Laclede Metal Products Co.

LACLEDE METAL PRODUCTS CO. 15 entitled to perform the work of operating the Ditch Witch for the purpose of cutting trenches in their line construction work at the San Diego Freeway project in the city of Long Beach, Los Angeles County, California. 2. International Union of Operating Engineers, Local Union No. 12, is not, and has not been, lawfully entitled to force or require George E. Miller Electric Company, a sole proprietorship, to assign the disputed work to operating engineers. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers, Local Union No. 12, shall notify the Regional Director for the Twenty-first Re- gion, in writing, whether or not it will refrain from forcing or re- quiring George E. Miller Electric Company, a sole proprietorship, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to operating engineers who are its members, rather than to electricians who are represented by International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 11. Laclede Metal Products Co. and Local Lodge 2187, International Association of Machinists, AFL-CIO. Case No. 17-CA-1985. August 20, 1963 DECISION AND ORDER On November 23, 1962, Trial Examiner William Seagle 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 attached Inter- mediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions,' and recom- ' Subsequent to the issuance of the Intermediate Report, the Supreme Court issued its decision in N L.R B v Erie Resistor Corporation, 373 U . S. 221, reversing the decision of the Court of Appeals for the Third Circuit and upholding the Board 's position We note and rely upon that decision here 144 NLRB No. 7. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations of the Trial Examiner with the modifications noted below.2 We agree with the-Trial Examiner's conclusion that the strike settlement agreement between the parties is no defense. The nine em- ployees who were unlawfully laid off because of the agreement had a statutory right to strike at the time they did so. We find that it was illegal for the Union and the Respondent to agree to any d^scrimina- tion against them for exercising this right, regardless of whether such agreement resulted from the Respondent's insistence or was wholly voluntary on the Union's part. See Erie Resistor Corpora- tion, 132 NLRB 621, 631, footnote 31. ORDERS The Board adopts the Recommended Order of the Trial Examiner. 'The Trial Examiner inadvertently stated that the Union gave notice of intent to re- open the agreement on March 1 , 1960 ; the correct date is March 1, 1962 The Intermediate Report does not include the text of the supplemental agreement as it was finally signed. The text is. It is agreed by the parties that the company will not discriminate in any manner against employees who were on strike from May 10 through May 18, 1962. It is agreed by the parties that the union will not discriminate against employees of the company who worked from May 10 through May 18, 1962 It is further agreed that the employees listed below will not be laid off during the first 18 months of term of the articles of agreement dated May 18, 1962: [the 11 names follow]. 3 The following provisions are hereby added to the notice set forth in the Appendix to the Intermediate Report. Immediately below the second paragraph: We WILL NOT refuse to bargain collectively with the Union by insisting upon a discriminatory super job security policy. The following note as to be added immediately below the signature line at the bottom of the notice • NOTE -We will notify any of the above- described employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon apph- caltion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948, as amended, after discharge from the Armed Forces. Amend the notice by changing the penultimate paragraph to read* This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed,' a complaint, dated July 25, 1962, was issued against the Respondent , charging it with violations of Section 8(a) (1), (3 ), and (5) of the Act. In essence, the complaint charged that the Respondent violated the Act by insisting that the Union sign a collective-bargaining agreement under the terms of which the Union agreed that 11 employees who had returned to work during a preceding strike would not be laid off during the first 18 months of the duration of the agreement, and by laying off, subsequently, various employees who would not have been laid off if the Respondent had followed its contractual seniority policy. Issue having been joined on these charges, Trial Examiner William Seagle held a hearing with respect to them at Lebanon, Missouri, on August 27 and 28, 1962. At the close of the taking of testimony, counsel for the General Counsel and for the ' The original charge was filed by the Union on May 24, 1962 ; a first amended charge was filed on May 31, 1962 ; and a second amended charge on July 9, 1962 LACLEDE METAL PRODUCTS CO. 17 Respondent waived oral argument but, subsequently, they filed briefs that have been duly considered. Upon the entire record in the case, and based upon my observation of the wit- nesses, I hereby make the following: FINDINGS OF FACT I. THE RESPONDENT The Respondent, Laclede Metal Products Co., is now, and at all material times has been, a Missouri corporation, maintaining its principal place of business at Lebanon, Missouri, where it has been engaged in the manufacture and sale of metal products. Among these products are automobile mufflers, guy anchors, boring augers, and various parts for Coca-Cola and coffee machines, farm equipment, and aircraft. In the course and conduct of its business, the Respondent annually ships products valued in excess of $50,000 to customers, and annually purchases goods and materials valued in excess of $50,000 from sources outside the State of Missouri. Jurisdiction is not disputed. II. THE LABOR ORGANIZATION INVOLVED Local Lodge 2187, International Association of Machinists, AFL-CIO, is a labor organization that has entered into collective-bargaining agreements with the Respondent. III. THE UNFAIR LABOR PRACTICES A. The strike and its settlement On or about February 17, 1960, a majority of the Respondent's production and maintenance employees, excluding office clerical employees, guards, professional employees, and supervisors within the meaning of the Act, such employees consti- tuting an appropriate unit for the purpose of collective bargaining, designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent, and on or about February 26, 1960, the Union was duly certified as such representative. At all times since such certification, the Union has been the exclusive representative of the employees in the aforementioned unit for the purposes of collective bargaining. On or about May 9, 1961, the Respondent entered into a collective-bargaining agreement with the Union for a period of 1 year, covering the employees in the aforementioned unit. Pursuant to the terms of this agreement, the Union duly gave notice-by letter dated March 1, 1960-of its intention to reopen the agreement. The first negotiating session was held on March 12, 1962, and was followed by six other sessions? In these negotiations, the Respondent was represented by Fred L. Hoffmeister, a management consultant in the field of labor relations; John T. Russell, the Respondent's personnel manager; and H. Wayne Scott, previously the Re- spondent's plant manager. The Union was represented in these negotiations by Norris L. Cochran, an International representative of the Union, and a negotiating committee of three of the Respondent's employees, namely, Norman Carlton,3 Richard C. Lathrop, and Temple Smittel. George T. Carr, the president of the Respondent, did not directly participate in these negotiations. The negotiations having resulted in an impasse, and the existing contract having expired, the Union called a strike, which commenced at 12:30 a.m. on May 10, 1962. The strike was 100 percent effective. The Respondent's plant was picketed, the picket line consisting normally of six men alternating on 4-hour shifts.4 The pickets walked back and forth across the road in front of the main entrance to the plant. However, there was no attempt to prevent anyone from obtaining access to the plant, nor was there any violence or damage to the property. Indeed, the strike may be said to have been conducted in very orderly fashion. During the progress of the strike, no one was prevented from entering the plant, or from leaving it, nor was anyone threatened in any way. The only "threat" made by anyone was that Cochran, the International representative of the Union, told some of the strikers, in 2 The sessions took place in a conference room adjoining the coffeeshop and restaurant of ]the Munger-Moss Motel The bargaining sessions thalt followed the subsequent strike were also held there, as was the hearing in the present proceeding. 3 He was also recording secretary of the Union. 