Intalco Aluminum Corp.

INTALCO ALUMINUM CORPORATION ' 413 Intalco Aluminum Corporation and George Davies Case 19-CA-4373 May 14, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS the National Labor Relations Board, herein the Board, on July 14 1969, issued a complaint alleging that Intalco Aluminum Corporation, herein Respondent, violated Section 8(a)(1) of the National Labor Relations Act herein the Act Upon the entire record and my observation of the witnesses I make the following FINDINGS OF FACT On December 3 1969, Trial Examiner E Don Wilson issued his Decision in the above entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiners Decision Thereafter, the Respondent filed exceptions to the Decision and a supporting brief and the General Counsel filed an answering brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam iner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions and recommendations of the Trial Examiner ORDER Pursuant to Section 10(c) of the National Labor Rela tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent Intalco Aluminum Corporation, Bellingham Washington, its officers, agents successors, and assigns shall take the action set forth in the Trial Examiner s Recommended Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E DON WILSON, Trial Examiner Pursuant to due notice, a hearing was held before me, at Bellingham Washington on September 9 through 11, 1969 The parties, except the Machinists ' fully participated Briefs have been received from the General Counsel Respond- ent, and the Charging Party and have been duly consid- ered Upon a charge filed by George Davies a lawyer herein Davies, on May 1, 1969, and amended thereafter on June 4 and June 9, 1969, the General Counsel of ' During the hearing I denied Machinists request to intervene Machin fists representative was present at all times during this hearing He did not renew his motion to intervene either at the end of General Counsels or Respondents case I plainly stated that the Machinists might renew their motion to intervene at the close of Respondents case They did not do so I THE BUSINESS OF RESPONDENTS Respondent is a Delaware corporation with its princi pal office and place of business located in Ferndale Washington, where it is engaged in the manufacture of primary aluminum, and during the past year, in its business has caused to be transported and delivered to its Ferndale plant goods tnd materials valued in excess of S50,000 which were shipped to it in interstate commerce directly from States of the United States other than the State of Washington Respondent during the past year hits distributed from its Ferndale plant products valued in excess of $50 000 directly to States other than the State of Washington At all times material herein, Respondent has been an employer engaged in commerce within the meaning of the Act 11 THE LABOR ORGANIZATIONS The United Steelworkers of America, AFL-CIO, and Aluminum Workers International Union AFL-CIO, and Bellingham Metal Trades Council, Allied Industries Divi lion, and International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter called the Machinists, are labor organizations within the meaning of the Act ' III THE UNFAIR LABOR PRAC1 iCFS A The Issues (1) Was a strike engaged in by a majority of Respond ent s employees, beginning on or about April 25, 1969 and ending on or about May 6, concerted activity protect- ed by the Act9 (2) Was the discharge of about 28 of the strikers on or about April 27, unlawful under the Act" (3) Was Respondent s suspension of Dwight W Whiteley on or about May 6 until May 15, unlawful under the Act) (4) Was Respondent's refusal to reinstate since on or about May 6, about 16 strikers after their unconditional offer to return to work unlawful under the Act94 2 Machinists were property denied a motion to intervene since they were not named in the complaint and did not renew their motion after Respondent introduced its defense dthough Machinists were afforded an opportunity to renew said motion Hereinafter all dates refer to 1969 unless otherwise st ited Vincent Occhiogrosso wiis remst itcd sometime in August 182 NLRB No 57 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,B. Background In a decision reported at 169 NLRB 1034, the Board found that the Respondent had violated Section 8(a)(1) and (2) of the Act by entering into an illegal contract with the Machinists. The Board held that at the time Respondent recognized the Machinists, it was a minority Union. Respondent, among other things, was ordered to cease and desist from recognizing the Machinists and giving effect to their contract or any extension or renewal thereof. Respondent was ordered to withdraw and withhold all recognition from the Machinists unless and until certified, and to take further action.' On Sep- tember 19, after the trial herein, the Ninth Circuit enforced the Board's Order excepting "for the provision for reimbursement of dues."" At all times since the Board Order, Respondent has continued to recognize and contract and renew contracts with the Machinists Obviously, in view of the Board's Order and the court's decision, I find that the contract and any renewals have been illegal under Section 8(a)(2) and (I) of the Act.' C The Facts Based on the record as a whole, particularly the credited testimony