale, and distribution of dies, castings, and related products. In the course and conduct of its operations Respondent annually manu- factured, sold, and distributed at and from its West Islip plant products valued in excess of $85,000, of which products valued at $30,000 were shipped in interstate commerce directly to States of the United States other than the State of New York Similarly, during the same annual period Respondent furnished aforesaid products valued in excess of $50,000 to McPhilben Manufacturing Co, Brooklyn, New York, an enterprise which annually produces goods valued in excess of $50,000, and ships them to States outside the State of New York. The foregoing facts alleged in the complaint were admitted by Respondent at the hearing and I accordingly find it to be engaged in commerce within the meaning of the Act. It. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, Local 13908, the Union herein, which maintains contractual relations with the Respondent and of which John Fitz- gerald, the Charging Party, is a member, is conceded to be a labor organization within the meaning of the Act, and I so find. III THE ISSUES 1. The absence of proof that Respondent promoted Fitzgerald to foreman for the purpose of discharging him. 2. The discriminatory refusal of Respondent to honor its obligation to reinstate Fitzgerald to his rank-and-file position. 3. Threats to close the plant as evidence of employee interference, restraint, and coercion. 4. The discriminatory nature of the employees' lockout IV THE UNFAIR LABOR PRACTICES A. Sequence of events For some time prior to May 1961, John Fitzgerald, a concededly competent molder in Respondent's plant, was shop steward for the Union and from all accounts did a very effective job in representing the men and processing their grievances Early in May 1961, Respondent's treasurer, Ernest Riedel, offered Fitzgerald a promotion to shop foreman to fill a vacancy that had existed for the previous 2 months. Fitzgerald's initial reaction was negative However, after a subsequent conference with Respondent's president, Larry Schiffman, during which he was of- fered a weekly salary of $150, Fitzgerald accepted the promotion upon condition that Respondent would negotiate with him an employment contract. Such a con- tract was executed on May 17, 1961, by Fitzgerald and Treasurer Riedel, in behalf of Respondent. It provided for the agreed-upon salary, 2 years' tenure, and a fur- ther agreement that "in the event that either party for any reason whatsoever desires to terminate this agreement, then in that event [Fitzgerald] shall revert to the position of Journeyman on permanent molds without any loss of seniority and shall be em- ployed at the then current union scale of wages." Fitzgerald performed his duties as foreman with apparent satisfaction through- out May, June, and early July 1961 Indeed Respondent's officials so testified. indicating that not until July 25 did they have any cause for complaint. On that day, after arriving 1 hour eariv for work. Fitzgerald worked an hour and departed for Brooklyn, approximately 40 miles distant from West Islip, to appear in court in response to a traffic violation summons. Fitzgerald sought no one's permission and the only notice to his suneriors of this absence from his job was the word he left prior to departing 2 When his business in court concluded at 2 p.m., according to cate that I do not rely upon or reject in part or entirely the testimony of any given witness, It is my intent thereby to indicate that such pact or whole of the testimony, es the case may be, is discredited by me Jack8on Maintenance Corporation, 126 NLRB 115, footnote 1, enfd. 283 F. 2d 569 (C.A. 2) a Fitzgerald claims he told Treasurer Riedel the night before. Riedel, whom I credit generally, disclaims any knowledge of happenings at the plant after July 15 President SEABOARD DIECASTING CORPORATION 539 Fitzgerald, he did not return to the plant . Instead he reported at the regular hour on the following morning. On that day, Wednesday, July 26, the men complained to Fitzgerald of the excessive heat in the foundry, it also being a very hot summer day outside. Fitzgerald interceded in their behalf with President Schiffman. After some reluctance, Schiffman agreed that the men could go home, but insisted that all, not merely a group of them , should go. All but two of the rank-and-file employees, according to Fitzgerald, went home; Olivieri and another identified only as Ben, remained at work. Fitzgerald also left for home. On the following morning President Schiffman called Fitzgerald to his office and, in the presence of Vice President Karaktin , reprimanded him for his recent short- comings, referring specifically to the traffic court incident and to his early departure on the previous afternoon. After some heated conversation in which Fitzgerald's talents as a foreman were brought into serious question, Fitzgerald states that he said, "I'm sorry you are dissatisfied . If you are dissatisfied I'll go back as a perma- nent molder." Karaktin's version of this conversation is substantially the same; thus he quotes Fitzgerald as saying to Schiffman, "Larry, we don't see eye to eye and I don' think we will ever get along together. So I am quitting." s In any event, it is clear from Fitzgerald 's and Karaktin's testimony that Respondent neither discharged Fitzgerald nor sought to remove him from his foremanship. On the con- trary, it is undisputed that Fitzgerald quit his position of foreman on that date, July 