4 However, on occasion, the picket line might be augmented by the presence of some of the other strikers 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answer to their questions, that under the terms of the union constitution they might be fined for crossing the picket line. When the strike occurred, the Respondent, which performed much of its work under contract, apparently attempted to meet its obligations by operating with its supervisory employees and salesmen . But, since such a solution could not prove practical for long, it soon attempted to induce some of its striking employees to re- turn to work. Under date of May 14, 1962, George T. Carr, the president of the Respondent, addressed a circular letter to all of its employees in which he reiterated the offer he had made to the Union before the strike was called,5 informed them of his intention to resume operations at 7 a.m. on May 21, 1962, "strike or no strike," and warned them that unless they reported for work at that time, replacements for them would be sought. To those strikers who returned to work, he offered the wage increases that had been rejected by the Union. In addition, he further declared as follows: We understand the word has been spread by someone that should you return to work, the later a contract is signed between the company and the union, that the union will see to it that you are out of a job. Nothing could be further from the facts! The union can neither hire you, nor fire you. That is the sole right of the company. The union cannot, under the law, force or coerce the company into firing you and we will not permit them to do so. Should you return to work the company will protect your job rights against any such union demand. You have nothing to fear in this respect. Some of the Respondent's striking employees returned to work while the strike was still in progress. George T. Carr himself escorted through the picket line a number of strikers who were returning to work on May 16. Carr testified that when a group of striking employees who had come in to settle up their insurance congregated in his office-this must also have occurred on May 16-and inquired about the pos- sibility of returning to work, he told them that they could go back at any time, and that he would attempt to protect them to the best of his ability. Similarly, Hoff- meister testified that, when two of the striking employees, Glen Still and Robert Still,6 spoke to him the morning of May 14 about going back to work, and expressed the fear that they might be fined by the Union for crossing the picket line and lose their jobs, he assured them that "the company would do everything in its power" to prevent this from happening. Glen Still, who was called as a witness by the Re- spondent, himself testified with respect to his conversation with Hoffmeister as follows: Q. Was anything said there by Mr. Hoffmeister in your conversation with giving you fellows protection? A. Yes, he said he'd give us protection of our job. He didn't say what kind or nothing. Q. Was there any mention of super seniority or extra seniority at that time? A. No, sir. Q. He just mentioned protection? A. He said if we wanted to go back, why, we would have protection of our job. Similarly, neither George Can nor Hoffmeister claimed in their own testimony that they specified in what manner they would protect any returning strikers in their jobs, and there is considerable reason to doubt that Can even mentioned the subject of protection when he spoke to some of the strikers in his office on May 16. Elmer Cook, one of the striking employees who was in Carr's office on this occasion, and who was called as a witness by the Respondent, testified that he did not hear any of the employees ask for any type of protection, whether in the form of superseniority, or in any other form, and that he did not hear Carr tell the employees that he was going to give them protection. Moreover, Can himself testified at another point in his testimony that at the time he took the group of employees through the picket line, 5 The Respondent had made an offer of a 7-cent per hour general increase in wages to be spread over a period of 3 years: 2 cents an hour being granted the first year, 2 cents the second year, and 3 cents the third. In addition, the Respondent had offered increases of 4 cents the first year, 4 cents the second year, and 1 cent the third year to cover 36 cases which involved inequities. The Respondent also attempted to justify this offer, which had proved unacceptable to the Union, by pointing out that it had experienced its worst busi- ness year since 1949, and had actually sustained an operating loss of $92,000 in 1961. 0 The latter is a son of the former. LACLEDE METAL PRODUCTS CO. 19 he merely told them: "If any of you boys want to come back to work the cards are in the rack and you come to work." In all, 11 of the Respondent's striking employees returned to work while the strike was still in progress. The following table gives, in column 1, the names of these employees; in column 2, the dates of their employment; in column 3, the order of their seniority; 7 and in column 4, their job classifications. 1 2 3 4' 1 2 3 4* Glen Still ------------- Sept. 18,1950 5th 10 Verhn Daniels -------- May 7, 1962 77th 14 Lorane Noble --------- June 6, 1960 64th 1 James Davis__________ ----- do-------- 78th 14 Raymond Pearce ------ Oct 29, 1952 18th 14 John M. Stewart_____ May 8, 1962 80th 14 Ronald Adair --------- May 2, 1962 76th 14 Chester Nelson_ ------- ----- do-------- 81st 1 Robert Still ----------- Feb. 23, 1959 51st 8 Robert Massey ------- May 7, 1962 79th 14 Donald Pearce -------- May 11, 1959 55th 7 * All employees were required to be classified within 60 days of their employment. There were in all 14 different job classifications. Classes 1 and 2 comprised punch press operators, class 3 consisted of power shear operators, class 4, machine operators (miscellaneous), classes 5, 6, 7, 8, and 9, various classes and types of welders, class 10, materials handlers, class 11, painters, class 12, repair and maintenance men, class 13, ship- ping clerks, and class 14, general labor. All of the 11 employees who returned to work during the strike, except Donald Pearce, did so on the morning of May 16, and Donald Pearce returned to work the morning of the following day. The table reflects the fact that no less than 6 of the 11 employees, constituting a majority of them, were hired shortly before the strike, and that every one of these 6 employees, except Nelson, was classified in general labor. In the late afternoon of May 16, Cochran, the Union's International representative, took the first step toward settlement of the strike. As George Carr drove up to the entrance of his office, Cochran, who saw him, walked up to him and inquired whether they could not get together on a contract. Carr replied that he would talk to his supervisors, and meet Cochran at the Munger-Moss restaurant in about half an hour. When they met pursuant to this arrangement, Cochran raised the question of getting some more money for the employees but Carr averred that he had about reached the bottom of the barrel. However, he promised to get hold of Hoffmeister, who was then in Kansas City, and to meet Cochran again the following morning. Carr and Cochran met again about 9:30 a.m. on May 17, but made no progress in arriving at an agreement, except that they set up a full negotiating session for the morning of the following day. Hoffmeister was still out of town, and Carr also wanted one George Robb, a managerial consultant from Chicago, who was seeking to set up a bonus incentive program across the country, to join the discussions. Ap- parently Carr thought that Cochran could use the bonus program as a sweetener to induce the acceptance of his final proposal before the strike. Pursuant to the arrangement made by Carr and Cochran the morning of May 17, management and union representatives met the morning of May 18 in the Munger- Moss conference room about 10 a.m. The union negotiating committee was the same as the one that had functioned in the negotiations preceding the strike and continued to represent the Union in two other meetings that took place that day. The manage- ment representatives at the morning meeting on May 18 were Hoffmeister, Russell, Richard Carr, who was production manager, and Robb. The latter took the floor and spent an hour explaining the bonus incentive program. After Robb and Richard Carr had left the meeting, there was an intermission, and Cochran and Hoffmeister, who were the principal negotiators for their respective sides, drifted into the Munger-Moss coffeeshop. Cochran again brought up the subject of getting some more money for the employees but received no more encouragement than he had received from George Carr. He thereupon decided to take the Respondent's prestrike proposal of May 8 back to the striking employees with whom a meeting on the picket line had been set up. Cochran must have communicated to George Carr and Hoffmeister his 4 The order of seniority has been determined on the basis of General Counsel's Exhibit No. 5, which lists in the order of their seniority all the employees of the Respondent em- ployed from July 1, 1961, to August 15, 1962. But since it is indicated in the exhibit that four of the employees listed, namely, W J. Stewart, Guy Neal, Bob Jacobs, and Larry Van Hooser, had their employment terminated before the strike, these employees have been disregarded in determining the order of seniority. Loyd Layman has also been dis- regarded for the reason that he was a supervisor. 