of Frank Sova, I find that on April 25, substantially all of Respondent's employees, 800-900, went out on strike." The employees, or some of them, engaged in picketing of Respondent's premises Respond- ent insists this strike was illegal because it was in violation of a "no-strike" clause in its current contract with the Machinists. But as the Board and the court found, this was an illegal contract and its provisions had and have no force or effect. On or about April 27, Respondent discharged 28 employees named in para- graph 6 of the complaint and on or about May 6, suspended Whiteley, because they had engaged in a strike in violation of the "no-strike" clause in the illegal contract The parties entered into a factual stipulation" of con- siderable length and detail, to the effect that the Machin' ists engineered, inspired, and induced this strike and were responsible for its prolongation. I now reverse my'ruling made at the hearing and find such is irrelevant ' At the time of the trial herein, that matter was pending before the Court of Appeals for the Ninth Circuit The Machinists have never been certified by the Board Having duly studied the Regional Director's Report on Objections in Case l9-RC-4812 and the Board's Supplemental Decision and Order therein, I find they in no way affect the Board' s original order as described above or the court's decision In this connection, I note that the Board's original Decision and Direction of Election (174 NLRB No 122) involved an application by the Board of the so-called Carlson case Decision 157 NLRB 851 Note that in directing this election the Board referred to the "illegal contract" Respondent had with Machin- ists " The testimony of D. F Spellman, Respondent's director of industrial relations , was too vague, and obtuse, to permit a finding as to a more exact number " General Counsel and the Charging Party arguing that it was irrelevant and immaterial, and being overruled by me and immaterial."' By the day after the strike started there was an 11-man Employee Strike Committee' I who, according to the credited testimony of Sova, were acting not for the Machinists but for all of Respondent's employees.' It attempted to contact Respondent's repre- sentatives the day after the strike began. They met with Respondent's representative Pfannt3 about 4 p in., on Saturday, and told him, they would like to sit down and tell him why they were on strike and show him "our list of grievances and what our problems were and why we were actually not coming to work. We asked him if he would and he said he really didn't give a damn about what we had on paper or anything. He said there was a grievance procedure [under the illegal contract] and that was the way they would resolve grievances. . , So we asked him if we did come back to work, would he sit down and look at our grievances and he said that we had a grievance proce- dure. . . . He pulled out a contract book and showed us the reason that he wasn't willing to talk to us was because of the stipulation and [no] strike clause in there "14 Thus, whether the Machinists engineered the strike or not, it is clear that Respondent refused to meet with an Employees' Strike Committee elected by the employees on strike, to discuss the employees' griev- ances and the settlement of the strike, because of its illegal contract with the Machinists. This Employees' Strike Committee was elected by 600-700 employees on the day after the strike began. They were not repre- senting the Machinists Union but Respondent's striking employees "for the benefit of resolving the strike." Sova further credibly testified that the employees "walked out because they finally had enough backbone to stand up to some of the things that were bothering them over a 4-year period." While Respondent's Exhibit I demonstrates that at a prior election'' the Machinists received only 278 votes, there were 800-900 employees who supported the strike. Whatever role the Machinists may have played in the strike, the credited testimony establishes that the Employees' Strike Committee sought and received some ineffectual aid from the Bellingham Metal Trades Coun- cil,"' which sought to arrange a meeting between Respondent and the Employees' Strike Committee. I now find it irrelevant and immaterial that the Machinists, parties to an illegal contract with Respondent, may have played a part in instigating or furthering the strike which I have found was participated in by most of Respondent's employees." Respondent admits that it discharged 28 strikers on or about April 27, because they, engaged in a strike "' I shall discuss this further in considering Respondent's so-called Mid-West Piping defense One of whom was Frank Sova They were elected by the employees Respondent's "Liberazations manager 14 Obviously the illegal contract '' Which was held on March 26 and 27, and set aside by the Board ", Which had been on the ballot in the election the Board set aside 17 An illegal contract had been imposed upon them by Respondent INTALCO ALUMINUM CORPORATION ' 415 in violation of the "no-strike" clause , on April 27 and that after their unconditional offer to return to work on May 6, it suspended Whitely for engaging in the strike and refused to reinstate 16 strikers because they engaged in the strike in violation of the "no strike