27. After Fitzgerald's announcement at the conference that he was quitting his job, Vice President Karaktin left and Fitzgerald and Schiffman continued their conver- sation, with Fitzgerald insisting that he be returned at once to his former position as molder which he claimed by virtue of his contract with Respondent (supra). Schiffman was reluctant to permit Fitzgerald to report to work and suggested that he take some time off, with pay, until Respondent had cleared the matter with the Union. It is evident from all the testimony , including Schiffman's and Fitzgerald's, neither of which I credit generally, that Respondent did not want Fitzgerald back in his rank-and-file job as molder , or indeed as anything else. Schiffman , by his own ad- mission, told Fitzgerald he could not come back until he, Schiffman, had cleared it with Union Representative McDermott. On the same day McDermott, having been notified of the Fitzgerald incident, spoke to Schiffman on the telephone . Schiffman appears only to have asked McDermott to come out to the plant and talk with him, saying nothing about Fitzgerald's seniority. McDermott did not get to the plant on the following day, Friday, July 28, due to the pressure of other business. But when he did get there on the following Monday, July 31, he never did see Schiffman, find- ing it necessary to meet with the men concerning Schiffman 's recent statements to a number of them.4 Thus, for example , it appears that immediately following Fitz- gerald's conference with Schiffman wherein he quit the foremanship and asked to be returned as a molder, Schiffman spoke to employee Dickson, a union committee- man, on Friday, July 28, in the presence of employee Guiliano, and told him that if the men forced him to take Fitzgerald back to work he would close the plant down.5 Fitzgerald returned to the plant on the several following days seeking to start as a molder, but on each occasion President Schiffman indicated his unwillingness to take him back because of the seniority conflicts that would arise and until he had cleared the matter with the Union. On Tuesday, August 1, Fitzgerald actually ap- peared in working clothes prepared to start, and withdrew his timecard from the rack. Schiffman called Fitzgerald to the office and spoke to him in the presence of Vice President Karaktin and Shop Steward Katonica. Fitzgerald protested that he had already been kept from work too long; and in the course of the argument with him Schiffman told Fitzgerald. "Don't you tell the boss when you are coming to work around here " 6 Whereupon Schiffman asked Katonica to get Union Representative Schiffman, whom I do not credit generally, stated he found a note from Fitzgerald on his desk on the morning of the absence stating Fitzgerald's expected whereabouts. In any event Respondent was aware of Fitzgerald 's departure and his destination 3I do not credit Schiffman's account of this event that Fitzgerald merely said , "I quit" 'McDermott's credited testimony. 5 The credited testimony of employee Dickson Employee Guiliano was not questioned concerning this incident He was questioned with respect to a similar conversation which he witnessed a week later between Schiffman and employee Katonica in which Schiffman repeated his earlier intent to close the plant if he had to take Fitzgerald back (infra, footnote 8) g The credited testimony of Katonica. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McDermott on the telephone and then dismissed Katonica from the conference. In the course of the telephone conversation Schiffman told McDermott that Fitzgerald would not be back until he, Schiffman, had talked to the union representative about it.7 In this respect it is to be noted that the men in the plant had been alerted by reports that had come to them that Schiffman would shut down the plant rather than take Fitzgerald back, and the contradicting report that if they took him back at all the Company would then lay off 12 or 13 men to reach him for layoff on the basis of seniority. As a consequence of the men's concern over this the Union definitely recognized an urgency in the matter not, according to McDermott, insofar as a stand was to be taken on Fitzgerald's difficulties, but specifically because of Re- spondent's threat to shut down the plant. In fact, the Union has at all times in- sisted that it takes no position in the Fitzgerald case, and in this respect I so find. On Tuesday, Wednesday, and Thursday, August 1, 2, and 3, McDermott spent a considerable amount of time at the plant meeting with the employees and discussing grievances with them generally. On Wednesday McDermott was present at a meet- ing of employees called by Schiffman At this meeting Schiffman told the men that he did not want Fitzgerald back, that he was a thorn in their side-a troublemaker. "He threatened there would be a layoff, wherever he was on the seniority list, or he would close down the plant, words to that effect. He tried to point out to the men that Fitzgerald was hurting them.8 Schiffman thereafter reiterated his position on Fitzgerald in private conversations with employees Dickson, Guiliano, and Katonica, as credibly testified to by each. During this period Fitzgerald frequently came to the plant in the company of McDermott until the police, at Schiffman's request, ordered him off the premises as a trespasser. Fitzgerald did not thereafter return until negotiations were com- menced, as will be hereafter discussed. McDermott, functioning in his capacity of union delegate, was never