727-083-G4-vol. 144-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intention to submit the proposal to the striking employees, for both of them testified that they were aware of his intention. The meeting on the picket line took place about 2:30 p m.8 About 80 percent of the strikers turned out for this meeting and about 75 percent of them voted by secret ballot to accept the proposal that Cochran presented to them, and to return to work on the terms which it contained. After the meeting, Cochran walked up to the en- trance to the plant where he encountered Russell, Richard Carr, and Hoffmeister, and informed these management representatives that "the membership had voted to return to work." Whereupon Hoffmeister told Cochran that these management representa- tives would meet with the union representatives again at the Munger-Moss in about an hour. The meeting so arranged, which was the second meeting on May 18, took place about 3:30 or 4:30 p.m. When the union representatives entered the Munger-Moss conference room, the management representatives were shuffling together various pages of a contract, some of which consisted of pages of the old agreement in which no changes would be made. Hoffmeister suggested to Cochran that while the agree- ment was being assembled that they go into the coffeeshop. After they arrived there, Hoffmeister first presented Cochran with a draft of a proposed supplemental agree- ment-socalled because it was to constitute a supplement to the main agreement which would be signed-under the terms of which the 11 striking employees who had already returned to work would be guaranteed against being laid off during the dura- tion of the collective-bargaining agreement to be negotiated between the Union and the Respondent (this agreement was to run for a period of 3 years). The text of this supplemental agreement was as follows: It is agreed by the parties that the company will not discriminate in any man- ner against employees who were on strike from May 10 through May 15, 1962. It is further agreed that the Union, its International, its Local Lodge #2187, and its individual members will not discriminate, harass, or in any way in- timidate any employee of the Company who worked during the period May 10 through May 18, 1962. It is further agreed that the employees listed below will be the last to be laid off in case lay-off becomes necessary during the term of the Articles of Agree- ment dated May 18, 1962. [There followed the names of the 11 striking employees who had already returned to work. These will hereinafter be referred to, collectively, as the Eleven.] In testifying about the origin of the supplemental agreement, Hoffmeister conceded that he was the author of the idea underlying it, and of the first draft of the agree- ment, which was handwritten. According to Hoffmeister, this draft was typed in George Carr's office sometime between 12 and 1 o'clock on May 18. George Carr testified that before the supplemental agreement was presented to the Union, he read it to the Eleven, and suggested to them that they go down to the scheduled meeting on the picket line and vote on the terms of the contract. Carr further testified that he did not believe that any of the Eleven acted on his suggestion because one or two of them indicated to him that they had no intention of voting. As soon as Cochran had read the supplemental agreement, he at once told Hoff- meister that he would have nothing to do with any agreement "protecting scabs," and that the agreement was illegal. He also suggested to Hoffmeister that he get in touch with Robert Donnelly, who had been the Respondent's attorney when the previous contract between the Union and the Company had been negotiated. Hoff- meister attempted to reach Donnelly but the latter was running as a candidate in a congressional primary and was not available. Thereupon, Hoffmeister telephoned to Ransom A. Ellis, the attorney who represents the Respondent in the present pro- ceeding and who was then in Kansas City. After explaining the nature of the pro- posed supplemental agreement to the attorney, he received the advice that the pro- posed agreement was legal. In the meantime, and while this legal advice was being sought, Cochran called the other union representatives aside 9 and acquainted them with the terms of the proposed supplemental agreement. The union representatives agreed with Cochran that they should have no part of it. After having cups of coffee in the Munger-Moss coffeeshop, the union representatives accompanied Coch- ran to his room in the Munger-Moss. Hoffmeister soon came to this room and 8 From the various time sequences established by the record , I must infer that George Carr must have been mistaken in testifying that the striking employees voted at about 1 p m to return to work. 9 Richard Lathrop had already left , however, in order to attend to some personal business. LACLEDE METAL PRODUCTS CO. 21 arranged with the union representatives to have a third meeting with them at 7:30 that night. However, this meeting was to take place at the Laclede plant. After Hoffmeister left, the union representatives started calling up the strikers and asking them to report to the picket line that night. Before the meeting started the night of May 18, the strikers marched up to the plant entrance in a body but the members of the union negotiating committee de- tached themselves from this larger body and proceeded to the plant entrance, where they were met by Hoffmeister and Russell and taken into the plant. When nego- tiations were resumed, Hoffmeister told Cochran that he had something that the Company liked and that he thought the Union would buy. He thereupon handed Cochran a revised form of the supplemental agreement that contained some changes in language but that did not materially change the effect of the agreement. When Cochran indicated that he did not like this any more than the original, Hoffmeister offered to reduce from 3 years to 18 months the period during which the Eleven would be protected against layoff. Cochran asked for an opportunity to consult privately with his committee and the request was granted. The members of the union committee decided that they would not sign the supplemental agreement even with the guarantee against layoff to the Eleven reduced to 18 months, and they so informed Hoffmeister. But Hoffmeister told them there would be no contract at all unless they signed the supplemental agreement, and, finally, they agreed to do so. They signed the supplemental agreement actually before they had read the main body of the contract.io After the agreement, with its supplement, had been signed,ii Cochran and the union negotiating committee went out to the picket line where quite a number of the striking employees were still waiting. These employees asked Cochran what had happened, and he told them that an agreement, together with a supplement, had been reached, and that he would conduct a meeting the following Monday evening, May 21,12 in his room at the Munger-Moss. However, he also told them to report for work in the meantime, but not all of the strikers were on the picket line, and hence not all of the striking employees came to work on Monday morning, May 21, when the plant resumed operations. It was not until the meeting of the evening of May 21 that Cochran explained to the employees the nature of the supplemental agreement which had been signed. B. The legality of the supplemental agreement Throughout the hearing counsel for the Respondent, and on occasion, other participants, including some of the witnesses, referred to the provision of the sup- plemental agreement that guaranteed the Eleven against layoff for a period of 18 months, as a grant of superseniority to them. It is apparent, however, that the use of the term "superseniority" in connection with this provision is a misnomer. What the supplemental agreement granted to the Eleven was actually super job security for a period of 18 months. If superseniority had indeed been granted, those employees of the Respondent who had many years of service would have had at least some chance of survival in a layoff. But, under the terms of the supplemental agreement, relative seniority (as well as superior ability) was made a wholly immaterial factor in any layoff, and even the Respondent's oldest employees were afforded absolutely no chance of survival in competition with the Eleven as long as the agreement was in force. The only saving grace of the supplemental agreement in the present case is that it provides super job security for a relatively brief period of 18 months Counsel for the Respondent relies on such cases as N.L.R.B. v Potlatch Forests, Inc., 189 F. 2d 82 (C.A. 9), and Erie Resistor Corporation and International Union of Electrical, Radio and Machine Workers, Local 613, AFL-CIO v. N.L.R B., 303 F. 2d 359 (C.A. 3), in which these courts held that an employer may properly grant superseniority to replacements for strikers and returning strikers if his motive is to insure the continued operation of his plant rather than to penalize the strikers. It seems to me, however, that the reliance of counsel on these cases is, for a variety of reasons, misplaced. In the first place, since super job security is a more extreme form of discrimina- tion than superseniority, a different result might even be reached by a court that permitted an employer to award superseniority as a means of continuing production. "Ultimately, the collective bargaining agreement was printed, and the revised form of the supplemental agreement, which was in typewritten form, was attached to it "It was signed, on behalf of the Respondent, by George T Carr, its president, and by Russell and Hoffineister, and, on behalf of the Union, by Cochran and the three members of the union negotiating committee i' 1lay 18, the day the strike was settled was a Friday. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An employer who guaranteed a group of employees against layoff for a given period might find himself in a position where he might have to continue production although not warranted by demand. Far from protecting his business, he might put himself in a position of undermining it. In the second place, insofar as the cases involving superseniority do have a bear- ing on the question of the legality of super job security, the judicial decisions do not all favor superseniority. The decisions of the Ninth and Third Circuit Courts of Appeal are in direct conflict with the decision of the Sixth Circuit Court of Appeals in Swarco, Inc. (Swan Rubber Company Division of Amerace Corp.) v. N.L.R.B., 303 F. 2d 668. In the Swarco case, the court held that, although "an employer has a right to keep his plant in operation during an economic strike, an honest motive alone for the purpose" does not allow him to engage in discrimination . The Supreme Court of the United States has granted certiorari, moreover, in the Erie Resistor case, and the conflict of views may be resolved, therefore, in favor of those of the Sixth Circuit. In the third place, pending the resolution of this conflict, whatever my own views, I am bound by the views of the Board on the subject of superseniority and the Board holds that superseniority is a form of discrimination with respect to hire and tenure of employment in violation of Section 8(a) (1) and (3) of the Act; that insistence of an employer upon the inclusion of a provision for superseniority in a collective- bargaining agreement is a violation of Section 8(5) of the Act; and that such in- sistence will convert an economic into an unfair labor practice strike if it has the effect of prolonging the strike. The views of the Board have been fully set forth in Erie Resistor Corporation, 132 NLRB 621. Finally, the decisions in Potlatch and Erie Resistor would not actually be dis- positive of the present case for the additional reason that the Respondent has not succeeded in showing that the grant of super job security to the Eleven was necessary to keep the plant operating during the strike. The evidence fails to show that the Respondent ever made a promise to its em- ployees that they would be granted the type of super job security that was ultimately embodied in the supplemental agreement. George Carr, in his letter of May 14 to the employees, simply promised those that returned to work that the Company would resist any attempt on the part of the Union to coerce it into firing them, and that it would protect them in their job rights "against any such union demand." [Emphasis supplied.] When George Carr told a group of the striking employees in person that he would protect them in their jobs, he was expressing, obviously, the same intention that he had declared in his letter. This intention was simply to resist a type of union pressure which, in any event, would have been in violation of the Act. As for Hoffmeister, apart from the fact that his authority to make promises in this respect that would be binding on the Respondent has not been shown, his promise to the Stills was essentially the same as that of George Carr. Insofar as Hoffmeister promised, additionally, that he would prevent the Union from fining them, he was making a promise that was beyond his power of implementation, as well as beyond that of the Respondent. As both Can and Hoffmeister conceded in their testimony that they did not specify the type of protection which they had in mind, there was hardly any promise made to the employees that they would be protected in any particular way, and there was no promise that the Respondent was bound to keep in effecting a settlement of the strike. It may be said, therefore, that all of the Eleven who had returned to work by May 17 did so without the guarantee that was contained in the supplemental agreement. The testimony of both Carr and Hoffmeister makes it clear that the idea of guaranteeing the Eleven against layoff was not even conceived until May 18 when the strike was actually settled. Moreover, the idea was not even communi- cated to the Union, or to any of the striking employees until after the strikers had already voted to return to work, and it was known to the Respondent that they would return to work. The insistence of the Respondent upon granting super job security to the Eleven under these circumstances makes it manifest that its motive was simply either to punish the strikers or reward those who had returned to work while the strike was still in progress. This brings the Respondent's conduct within the scope of the decision in Olin Mathieson Chemical Corporation, 114 NLRB 948,13 rather than in Potlatch or Erie Resistor. "'Certiorari was granted in this case when the Fourth Circuit Court of Appeals sus- tained the Board's holding that the grant of superseniority to replacements and returning strikers violated Section 8(a) (1) and (3) of the Act Certiorari was granted on the basis of an asserted conflict with the decision in the Potlatch case but when it subsequently appeared that the holding in Olin Mathieson rested on a finding that the award of supei- LACLEDE METAL PRODUCTS CO. 23 In realization of the weakness of its case, apparently, the Respondent made a determined but unsuccessful attempt at the hearing to show that the strike was dis- orderly. It now argues that the provision of the supplementary agreement granting super job security to the Eleven was made necessary by the threats inherent in this alleged disorder. This is a frivolous argument. The remedy for disorder or threats of disorder is police protection. It certainly does not lie in any grant of super job security, superseniority, or in any other form of special rights. Indeed, if the em- ployees of the Respondent who did not return to work during the strike were-at all given to disorder, the grant of special rights to the strikers who had crossed the picket line during the strike would only tend to provoke further disorder. There is equally no merit in the Respondent's defense that the Union signed the supplemental agreement. Neither an employer nor a union may insist upon the incorporation of a provision in an agreement which would be illegal under the provi- sions of the Act.14 C. The layoffs Subsequent to the resumption of operations, the Respondent laid off various em- ployees. The General Counsel does not contend that layoffs were not necessary. He does contend, however, that all of the Eleven, except Glen Still and Raymond Pearce, would have been laid off, and that 25 of the Respondent's employees, who were laid off, on various dates following the resumption of operations, would not then have been laid off if the Respondent had applied its contractual seniority policy rather than the terms of the supplemental agreement. He, therefore, charges that these layoffs were discriminatory. The following table gives, in column 1, the names of each of these 25 employees; in column 2, the dates when they were hired; in col- umn 3, the order of their seniority; in column 4, their job classifications; and in column 5, the dates of their layoffs after the termination of the strike. (1) (2) (3) (4) (5) Bernal Anderson-------------------------------------- June 24,1960 70th----- 1 May 21. Billy James ------------------------------------------- May 31,1960 61st_____ 14 Not re- instated. Keith Mizer------------------------------------------ Apr 5, 1961 72d______ 14 Not re- instated. Verlin Weaver---------------------------------------- -----do-------- 73d_.____ 14 Not re- instated. Eddie Pearce_____________________ ------- June 20,1960 69th_____ 14 May 21. Richard Ware----------------------------------------- Oct 16,1961 75th----- 14 May 21 Louyal Anderson__________________ ------------------ May 31,1960 62d------ 14 May 23 Buster Boston---------------------------------------- June 6,1960 63d______ 14 May 23 James Pearcy ----------------------------------------- June 10,1960 67th_____ 14 May 23 Stanley Ruble---------------- --------------- --------- Apr 4, 1961 71st.____ 14 May 23 John C. Crain----------------------------------------- Aug 8,1955 26th_____ June 1 James Boyd ------------------------------------------- Apr 3,1956 38th----- June 1 Richard Lathrop______________________________________ Apr 5,1956 39th_____ 8 June 1. Robert Roy Haney------------- ---------- ------------ May 18,1956 42d______ 14 June 1 Joe Ellis---------------------- ----------- Mar 24,1952 13th----- 8 June 1. Wayne Wells----------------------------------------- Oct 11,1954 22d______ 3 June 1. James Collier----------------------------------------- Jane 15,1955 25th_____ 2 June 1. Loyd Parker------------------------------------------ Aug 29,1955 29th_____ 10 June 1. Ted Weaver ------------------------------------------ Mar. 5, 1956 33d______ 4 June 1 Loyd Moore------------------------------------------ Mar. 7,1956 34th----- June 1 Otis Houser ------------------------------------------- Mar. 8,1956 35th_____ 14 June 19 Owen Claxton --------------------------------------- Mar. 27,1956 36th----- 7 June 19. Howard Blattel--------------------------------------- June 30,1954 20th----- June 27. J. T. Simmons---------------------------------------- June 3,1955 24th_____ June 27. John Marcum----------------------------------------- Apr. 13,1953 19th_____ 2 June 27. seniority was motivated by a desire to punish the strikers rather than by economic con- siderations, the decision of the Fourth Circuit was affirmed per cieriam without reaching the issue presented in the Erie Resistor case (325 U.S. 1020) 14 See opinion of Harlan, J., in N.L.R B. v. Borg-Warner Corporation, 342 U.S. 342, 360, and cases there cited. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the complaint also alleges that the 25 employees who were laid off after the strike and whose layoffs are charged to have been discriminatory, 15 have not been recalled by the Respondent, the record shows that 12 were recalled to work on various dates in July and August 1962. Wayne Wells was recalled on July 1; Otis Houser on July 3; Howard Blattel on July 6; and Richard Lathrop on July 30. On August 13, the Respondent also recalled 8 more of the 25 employees, namely, Stanley Ruble, John Crain, James Boyd, James Collier, Loyd Moore, J. T. Simmons, John Marcum, and Owen Claxton. The record shows also that two of the Eleven have quit their jobs. Morris Stewart quit on July 11, 1962, and Robert W. Massey on July 24, 1962. Another one of the Eleven, Donald Pearce, has been idled by illness since July 20, 1962.16 However, since these events occurred after the layoffs of the Twenty-five, they do not affect the question whether these layoffs were discriminatory. Before considering the nature of the Respondent's policy in layoffs prior to the strike, it is necessary to understand the organization of its plant. There appear to be, for all practical purposes, three manufacturing departments in the plant: the press department, where the prime manufacturing operations are performed; the assembly department, where the bonderizer, paint, muffler, and anchor lines are located, and which is dependent upon the parts turned out in the press department; and, finally, the welding department. The plant normally has had both a day and a night shift but in slack periods the shifts might be integrated. In past years the total number of employees