clause ." Some of them allegedly engaged in additional strike activities which were unlawful and unprotected. Respondent denies in particular that employees S'chreck or Zollatz made a good-faith offer to'return to work.'' D. Concluding Findings 'FI find that by virtue of the Board 's Decision and the Ninth Circuit' s decision enforcing it in most part, and particularly as to the parts material herein, the "no strike clause " and "grievance procedure clauses" of Respondent 's contract with the Machinists were null and void and part and parcel of an illegal contract-, and did not render the concerted activities , the strike, of the Respondent 's employees unprotected , and did not justify Respondent 's discharge or suspension of, or refusal to reinstate any striker. I further find that the fact that the Regional Director in a Report on Objections stated that Respondent and Machinists were parties to a "current collective bargain- ing agreement" did not mean that he was finding the contract to be valid .' He simply found that an expressed objection was not valid .'s The Aluminum Workers and the Metal Trades Council had filed a written request with the Board to proceed with an election pursuant to Carlson Furniture Industries , Inc., 157 NLRB 851, with full knowledge that Respondent and Machinists were parties to a contract which the Board had found to be illegal . I have already noted that the Board in its Decision and' Direction of Election had noted that the current contract with the Machinists was "illegal." The concerted activities of Respondent 's employees in striking because of unresolved grievances was protect- ed activity under the Act.20 "The reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not." The court further stated that an employer is not "at liberty to punish la man by discharging him 1N The 28 who were discharged were Balogh, Crawford , Davis, Dickin- son, Dillard , Ferrell , Gaillac , Garza, Hale , Haugen , Howard , Johnson, Kaiser, Kombol , McCall , Miller , Morton, Occhiogrosso , Perrin, Ross, Schreck, Sova , Summers , Tamcke , Thompson , Umbaugh, r Zinn, and Zollatz The 16 who were denied reinstatement were Davis, Dillard,, Hale, Haugen , Howard , Johnson, Kaiser, Kombol , McCall , Miller, Occhiogrosso (who was recalled in August), Ross, Schreck , Sova, Sum- mers , and Zollatz Respondent contends that in addition to engaging in an illegal strike, some of . the discharged' employees committed acts "which would justify a denial of reinstatement under any circum- stances " These employees allegedly included Johnson, Zollatz, Schreck, Gaillac , Garza (there is no allegation by General Counsel that he was illegally refused reinstatement), Howard , Ross, Zinn, Morton ,'Occhiog- rosso, and Tamcke (who allegedly was reinstated and made whole at some undisclosed time because the refusal to reinstate or belief that he had engaged in violence was in error )' General Counsel moreover does not allege that Tamcke was illegally denied reinstatement This is also true of Gaillac 11 He found other conduct of Respondent to be valid grounds for overturning the election 20 N L R B v Washington Aluminum Company , 370 U S 9 for engaging in concerted activities which [Section] 7 of the Act protects ." Of course , unlawful activities, violent activities , or activities in breach of a lawful contract are not protected. I find the illegal contract did not require the employees to resort to any grievance procedures established by the illegal contract . They were null and void, and Respondent has been ordered to cease giving effect not to just parts of the illegal contract but to the entire illegal contract.2t ' The entire record makes clear that the strike "was in furtherance of the employees ' efforts to make manage- ment more responsive to their demands for various improvements in existing employment conditions ." Elec- tromec Design and Development Company, Inc., 168 NLRB 763.22 This strike was protected activity under the Act. I reject as without merit , Respondent ' s contention that the strike was unprotected on the grounds that it was in furtherance of the Machinists attempt to obtain recognition during the pendency of a question concerning representation , which Respondent contends was unlaw- ful under the Mid-West Piping & Supply Co., Inc.23 doctrine . Respondent , in its brief , says, "The strike was organizational from its inception ." Respondent fur- ther states that in that case, "the Board held that the employerlmust remain neutral during an organizational campaign and must not deal with one of the competing unions. "24 Respondent contends that the employees were striking to force the Respondent to recognize and deal with the Machinists and thus engaged in unprotected activity in light of the Mid- West Piping doctrine. Respondent cites Ohio Ferro-Alloys Corp . v. N.L.R.B., 213 F.2d 646 , reversing 104 NLRB 542. I am unaware of any Board decision in which the Board has reversed its decision in 104 NLRB 542, and in that case , unlike the one at hand , the employer remained strictly neutral and insisted on an election . ,In the election directed by the Board in this case 2' Respondent and the Machin- ists both urged the Board not to direct an election while an 8(a)(2) case involving the same unit of employ- ees was pending . They contended an immediate