excluded from the premises. At this time, admittedly because of the turmoil in the plant and at the particular urging of Vice President Karaktin, Schiffman decided to shut down the plant and go out of business. Accordingly, at the close of work on Thursday, August 3, the men were assembled at the timeclock and were informed that as of that time Seaboard Diecasting was out of business, and that the men would be paid for the following day. Karaktin concedes that the men may well have been told that this action was being taken "because of all the trouble that's been going on," but he denies that they were told that it was because of Fitzgerald. On this same day, however, and earlier, Schiffman had told employees Dickson and Guiliano that he would close the plant down rather than take Fitzgerald back.9 The shop was closed the following day but the men nevertheless appeared and congregated in groups. Schiffman and Katonica were present also, protesting among the men that union representatives had that morning countermanded company in- structions not to light up the furnaces. Schiffman, in the course of his heated re- marks concerning Union Representative McDermott, told the men that they would be better off without the Union. Negotiations between Schiffman and McDermott began immediately thereafter in an effort to return the men to their jobs. During the course of these negotiations, which extended into the weekend, Schiffman was insistent that he would not reopen the plant if it meant taking Fitzgerald back, and McDermott, insisting that the men be returned to work, refused to take any position whatever on Fitzgerald and left the matter to him and Respondent. It was finally agreed that Fitzgerald would come into the office on Monday, August 7, and that he and Schiffman would try to work something out; and that, in any event, the shop would be opened on that date and the men would return Work resumed on that date. No satisfactory arrangements ever appear to have been worked out with Fitzgerald and he has not since been employed by Respondent. B. Analysis and conclusions 1. The legal status of Fitzgerald's tenure as foreman Upon credible evidence I have found that Respondent promoted John Fitzgerald to foreman because he had exhibited talents that were justified by his successful han- dling of the job, at least until the final week. In so finding I reject the General Coun- sel's suggestion that he was promoted for the discriminatory purpose of thereafter being fired. Apart from the obvious fact that Respondent never did fire him, con- 7 The credited testimony of McDermott substantiated by Fitzgerald who overheard the conversation and testified concerning it 8 The credited testimony of McDermott, corroborated by Katonica 0 The credited testimony of Dickson and Guiliano. Cf. footnote 5, supra SEABOARD DIECASTING CORPORATION 541 structively or otherwise (Fitzgerald having admittedly quit for his old job), reason and reality negate General Counsel's position. In the first place it is unrealistic for a responsible businessman to turn over the operational authority of his plant to a man whom he plans to be rid of. It occurs to me that anyone so devious as to plan such a reprisal could plan one with less business risk. Secondly, it cannot be in- ferred, as General Counsel would have me infer, that because an employee is active and highly effective in the Union, the shop steward in this case, such an employee's promotion to management is thereby foreclosed. Indeed such an inference, if I were to make it, would actually suggest that Fitzgerald, were he not promoted, was actually being deprived of his promotion because he was vigorous in behalf of the Union-an unlawful action in itself. I am not disposed to meddle with such a two-edged sword. In concluding as I have, I am aware of three items of testimony that suggest a discriminatory motive on President Schiffman's part in promoting Fitzgerald. Thus when confronted with Union Representative McDermott's suggestion that Fitzgerald was promoted to get him out of the unit Schiffman shrugged his shoulders and said, "You know me." And again McDermott's quotation of a private conversation with Schiffman when the plant was shut down, with Schiffman saying, "You know why I made him a foreman. I made him a foreman to get rid of him." And finally, Shop Steward Katonica's quotation of Schiffman on that same occasion, saying, "The only reason he hired Fitzgerald was to get him out of the Union so he could fire him." I am not prepared to accept Schiffman's shrugged shoulders and his statement "you know me" to be an admission of guilt, for this is the sort of ambiguity that the Board consistently refuses to rely upon.10 Furthermore, this and the other quotation by McDermott was the testimony of a witness whom I observed to be garrulous, as the length of his answers to questions in the record illustrates. While I credit him generally I cannot and do not credit these particular comments. Observing him as I did I am persuaded that the statements in question, and numerous others which I do not rely upon, were conceived in verbosity and exaggeration, and do not meet the test of credible evidence." Nor, upon my observation of Katonica as he testified both on direct and cross-examination to the statement noted above, do I credit his remarks And indeed were I to credit them, or McDermott's testimony on the subject, I could not use them, standing alone, to establish the otherwise unestablished motivation for conduct occurring 3 months previous. I