working in the plant has varied from a minimum of 50 to a maximum of 100. When the Respondent resumed operations after the strike, there were, including the Eleven who had already returned to work, 83 rank-and-file employees on its payroll 17 but 2 of these were in an inactive status.18 As already indicated, the Respondent's employees were classified into 14 groups. This system of classification had been first established on March 18, 1957. Under it, an employee has normally been classified about 60 calendar days after the date of his employment. The classifications have been made by a committee of four, two of whose members represent the management and the other two the Union. From time to time, the classifications of the employees have been changed, and to receive a classification, particularly a higher one, an employee must show that he is qualified. It must not be assumed, however, that a change from one classification to another necessarily carries with it an increase in pay, for the pay rates in various of the classifications are the same. It must also be realized that, since the Re- spondent operates usually with fewer than 100 employees, and there are 14 different classifications of employees, some classifications will be represented by only a few employees. Considerably more than half of the employees were, actually, either punch press operators, spot welders, or general laborers. There were 17 punch press operators, 12 spot welders, and no less than 24 employees in class 14 (general labor).19 The most valuable and least dispensable of the Respondent's production employees were undoubtedly the punch press operators, all but two of whom were No. 1 operators. On the other hand, the employees whose jobs, as a rule, required little, if any, skills, were those in class 14, the omnibus labor category. With such an organization of its plant, it would be surprising if the Respondent were able to apply, invariably, a rule of plantwide seniority in the layoff and recall of employees. The application of such a policy might result in the janitor operating a punch press, or a shipping clerk doing spot welding, or operating a forklift. Ac- tually, the policy followed by the Respondent in the layoff and recall of employees did take such factors into consideration. Seniority, determined by plantwide service, governed, but individual suitability was not entirely disregarded. While, in actual practice, this meant that usually seniority would govern, this resulted primarily from the fact that ordinarily marked variations in ability in performing the same type of work would not exist, and, secondarily, from the fact that approximately a third of the employees were classified as general laborers in class 14 in which classification special qualifications were not, as a rule, required. 15 These employees will be referred to hereinafter, collectively, as the Twenty-five 19 James Davis, one of the Eleven, testified that he "thought" that Ronald Adair was in the Army but this is not confirmed by General Counsel's Exhibit No 5 17 This number is deduced from General Counsel's Exhibit No. 5, which lists 88 names. However, as previously indicated, one of these was that of a supervisory employee and four others were those of terminated employees 19 These two are Harold Johnson, who has been in a layoff status since February 8, 1962, and Larry Barrett, who was in military service from January to July 1962 10 These figures are based on General Counsel's Exhibit No. 5 which lists 81 classified and 2 unclassified employees. LACLEDE METAL PRODUCTS CO. 25 A certain degree of flexibility in applying seniority was recognized, moreover, in the 1961 and 1962 collective-bargaining agreements, which had identical provisions, as follows: The length of continuous service of an employee of the Company shall de- termine the seniority of the employee. Seniority shall be applied on a plant- wide basis within the bargaining unit. In case of layoff, recall and promotion, the following factors shall be con- sidered: (a) Ability to do the work; (b) Seniority. Where factor (a) is rela- tively equal, factor (b) shall be the governing factor. In case of layoff and recall, the determination of factor (a) shall be made by the Company. Its decision in this respect shall be final, and shall not be subject to the grievance procedure (Article XX) nor to arbitration (Article XXI). The General Counsel exaggerates when he takes the position that in the past the Respondent had invariably applied seniority on a plantwide basis in selecting employees for layoff, and that it had invariably shifted more highly rated employees to lower classifications when layoffs were impending. It is true that George Carr who, as president of the Respondent, would be in the best position to know what its policies were, testified that "normally" employees would be laid off in the order of seniority, but such a policy would still allow room for occasional exceptions. A look at the layoffs at the Respondent's plant prior to the strike should furnish a more reliable insight into the Respondent's policies than can be gained by looking only at the layoffs after the strike, since the prior layoffs are not involved in con- troversy. For this purpose, the ideal silent witness is General Counsel's Exhibit No. 5, which not only lists the Respondent's employees in the order of their seniority and gives their job classifications but also records their pay rates and the dates of their layoffs and recalls in the second half of 1961 and in 1962. The data in the document indicate that, while seniority was calculated on a plantwide basis, and was normally applied in laying off and recalling employees, the application must have been in- fluenced to some extent by other considerations than strict seniority. The principal layoff dates prior to the strike were July 17, 1961, when 5 employees were laid off; July 28, 1961, when 15 employees were laid off, December 18, 1961, when 7 employees were laid off; December 25, 1961, when 7 more employees were laid off; December 26, 1961, when 26 employees were laid off; and January 1, 1962, when 27 employees were laid off. The layoffs in 1961 were for fairly long periods. The layoffs on July 17 were all for more than a month, and in one instance for almost 2 months; 12 of the 15 layoffs on July 28 lasted for about 21/2 months; 5 of the 7 layoffs on December 25 lasted a little less than a month; and 11 of the 26 layoffs on December 26 lasted until Jan- uary 21, 1962, or almost a month, while 5 of the 26 layoffs were not terminated until March 4 or 5, 1962. On the other hand, the layoffs on January 1, 1962, were, for the most part, very brief: 17 of the 27 layoffs on this date lasted only a week, and all but one of the others lasted only about 3 weeks. Looking first at the layoffs of the No. 1 press operators, it appears that Howard Blattel (20),20 who is one of the twenty-five, was not laid off at all in 1961, although he had less seniority than two other No. 1 press operators, Charles McClanahan (10), who was laid off from December 25, 1961, to January 7, 1962, and Ralph Mace (14), who was laid off from December 26, 1961, to January 7, 1962. Similarly, ,in the case of the No. 2 press operators, Dwight Cunninghan (50) was not laid off at all in 1961, although John Marcum (19), James Collier (25), and Harold Johnson (49) were all laid off on December 26, 1961, for a period of 3 or 4 weeks. As for the welders, of whom there was such a considerable number, Owen Clax- ton (36), a welder in class 7, who is one of the Twenty-five, was not laid off at all in 1961, although he had less seniority than Opel Morris (11), who was laid off from December 26, 1961, to January 7, 1962. A similar disregard of seniority was manifested in the layoffs of one of the welders in class 8 (spot welders). Tommy Hess (31), Richard Lathrop (39), and Ronald Hess (43) were not laid off at all in 1961, although Floyd Bilger (27) was laid off from December 12, 1961, to Jan- uary 18, 1962. Considering, finally, class 14, the category of general labor, it appears that Billy Knapp (30) and Elmer Cook (40) were not laid off at all in 1961, although Ray- mond Pearce, one of the Eleven, and Otis Houser, one of the Twenty-five, were laid off on December 26, 1961, and were not recalled until January 14 and 21, 1962, respectively. Also Richard Ware (75), who was one of the Twenty-five laid off after 20 The figure in parentheses after the name of a particular employee will denote the order of his seniority. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike, was not laid off until December 12, 1961, although five other class 14 employees, who had a good deal more seniority than he had, had been laid off on July 17, 1961, and five other class 14 employees, who had a good deal more seniority than he had, had also been laid off on July 28, 1961. It as apparent, however, that, although the layoffs prior to the strike were extensive, the departures from seniority were not frequent. It is interesting, too, that three of the Twenty-five, Howard Blattel, Owen Claxton, and Richard Lathrop, were not laid off at all in 1961, although their seniority did not entitle them to be retained, and that two of the Eleven, Raymond Pearce and Donald Pearce, were both laid off in 1961, Raymond Pearce being laid off once, and Donald Pearce twice. Yet, not- withstanding the fact that Raymond Pearce was laid off in 1961, it is conceded in the complaint that his retention after the strike was not discriminatory. The layoffs after the settlement of the strike were determined by a group of the supervisory staff that consisted of John Kenneth Carr, the press department foreman; Frankie Thomas, the plant superintendent; Richard Carr; and Lowell Adair, who, as the Respondent's production control manager, participated in the discussions of this group on a consulting basis. He was the Respondent's principal witness with respect to the layoff of the Twenty-five. Adair, who is an industrial engineer, dem- onstrated, in his appearance on the stand, that he was full of the mumbo-jumbo and shibboleths of his craft or profession. At times he indulged in absurdities that went far beyond any claim of competence that he, conceivably, could possess. His testi- mony is always to be taken cum grano salis. If one were to take him literally, seniority was only of the very slightest importance in determing who should be laid off after the strike. If one is to credit Adair, the fate of almost every employee, whether in class 1, 3, 8, or 14, depended on his ability. Adair even assayed the role of jurist and gave it as his considered opinion that, notwithstanding the provision of the supplemental agreement prohibiting the layoff of any one of the Eleven for a period of 18 months, the Respondent was at perfect liberty to lay off any one of them if his ability did not measure up to that of other employees! Adair referred con- stantly to his time studies, although some of them were as much as 7 months old, and in the case at least of the general laborers in class 14 were, for the most part, made on a group rather than on an individual basis. In any event, as he himself was forced to admit, the time studies did not constitute the only factors in deciding who was to be laid off, and, actually, he could have had only limited knowledge of the capacities of the employees, since he had not been employed by the Respondent for very long.21 In attempting to explain and to justify the layoffs of the Twenty-five, Adair dealt with them individually but by labor classifications. There would be little point, however, in discussing each layoff individually for the simple reason that almost invariably he discussed the layoff of a particular employee who is among the Twenty- five only in relation to the retention of other employees who are not among the Eleven, and whose retention, whatever the justification was, could not be said to have been discriminatory. Thus, except in a very few instances, he failed to attempt to meet the real issue. In general, it may be said that the justifications advanced by him for the layoff of a particular highly rated employee who had greater seniority than others who were retained were either that he could not operate a particular press or other machine for which the work was available, or that his job had been abolished, or that his work-usually as shown by his time studies-was utterly unsatisfactory, or substandard, as he preferred to call it. One cannot always be sure, moreover, that he had clearly in mind the employee whom he was discussing. It was shown that he confused Billy Mizer, a No. 1 punch press operator, with Billy James, who performed general labor in class 14, and the record indicates that he also confused Ted Weaver, a machine operator with Verlin Weaver who was also in class 14. Adair also sometimes had an employee demoted, because of his substandard performance, to a job classification which is wholly in- consistent with the job classification shown for him on General Counsel's Exhibit No. 5, which, of course was prepared by the Respondent, and which must be assumed to be accurate. Two of the employees whose work was regarded by Adair as substandard are Bernal Anderson, a No. 1 punch press operator, and Joe Ellis, a spot welder (class 8). But, when Adair was asked whether he would deny a conversation with Anderson in which be had told him that he had just finished a 2 weeks' test run on him, and found that he "made as many parts as anyone else, if not more, and as good a quality," Adair replied: "He was coming up, I do not deny that." As for Ellis, Adair had him demoted to bonderizer line because of his substandard performance, although a Adair was not employed by the Respondent until September 3, 1961. Therefore, when the strike started, he had been with the Respondent for only about 9 months. . LACLEDE METAL PRODUCTS CO. 27 Ellis was one of the Respondent's oldest employees, had greater seniority than any other spot welder, and received the highest rate of pay of any spot welder. Ellis' demotion, moreover, is not reflected on General Counsel's Exhibit No. 5. Among the Respondent's more highly rated employees, whose layoffs are most difficult to understand, are the punch press operators, since they were regarded as the most valuable of the Respondent's employees. Yet no less than eight of the Twenty-five were punch press operators. There is explicit evidence, moreover, that, ordinarily, when layoffs occurred, the Respondent made every effort to find other work for them to do. Thus, John Kenneth Carr, their foreman, testified: Q. These press operators, they are skilled people, aren't they? A. Yes, sir. Q. As you said, on the morning of May 21, there you had press operators running out of your ears, didn't you? A. That's right. Q. You didn't use them all as press operators , did you? A. We had to work the men, I believe, two hours. I did have two new men that started the day before the strike that I let go after two hours. Q. You kept the press operators, though? A. Yes, sir. Q. These people are skilled, as a general rule, you try to retain steady em- ployment for them, they would be hard to replace? A. That's right. It also happens that the punch press operators who were laid off all stood very high in the order of seniority, except Bernal Anderson. Nevertheless, they were laid off, while Lorane Noble (65), and Chester Nelson (87) were retained. Need- less to say both Noble and Nelson are to be found among the Eleven whose tenure was guaranteed by the supplemental agreement . Adair's explanation for the reten- tion of Noble and Nelson was that Noble was unusually proficient in operating on the night shift a No. 2 version press which was difficult to operate without help at night and that Nelson was selected to operate a heavy 300-ton version press that only he could operate when Loyd Layman, the employee who operated this press, was promoted to a foremanship. But Adair also testified that the day and night shift had been amalgamated after the strike, and it would seem, therefore, that there should have been no difficulty in operating the No. 2 version press on the day shift. As for Nelson, according to Adair himself, James Boyd, one of the No. I punch press operators who is among the Twenty-five, was so versatile that he could operate any type of press. "Whenever we would need a press operator," Adair testified, "we would use him." Moreover, Billy Mizer, a No. 1 punch press operator, who was also laid off after the strike on June 1 but whose layoff is not charged as discrim- inatory in the complaint , testified (and there is no good reason to doubt his testi- mony) that he was familiar with the qualifications of Nelson as a press operator, and that he could do "just what Chester Nelson did." But even if the testimony of Adair concerning Noble and Nelson could be taken at face value, again, it would not answer the question, which is the crucial one, why other work was not found for them by dismissing, at least temporarily, any of the very recent class 14 employees who are among the Eleven. Billy Mizer specifically testified that he worked for a week after the strike as a general laborer in class 14 at the lower rate of pay in that classification. The work that he did was greasing aluminum elbows. Moreover, the testimony of John Kenneth Carr establishes as a general practice the use of the more highly rated employees to perform general labor during slack periods. Since most of the employees among the Eleven whose layoffs are charged as dis- criminatory were in class 14, and probably all of them were performing general labor after the strike,22 the most challenging task faced by Adair was justifying the layoffs of the employees in class 14. With reference to them, his explanations were more muddled and incomplete than in the case of the emplovees in the other classi- fications. He did not explain at all why Billy James, Verlin Weaver, or Richard Ware were laid off. He praised Otis Houser, a totally blind employee, for the phe- nomenal rate he achieved in twisting wires in the anchor assembly line but also failed to get around to explaining why he had been laid off. The layoffs of most of the employees in class 14 were attributed by Adair to the discontinuance of the 22 Wayne Wells, a shear operator who is among the Twenty-five, and who visited the plant during the strike , testified that all of the Eleven, except Noble and Nelson, were performing general labor. , 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assembly of anchors on the night shift, to a reduction in force on the anchor line to effect a more economical operation, and to other efforts at economy. If Adair was far from clear in explaining the layoffs of the individual employees among the Twenty-five who are in class 14, he at least avoided contradictions and absurdities. He fell into both, however, when he attempted to explain the retention of the class 14 employees among the Eleven. His explanation of the phenomenon of industrial longevity involved in the miraculous escape of these employees through eight different layoffs in a period of about 2 months was that these employees had performed veritable prodigies of labor during the strike. Despite their lack of ex- perience, he maintained, moreover, that they continued to make an enviable record after the strike was ended, displaying a skill and productivity that was greater than that of any of the older employees. He implied that their efforts called for a reward, which was keeping them on the job 23 But this is only another way of saying that they were being kept because of the supplemental agreement. Adair's testimony with respect to the layoffs in class 14 must be rejected as in- credible for many reasons. His position with reference to the jobs in class 14 was, essentially, that like the jobs in the other classifications, they required special skills. While a few of the jobs