election was "untenable." I consider Respondent's position in urging that I find the strike unprotected because it was for the purpose of forcing Respondent to recognize and deal with the Machinists while a question concerning representation was pending to be entirely without foundation. Since March 17, 1966, to date , Respondent , has unlawfully recognized and dealt with the Machinists . In its contracts, Respondent has unlawfully required all its employees to belong to the Machinists . It insists today, that it has at all times since March 1966 , lawfully recognized " Finding the contract illegal, I refused to receive it in evidence It is in Respondent ' s Rejected Exhibit File " As I have previously found , the fact that the illegally assisted and recognized Union may have played some part in a walkout of some of the employees is irrelevant and immaterial 23 63 NLRB 1060 24 Here, three unions were competing for representation rights 2i 174 NLRB No 122 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Machinists and entered into union-security agree- ments with them. The Machinists had recognition from and a contract with Respondent Respondent has since 1966 unlawfully recognized the Machinists not out of the employees' choice, but out of. Respondent's choice. It was Respondent which illegally imposed the Machinists upon the employees. Reference has already been made to the,, comparatively low number of `votes received by the Machinists in the comparatively recent election which was set aside by the Board. Since Respondent has continued in this illegal conduct for so long, and since there is no evidence that a majority of the employ- ees ever wanted the Machinists as the bargaining repre- sentative, I cannot find that the 800-900 employees struck to force Respondent to deal with the Machinists, something it had illegally been doing for, years. I find from the entire record that the employees acted "together to better their working conditions.", 2" Here, there was no legal contract and there was no legally established contractual grievance procedure. Nonetheless, the Machinists had complete recognition by and from Respondent, which Respondent insists was lawful, and it is absurd to suggest that the employees were striking to force Respondent to recognize and deal with the Machinists during the pendency of a question concerning representation. These striking employees did not 'lose their protected Section 7 rights, merely because they did not present a specific demand, to Respondent to remedy objectionable working conditions. The Employ- ees' Striking Committee asked Respondent unsuccessful- ly to discuss grievances of the employees on the day after the strike began. Respondent refused, insisting that they resort to the grievance procedures of the illegal contract "The language of Section 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. To compel the Board to interpret and apply that language in the niggardly fashion suggested by the Respondent here would only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working conditions." N L R.B. v. Washington Aluminum Co., supra. (These employees had not had legal representation since or before 1966.) I find that there is insufficient probative and substantial evidence that Respondent was justified in discharging the 28 employees referred to supra, or in refusing to reinstate, the 16 referred to supra, on the grounds that the strike was illegal and their activities were not protect- ed by, Section 7 of the Act. I find that the discharges and suspension of Whiteley, and refusals to reinstate for these reasons were in violation of Section 8(a)(1) of the Act.' Presumably, according to the complaint, 12 of the 28 who were. discharged on or about April 27 were reinstated or General Counsel makes no claim that they were entitled to reinstatement.27 There are 11 employees who Respondent contends engaged in sti N L R B v Washington Aluminum Co , supra z^ Compare par 6 and 8(b) of the complaint (This would include Garza ) such strike misconduct, during the course of the strike, as to justify Respondent's discharge or refusal to rein- state them.211 As to those who were discharged on or about April 27, and reinstated pursuant to their request on or about May 6, or who are not alleged in the complaint to have been unlawfully denied reinstatement, they are not entitled to backpay for the period they were on strike and no order of reinstatement is necessary As to the 16211 who were and have been denied reinstate- ment pursuant to their unconditional requests'31 only because, according to Respondent, they engaged in or were leaders of an allegedly illegal strike, which in fact was protected concerted activity under the Act, they are entitled to reinstatement and backpay with interest as will be discussed in the Remedy section herein.31 While Respondent introduced evidence as to strike misconduct, other than merely engaging in the strike, as leaders or otherwise, with respect to 11 of the 28 discharged employees, only 5 of these 11 were denied ,reinstatement according to the complaint. They are How- ard, Johnson, Ross, Schreck, and Zollatz. Most of the alleged misconduct was testified to by D. F. Spellman, Respondent's director of industrial relations. Most of his testimony in this regard was clearly hearsay, but