would, in fact be merely speculating that Respondent was planning an alleged discharge that never actually occurred. Such a speculation is no substitute for legitimate inference. In conclusion, I find, therefore, that Fitzgerald was not promoted to foreman for the discriminatory purpose of thereafter being discharged. I so conclude not only because the whole record does not support such a finding as to the promotion, but for the more basic reason that there is nothing in the record to suggest a discharge, or to rebut Fitzgerald's own testimony that he was not discharged but actually quit to resume his old job. Nor is there anything in the record to suggest that the circumstances leading to Fitzgerald's decision to quit, i e., the reprimand for his absences, was contrived or was otherwise intended to create what might possibly be viewed as a "constructive discharge." Fitzgerald's own admission that it was he who initiated the termination precludes such a consideration. Fitzgerald's admission likewise precludes a finding that his voluntary termination as foreman constituted, in and of itself, a discrimination independent of his earlier alleged discriminatory promotion. Accordingly, I would dismiss so much of the complaint as alleges that Fitzgerald's promotion to and subsequent termination from the position of foreman was a violation of Section 8 (a) (1) and (3) of the Act. 2. The discriminatory refusal to reinstate Fitzgerald Respondent's refusal to return Fitzgerald to his former job of molder presents a different proposition By its contract Respondent was obligated to return Fitzgerald to the job without loss of seniority. And by operation of that contract his status as an employee, suspended though it may have been while he was employed as fore- man, was regained.12 Thus it refused to honor its contractual obligation and restore Fitzgerald to the job it had promised him. When it did so for the stated reason that 10Distiict 65. Retail, Wholesale and Department Store Union, AFL-CIO (I. Posner, Inc ), 133 NLRB 1555; Building and Construction Trades Council of Tampa and Vicinity, at at. (Tampa Sand and Material Co.), 132 NLRB 1564. 11 Glass-Tite Industries, Inc, 133 NLRB 1287, footnote 1 19 Cf. N.L.R B v E.A. Laboratories, Inc, 188 F. 2d 885 (C A 2), cert denied 342 U SF 871 ; N L R B. v Roure-Dupont Manufacturing, Inc., 199 F. 2d 631, 633 (CA 2). 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fitzgerald was a troublemaker with whom they objected dealing as a shop steward, Respondent did so implicitly because of the union status of steward which it anticipated Fitzgerald would regain when he took on his new job .13 Schiffman's statements to the men have no other interpretation. Nor may Respondent take comfort in the defense raised at the hearing that it would be precluded from returning Fitzgerald to his job as molder because of seniority conflicts with other employees . Respondent's officials should certainly have been aware that no such conflicts would exist , not only because there was provision in the contract between the Union and Respondent to protect against loss in seniority under such circumstances , but indeed in the very contract of reemployment between Fitzgerald and Respondent it was specifically stated that Fitzgerald could return to his old job "without loss of seniority " (supra). Respondent's excuse for opposing Fitzgerald's return for seniority reasons are thus without substance. Accordingly I conclude and find that by its consistent refusal to reinstate John Fitzgerald to his job as molder, for reasons which are proscribed by the Act, Re- spondent thereby discriminated against him in violation of Section 8(a) (3) and (1) of the Act. 3. Interference, restraint , and coercion of the employees Credible evidence referred to earlier in this report establishes that Respondent adamantly insisted that Fitzgerald be excluded from the job to which he was entitled by contract; that its officers frequently exhorted employees that they not make an issue of Fitzgerald's return; that they repeatedly stated that the Union would do the men no good ; and finally that they threatened to close the plant and subsequently did close it because the men insisted upon Fitzgerald 's return to work . These actions of Re- spondent, individually and as a pattern of total conduct, were clearly calculated to influence the employees . Such conduct has consistently been held by the Board to constitute interference , restraint, and coercion of employees in violation of Section 8 (a)( 1 ) of the Act, and I so find with respect to Respondent 's conduct here. 4. The discriminatory lockout Moreover, Respondent, by closing down the plant on August 4, thereby deprived its employees of work on that day and on the following Saturday, August 5,14 because the union representative had been checking on operations in the plant and because the employees continued to insist upon the return of John Fitzgerald to his job. Citation of authority is unnecessary to establish such conduct as a lockout which when so motivated constitutes discrimination in regard to tenure of employment for the purpose of discouraging membership in the Union. I accordingly find that Re- spondent has, by thus locking out its employees , violated Section 8(a) (3) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connection with the operations of the Company 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 thereof. VI. THE REMEDY Since it has been found that Respondent , by discharging John Fitzgerald, and by locking out its other employees , discriminated against them in violation of Section 8(a)(3) of the Act and has otherwise interfered with, restrained , and coerced its employees in violation of Section 8(a)(1) of the Act, I shall recommend that Re- spondent cease and desist therefrom and from infringing in any manner upon the rights of employees guaranteed in Section 7 of the Act . 