in class 14 may have consisted of the operation of machines that required some skill, which might take some time to acquire, this was not gen- erally true in this labor classification. Adair stressed that the jobs in class 14 were different but differences do not in themselves imply a requirement of special skills. It was practical, therefore, in laying off employees to adhere rather closely to seniority. Moreover, in testifying concerning the layoffs of the class 14 employees, Adair himself unwittingly supplied the evidence that contradicts and refutes his own position. In supplying the reasons for the layoffs of particular employees in class 14, he sometimes specified precisely what their jobs were, and thus made it evident that they were jobs that required no skill. Thus, he mentioned a number of such jobs, namely, twisting wires in the assembly of anchors; performing packaging and shipping operations; janitorial work; and the removal of splatters in the welding de- partment which was simply another type of cleanup job. Adair also made it evident that most of the class 14 employees performed rather simple operations on two assembly lines, the mufflers assembly and the anchor assembly lines. Adair was specifically asked how long it would take to learn a job on the muffler line, and his reply was that some of the jobs could probably be learned within a week's time. But the most telling blows struck by Adair against his own position are to be found in the very words of praise which he had for the employees in class 14, who had been hired just before the strike. If Adair is to be believed, these men, with only a few days' experience, were, during the strike, making better performance records than the older employees with years of experience! If this were indeed so, there is no good reason to believe that jobs in class 14 were difficult to learn. Morover, Adair re- vealed that some of the new employees who worked during the strike performed spot welding and operated baffle-inserting machines and precurl machines which could not be learned in a short period of time. If this was possible, then, surely, the even simpler jobs on the assembly lines would require no special skill or training. In testifying about work in other classifications, Adair had the field pretty much to himself. But, although very few of the employees in these other classifications had been called upon to testify, a considerable number of employees in class 14 were called as witnesses by either counsel for the General Counsel or for the Re- spondent, and their testimony furnishes a further basis for discrediting Adair's testi- mony about the class 14 employees. Thus, Louyal Anderson, who was called as a witness by the General Counsel, credibly testified that when he was hired he was told that no special skills were required for work in class 14. Among the simple jobs performed by him was boxing anchors. After Anderson had been laid off, he went to see his foreman to inquire when he would be called back to work, and he saw some of the employees hired just before the strike doing the type of work that he had done and could do. He identified these employees as Ronald Adair, Verlin Daniels, James Davis, Morris Stewart, and Robert Massey. There were a number of class 14 employees who were called as witnesses by the Respondent. One of them, Elmer Cook, described his job as inspecting parts and hanging them on the line, and this certainly does not seem to be a job that calls for special skills. Three of the other class 14 employees, who testified on behalf of the Respondent, are among the Eleven. Raymond Pearce described his job as "work on the metal line" but, despite the fact that he had been working for the Respondent for over 10 years, he did not even know, and could not even state what job classification c 23 The way Adair put it was: "They performed, in my opinion, above standard, and their conduct was exemplary to say the least." [Emphasis supplied.] LACLEDE METAL PRODUCTS CO. 29, he was in! Two others of these employees, Verlin Daniels and James Davis, who were hired just before the strike, did not in their appearance on the stand suggest that they were capable of the feats of performance attributed to them by Adair. They seemed extremely young and unprepossessing. Daniels, who was only 20 years of age, had been applying for work at the Respondent's plant since the age of 17, and Davis, who was 22 years of age, had also been applying since the age of 18 or 19, but neither had met with success until shortly before the strike. The testimony of another one of the class 14 employees, Billy James, who is one of the 25 called as a witness by the General Counsel, also strongly suggests that in the layoff of class 14 employees at least, seniority was normally the overriding con- sideration. James testified concerning an incident involving himself and Buster Boston, whose job was to sweep up the trash in the plant. It seems that James, the precise nature of whose job is not established, was laid off in 1961 but when a union committee protested to management that James had more seniority than Boston, the latter was laid off and James was put on his sweeping job, although the management thought that Boston would be better at this job. This incident is particularly signifi- cant because James had only a week's more seniority than Boston. It is also sig- nificant, perhaps, because the management-in the person of Adair-did not seem to think as well of Boston in 1962 as in 1961. Adair testified that Boston was re- placed after the strike by five trash cans. It seems that Adair discovered that Boston was addicted to using narrow brooms, which Adair denominated "witch-riding brooms," rather than a wider type of broom that would sweep more efficiently. Adair decided that the production employees could sweep up in their spare time, and deposit the sweepings in the five trash cans. The ultimate absurdity in Adair's testimony, and in the position of the Respond- ent, is that the existence of the supplemental agreement was not responsible in any way for any of the layoffs after the strike. The Respondent actually contends that all of the Eleven would have been retained even if the supplemental agreement had not been made! If this were true, it would follow that the Respondent insisted upon the execution of the supplemental agreement during the negotiations to settle the strike, and risked the prolongation of the strike for no reason whatsoever. This would make the whole affair a tremendous hoax. It is impossible to accept so irrational a contention. The supplemental agreement, being discriminatory in itself, was bound to produce discriminations with respect to tenure of employment. In fact, by conferring super job security on the Eleven, the Respondent disabled itself from considering either the ability or the seniority of any employee in any layoff in which the Eleven would be involved. The record establishes overwhelmingly that at least five of the Eleven, Ronald Adair (76), Verlin Daniels (77), James Davis (78), Robert W. Massey (79), and Morris Stewart (80), all of whom had been hired just prior to the strike, would have been laid off but for the provision of the supplemental agreement. The record establishes by a fair preponderance of the evidence that Chester Nelson,24 Robert Still (51), Donald Pearce (55), and Lorane Noble (64) would also have been laid off. Since it is conceded in the complaint that Glen Still and Raymond Pearce would have been rehired, notwithstanding the supplemental agreement, there is no basis for finding that their retention was discriminatory. There were, therefore, in all nine employees whose retention was discriminatory at the time of the layoffs in May and June 1962. In view thereof, it is difficult to understand how it can be contended that the layoffs of the Twenty-five were discriminatory. It is apparent that some of these employees would have been laid off in any event. Since the complaint is predicated on the theory that discrimination occurred only when the Respondent departed from its contractual seniority policy, the Twenty-five could not have been selected on the assumption that the mere existence of the supplementary agreement rendered all subsequent layoffs discriminatory per se. The difficulty in determining on what basis the Twenty-five were selected is further compounded by the fact that 19 other employees who are not included in the complaint, were also laid off following the strike, and that most of these layoffs occurred on the same dates as the layoffs of the Twenty-five. The failure to consider any of these 19 employees for inclusion in the complaint is rendered still more puzzling by the fact that most of them had greater plantwide seniority than the Twenty-five, and that a few of them had greater departmental seniority. Confusion is still worse confounded by virtue of the fact 24 While Nelson had previously worked for the Respondent for about 10 years, he had been out for about a year and a half at the time that he was rehired. The contract plainly provided , of course, that seniority was to be calculated on a continuous basis. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the theory of plantwide seniority on which the complaint seems to be based is not actually reflected even in the selection of the Twenty-five. Proceeding on the assumption that the Respondent's discrimination could have extended at no time to more than nine employees, can these victims of the dis- crimination be identified with a reasonable degree of certitude? It would seem that this question must be answered in the negative . While it is probable that at least some of the victims are to be found among the 12 employees whom the Respondent recalled in July and August after their layoffs, the actual selection of the ones who would have been kept is attended by too many difficulties . Among these difficulties are the somewhat flexible nature of the policy followed by the Respondent in laying off employees; the confusing basis on which the victims of discrimination appear to be selected in the complaint and the failure of the General Counsel to call as wit- nesses more than a few of the alleged victims of the discrimination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated the Act, I shall order that it cease and desist therefrom, and take certain affirmative action necessary to effectuate its policies. As I have found that the insistence of the Respondent upon the grant of super job security to the 11 employees covered by the supplemental agreement of May 18, 1962, was in violation of Section 8(a) (1), (3), and (5) of the Act, I shall order the Respondent to rescind its action , and cease to give effect to the terms of the sup- plemental agreement insofar as it confers super job security upon the 11 employees named therein. I have also found that, by implementing the aforesaid provision of the supplemental agreement , the Respondent has discriminated against nine of its employees, but I have also found that it is not possible on the basis of the testimony of record to identify the victims of the Respondent's discrimination with reasonable certitude. In these circumstances , I shall direct the Respondent to determine on the basis of the layoff policy which it would have normally followed if the supplemental agree- ment had not been made what 9 employees would have been laid off after the strike, and, if necessary to provide employment for them, to dismiss any of the 11 em- ployees, except Glen Still and Raymond Pearce, who are the beneficiaries of the supplemental agreement. The employees so selected may be among the 12 em- ployees who were subsequently recalled by the Respondent but the selection shall be limited to the employees whose layoffs are charged in the complaint as discrim- inatory. If employment should not be available for the employees so selected, even after the beneficiaries of the supplemental agreement have been dismissed , the em- ployees selected shall be placed upon a preferential hiring list, and they shall there- after, in accordance with such list, be offered reinstatement as positions become available, and before other persons are hired for such work . Reinstatement, as provided herein , shall be without prejudice to the employees ' seniority or other rights and privileges . Finally, if the parties cannot agree upon the selection of em- ployees directed herein, either party may request that the selection be made by the Board in a supplemental proceeding. I shall also order that the Respondent make whole the nine employees selected as aforesaid for any loss of pay they may have suffered as the result of the Re- spondent's super job security policy, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his layoff to the date of his reinstatement, or placement on the preferential hiring list in the manner hereinabove described, less his net earnings . Such loss of pay shall be computed on the basis of separate calendar quarters , in accordance with the policy enunciated in F. W. Woolworth Company, 90 NLRB 289. Interest shall also be computed on such loss of pay in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The Respondent, Laclede Metal Products Co., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. LACLEDE METAL PRODUCTS CO. 31 2. Local Lodge 2187, International Association of Machinists , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees of the Respondent , exclusive of office clerical employees, guards, professional employees, and supervisors within the meaning of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 8(b) of the Act. 4. Since on or about February 26, 1960, Local Lodge 2187, International Associa- tion of Machinists , AFL-CIO, has been the exclusive representative , within the meaning of Section 9(a) of the Act, of all employees within the aforesaid unit for the purposes of collective bargaining. 5. By insisting on the inclusion in the supplemental agreement of May 18, 1962, of the super job security provision guaranteeing that 11 employees listed therein would not be laid off for a period of 18 months following the execution of the agreement, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the aforesaid conduct, the Respondent has also interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. By discriminating in regard to the hire and tenure of nine of its employees, thereby discouraging membership in Local Lodge 2187, International Association of Machinists, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) 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 , Laclede Metal Products Co. of Lebanon, Missouri , and its officers, agents, successors , and assigns, shall: I Cease and desist from: (a) Maintaining or giving effect to its super job security policy, as embodied in the so-called supplemental agreement of May 18, 1962, under which the 11 employees named therein are guaranteed against layoffs for a period of 18 months. (b) Discouraging membership in Local Lodge 2187 , International Association of Machinists, AFL-CIO, or any other labor organization of its employees , by main- taining its super job security policy as aforesaid , or otherwise discriminating against them in regard to their hire or tenure of employment , or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act, as amended. (c) Refusing to bargain collectively with the aforementioned labor organization as exclusive bargaining representative of employees in the appropriate unit, by in- sisting that the Union agree to its discriminatory super job security policy (the appropriate bargaining unit consists of all the Respondent 's production and main- tenance employees, excluding office clerical employees , guards, professional em- ployees, and supervisors within the meaning of the Act). (d) In any like or related manner interfering with, restraining , or coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Rescind its super job security policy, as aforesaid , and, if necessary , dismiss from its employ such employees as have been the beneficiaries of this policy. (b) Select nine of its employees that were laid off as the result of the implementa- tion of its super job security policy, and, to such of these employees as have not already been recalled , offer reinstatement to their former or substantially equivalent positions, without prejudice to their other rights and privileges , or place them on a preferential hiring list , all in the manner set forth in the section of this report entitled "The Remedy," and make all nine of such employees whole for any loss of pay they may have suffered as the result of the respondent 's super job security policy, also in the manner set forth in the section of this report entitled "The Remedy." (c) Preserve and, upon request, make available to the National Labor Relations Board or its agents , for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary for the determination of the amount of backpay due under the terms of this Recommended Order. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its plant at Lebanon, Missouri , copies of the attached notice marked "Appendix." 25 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent 's president, be posted immediately upon receipt thereof , and be maintained 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 such notices are not altered , defaced, or covered by other material. (e) Notify the Regional Director for the Seventeenth Region, in writing , within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.25 'S In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order " shall be substituted for the words "The Recommended Order 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 "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 20 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days fiom the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT maintain or give effect to our super job-security policy by guaranteeing our employees against layoff for any particular period of time, nor will we adopt any other layoff policy which differentiates between our employees with respect to the order in which they are to be selected for layoff, nor will we discriminate with respect to any other aspect of their employment relationship, on the basis of whether or not they had worked during a strike. WE WILL NOT discourage membership in Local Lodge 2187, International Association of Machinists , AFL-CIO, or in any other labor organization of our employees, by laying them off solely as the result of the operation of a job- security policy, or otherwise, by discriminating against them in regard to their hire or tenure of employment or any term or condition of employment , except as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain , or coerce 'employees in the exercise of rights guaranteed in Section 7 of the Act WE WILL rescind our super job-security policy, and restore all employees to the job rights they enjoyed prior to the adoption of this policy WE WILL, insofar as we have not already done so, offer the nine employees who have been laid off as a result of our super job-security policy, immediate and full reinstatement to their former or substantially equivalent positions, with- out prejudices to their seniority or other rights and privileges , or place them on a preferential hiring list. WE WILL make whole all discriminatorily laid-off employees for any loss of pay they may have suffered as a result of our super job security policy. LACLEDE METAL PRODUCTS COMPANY, Employer. Dated------------------- By------------------------------------------- (GEOaoe T. Cute, President) This notice must remain posted for 60 consecutive 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 Seventeenth Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri , Telephone No. Baltimore 1-7000, Extension 731, if they have any question concerning this notice or compliance with its provisions.