I overruled objections- to the testimony believing that he was merely being offered as a witness to testify as to the Respondent's official position as to the grounds of discharge or refusal to reinstate and that Respondent, if it had such witnesses, would call others who would give direct and nonhearsay testimony as to actual miscon- duct, based on their own observations, and not on mere hearsay. This was not done by Respondent in most instances. To the extent that Spellman's testimony as to alleged misconduct is mere hearsay and not within a recognized exception to the hearsay rule, and is not supported by competent andprobative evidence, I disre- gard it. I see no purpose in setting forth herein all of the unsubstantiated hearsay testimony of Spellman. Such would merely unduly elongate this Decision. I find, crediting the testimony of Gerald McRorie, and having examined a photograph of Zollatz'32 wherein he appears to be throwing something, that during the course of the strike, when Zollatz was 40-50 feet from McRorie, Zollatz threw a rock in McRories's direction, the latter being Respondent's manager of communica- tions and committee relations. I consider this gross misconduct by Zollatz, and such as justified his discharge and refusal to reinstate by Respondent.33 I find no viola- tion of Section 8(a)(1) in Respondent's discharge of or refusal to reinstate Zollatz for throwing a rock at Z" General Counsel states in his brief that 6 of the 11, in fact, returned to work See par 8(b) of the complaint As noted, Occhiogrosso was reinstated in August He is entitled to backpay from May 6 to the date in August when he was reinstated, with interest, as hereinafter described in the Remedy section 11 Hereinafter, I will discuss the situation with respect to those of the 16 who engaged in gross misconduct in their strike activities Resp Exh 5 In any event, I credit Spellman's undenied testimony that Zollatz stated he did not want to return to work INTALCO ALUMINUM CORPORATION 417 one of Respondent 's managers during the course of the strike 34 As an exception to the hearsay rule, Spellman truthful- ly testified without contradiction that Gaillac admitted to him that on April 25 he "attempted to and did successfully block the entry of a supply truck attempting to enter the plant premises with supplies by laying in the road in front of the truck and preventing its movement in that way " This occurred at the main picket line I find this was gross and agravated miscon- duct and was just cause for discharge General Counsel has not alleged that he was unlawfully denied reinstate- ment 31 Hence , I make no finding in this regard 31, Respondent, in its brief, alleges that Rodney37 Schreck was drinking heavily [5 beers]" when he admittedly trespassed on company property, by car and the last time on foot He drank the beer between 10 p in and l a m I credit his testimony that he had no beer after I a in I cannot find that by drinking five beers over a 3-hour period, he was " drinking heavily " Aside from mere trespass , while on strike , I find he engaged in no misconduct On the last occasion he trespassed, he was on foot and walking not toward the plant itself but towards Respondent's recreational area, about 5 or 6 a in , for the purpose of going crab fishing with a stick which he did not then have in his hands Other than the bare trespass , he was doing no harm I think it is immaterial whether he actually intended to go crab fishing 38 In any event there is no credible evidence that he was on Respondent's property at that time, for an evil purpose He had walked a short distance when he was tackled by Respondent's representative Mike Schaffer and three or four more people 39 jumped on him and in due course , "spread-eagled " him, holding him on the ground by his arms and legs He fought back and apparently kicked two of the men One of the men held him around the neck and was choking him He was picked up and loaded into the back end of a "pickup " There were apparently four men holding him by each arm and each leg He was driven roughly and in a dangerous manner , to the guard's shack, where he was placed on the floor until Respondent 's representa- tive Pfann came and they talked 40 An employee striker named Touchan was with Schreck when he trespassed on Respondent's property to the knowledge of Respond- ent Touchan was neither assaulted , nor discharged, nor denied reinstatement 41 At the time Schreck was so savagely assaulted, there is no evidence that any of Respondent 's representatives asked him why he was on company property I credit his testimony that he had his last of five beers about I a in , and do not 34 Note I find he did not desire reinstatement See par 8(b) of the complaint So far as the record is concerned he may well have been reinstated Not Roger as he is named in the complaint He testified the tide was low at this time and it was feasible to catch a crab by putting a stick near the crab and when the crab caught hold he could pull it up and out of the water and thus catch it 19 Respondent s representatives 4" Apparently peacefully 41 According to the record credit testimony that he was drunk about 5 or 6 a in Pfann told him he had been trespassing and he replied he felt he was not because he was in the recreational area 42 I find from the entire record