15 I shall recommend that Respondent offer to the aforementioned employees immediate and full reinstatement to their former or substantially equivalent positions , 16 without prejudice to their seniority or other rights and privileges . I shall also recommend that Respondent make whole each of the aforementioned employees for any loss of earnings they may have suffered because of the discrimination against them , including such right as they may have had to earn overtime on the weekend during which the Respondent's lock- 13 N.L R B v. Roure Dupou.t 1ramufacturing, Inc, supra 14 There is credible testimony in the record that employees had In the past worked on Satutday. There is no indication whether this was overtime or not. 15 N.L.R B v Lamar Creamery Company, 246 F. 2d 8 ( CA. 5). 10 The Chase National Bank of the City of New York, San Juan, Puei to Rico , Branch, 65 NLRB 827 SEABOARD DIECASTING CORPORATION 543 out was effective, with backpay computed in the customary manner.17 I shall further recommend that the Board order Respondent to preserve and, upon request, make available to the Board payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and its operations occur in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within .the meaning of Section 2(5) of the Act By discriminating in regard to the tenure of employment of John Fitzgerald and the employees of Respondent's plant whom it locked out, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the foregoing conduct, and by threatening to close the plant if the employees insisted that Fitzgerald be returned to work, and by telling its employees that the Union would do them no good, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed them by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (l) of the Act 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, Seaboard Diecasting Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District 50, United Mine Workers of America, Local 13908, by discharging or in any other manner discriminating against em- ployees in regard to their hire or tenure of employment, or any term or condition of employment. (b) Threatening its employees that it will close its plant if the employees insist upon the hire of any individual employee, and advising the employees that their membership in the Union will do them no good. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2 Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer John Fitzgerald immediate and full reinstatement to his former or substantially equivalent position. (b) Make whole John Fitzgerald and any of its employees whom it locked out on Friday, August 4, 1961, in the manner set forth in the section entitled "The Remedy " (c) Preserve and, upon request, make 'available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary for the deter- mination of the amount of backpay due and the right of reinstatement under this Recommended Order. (d) Post at its West Islip, Long Island, New York, plant, copies of the notice attached hereto marked "Appendix." 18 Copies of the said notice, to be furnished - F W Woolworth Company, 90 NLRB 289 is In the event that this Recommended Order be adopted by the Board, the e ords "A Decision and Order" shall he substituted for the words "The Recommendations of a Trial Examiner" In the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Regional Director of the Second Region, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to members are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for the Second Region , in writing, within 20 days from the receipt of the Trial Examiner's Intermediate Report, what steps the Respondent has taken to comply therewith.19 19 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in District 50, United Mine Workers of America, Local 13908, by discharging or discriminating in regard to their hire and tenure of employment or any term or condition of employment of any of our employees. WE WILL NOT close our plant or threaten to close it in reprisal for our employees' concerted action to obtain the reinstatement of John Fitzgerald or any other employee or applicant for employment. WE WILL NOT advise our employees that the aforementioned union will do them no good. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right of self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except as authorized in Section 8(a) (3) of the Act. WE WILL offer John Fitzgerald reinstatement to his former or equivalent job. WE WILL make whole John Fitzgerald and those employees whom we locked out on Friday, August 4, 1961. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of District 50, United Mine Workers of America, Local 13908. SEABOARD DIECASTINO CORPORATION, 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. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone Number Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Gulf Oil Corporation and Warren Petroleum Corporation and International Union of Operating Engineers , AFL-CIO, Local 826. Cases Nos. 16-RC-3063 and 16-RC-3064. June 7, 1963 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before 137 NLRB No. 62.