that he was unlawful- ly discharged for his protected strike activities, and that his trespasses , which caused Respondent no harm, were not so aggravated as to justify Respondent 's refusal to reinstate him Pfann testified that about May 10 or 12, Schreck and Machinists Representative Johnson asked him to change the date of Schreck 's termination from April 27 to May 8 , his second anniversary date, so he could receive additional vacation benefits Subse- quently, according to Pfann , he agreed to do so Pfann testified he told Schreck and Johnson that Respondent "had substantiated his discharge ," obviously referring to the trespass incidents I credit Schreck's testimony that he reported for work on May 8 and was told he was "fired " and that when he and Johnson later met with Pfann he tried to get his job back and Pfann said he did not see "how they could reinstate" him I further credit Schreck 's testimony that he then saw Respondent ' s president , Ferrie , and unsuccessfully asked him for his job back I find the discharge of and refusal to reinstate Schreck violated Section 8(a)(1) of the Act Roy Johnson admitted trespassing on company proper- ty with his brother in a car one night during the strike, and talking to a nonstriking employee 43 I find no compe- tent or substantial evidence that he in any manner threat- ened the employee I do not consider his mere trespass and short noncoercive conversation with a working employee conduct of such an aggravated nature as to deprive him of his right to reinstatement The discharge of and refusal to reinstate Johnson violated Section 8(a)(1) of the Act The only testimony as to alleged misconduct by Donald Howard is unsubstantiated hearsay of Spellman I find this incompetent evidence Respondent violated Section 8(a)(1) of the Act by discharging and refusing to reinstate Howard The same is true with respect to Tim Ross Only unsubstantiated hearsay of Spellman evidenced misconduct by Ross Such evidence , as I have found, is incompetent and unsubstantial Thus, of the 16 strikers who were denied reinstatement by Respondent , I find competent and substantial evidence as to gross misconduct only by Zollatz, who in any event said to Respondent that he didn 't want to return to work and said he was ashamed that he'd "had quite a few beers to drink" and admitted that he had been "throwing rocks 1144 The other 1445 named in paragraph 8(b) of the complaint are entitled to an order providing for reinstatement with backpay as will be discussed in the Remedy section hereinafter 42 Which the employees themselves had been constructing without pay 43 Asking him why he was not out on strike etc 44 See the undenied and credited testimony of Spellman As noted Occhiogrosso has been reinstated since sometime in August 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occuring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof V. THE REMEDY Having found Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Having found that on or about April 27, Respondent unlawfully discharged John Balogh, Bernie Crawford, Paul Davis, Mike Dickinson, Roy Dillard, Charles Ferrel, Ernesto Garza, Larry Hale, Richard Haugen, Donald D. Howard, Roy Johnson, Richard Kaiser, Jess Kombol, James McCall, William Miller, R. Morton, Vincent Occh- iogrosso, Alex Perrin, Tim Ross, Rodney Schreck, Frank Sova, James Summers, Robert Tamcke, Wallace Thomp- son, Samuel Umbaugh, and Ray Zinn, I shall order Respondent to remove from their records any evidence of discharge for cause. Excepting for those above named who were unlawfully denied reinstatement, I shall not order backpay for the period they were on strike.41 Those were free to strike or not strike. Respondent is not required to pay them for the period of time they were freely on strike and refusing to work. To remedy the discriminatory refusal to reinstate since on or about May 6, Davis, Dillard, Hale, Haugen, How- ard, Johnson, Kaiser, Kombol, McCall, Miller, Occhiog- rosso,47 Ross, Schreck, Sova, and Summers, Respondent will be required to offer them reinstatement and make each of them and Whiteley whole for any loss of pay each may have suffered by reason of the discrimination against them in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest on backpay com- puted in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716. They shall be reinstated to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges.4A The above found discharges and the above found unlawful refusals to reinstate and the discriminatory suspension of Whiteley strike at the heart of the rights guaranteed employees by the Act, expecially in connec- tion with Respondent's unremedied violations of Section 8(a)(2) and (1) of the Act, as previously found by the Board and the Ninth Circuit. I shall therefore recommend a broad order. As requested by General Counsel Note he was reinstated in August and no offer of reinstatement is required as to him SN Occhinogrosso shall receive backpay until the date of his reinstate- ment Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Unions named herein are labor organizations within the meaning of the Act. 3. By the discriminatory discharges, as found above, and discriminatory suspension, Respondent has been engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily failing and refusing to reinstate striking employees who were engaging in protected con- certed activities, pursuant to, their unconditional offers to return to work, as found above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, including the discharge of and suspension of, and refusal to reinstate employees for engaging in protected concerted activities, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. 7. It has not been established by a preponderance of the substantial evidence that Respondent violated Section 8(a)(1) of the Act by discharging or refusing to reinstate Zollatz, as found above. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or suspending employees because they engage in concerted activities protected by Section 8(a)(1) of the Act. (b) Refusing to reinstate pursuant to their uncondition- al requests, strikers who have been engaging in protected concerted activities, under the Act. (c) In any other manner interfering with, restraining, or coercing any employee in the exercise of his right to engage in concerted activities protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Remove from its records any evidence,of discharge for unlawful cause, and assure that the following have not been denied seniority or other rights and privileges and that they have been or will be reinstated to their former or substantially equivalent positions: John Bal- ogh, Bernie Crawford, Paul Davis, Mike Dickinson, Roy Dillard, Charles' Ferrell, Ernesto,G,arzo, Larry Hale, INTALCO ALUMINUM CORPORATION Richard Haugen , Donald Howard , Roy Johnson , Richard Kaiser , Jess (or Jeff) Kombol , James McCall , William Miller , R. Morton , Vincent Occhiogrosso , Alex Perrin, Tim Ross, Rodney Schreck , Frank Sova, James Sum- mers, Robert Tamcke , Wallace Thompson , Samuel Umbaugh , and Ray Zinn. (b) Offer to reinstate to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges , and make them whole in the manner set forth in the "Remedy" portion of this Decision , for any loss of earnings , by reason of Respondent 's discrimination against them , the following employees : Paul Davis , Roy Dillard , Larry Hale , Richard Haugen , Donald Howard , Roy Johnson , Richard Kaiser, Jess or (Jeff) Kombol , James McCall, William Miller, Vincent Occhiogrosso '49 Tim Ross , Rodney Schreck, Frank Sova and James Summers. (c) Preserve and upon request , make available to the Board or its agents , for examination and copying, all payroll records and all other records necessary to analyze the amount of backpay due hereunder. (d) Post at its Ferndale , Washington , place of business copies of the attached notice marked "Appendix."" Copies of such notice on forms furnished by the Regional Director for Region 19, after being duly signed by Respondent, shall be posted immediately upon receipt thereof , and be maintained for 60 consecutive days thereafter , in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced , or covered by any other mate- rial. (e) Notify those employees who were discriminatorily denied reinstatement , if presently serving in the Armed Forces of the United States of America of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (f) Notify the Regional Director for Region 19, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.' 48 He has apparently already been reinstated and he need only be made whole as provided in the "Remedy " portion hereof In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall , as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order , and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board '' In the event that' this Recommended Order is adopted by the Board , this provisiofi ' shall be modified to read "Notify the,Regional Director for Region , 19, in writing , within 10 days from the date of this Order , what steps rt 'has taken to comply herewith 419 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE DO NOT have a valid contract 'with any Union , and any or all of our employees are free to strike or not to strike , or engage in other concert- ed activities , including those for the purpose of mutual aid and protection, or to refrain from them, as guaranteed under Section 7 of the Act. WE WILL NOT discharge or suspend or otherwise discriminate against any employee because he engages in any activity protected by Section 7 of the Act, including peaceful striking or picketing in the absence of a lawful contract which contains a lawful "no-strike " clause. WE WILL NOT refuse to reinstate , pursuant to unconditional requests , strikers who have been engaging in protected concerted activities under Section 7 of the Act. WE WILL NOT , in any other manner , interfere with , restrain , or coerce any employee in the exer- cise of his right under the Act , to engage in activities protected by Section 7 of the Act. WE WILL remove from our records , if such there be, any evidence of discharge for unlawful cause or any evidence of such , and assure the following, including backpay , where in order , that they have not been denied seniority or other rights and privi- leges under the Act: John Balogh Bernie Crawford Paul Davis Mike Dickinson Roy Dillard Charles Ferrell Ernesto Garza Larry Hale Richard Haugen Donald Howard Roy Johnson Richard Kaiser Jess (or Jeff) Kombol James McCall William Miller R. Morton Vincent Occhiogrosso Alex Perrin Tim Ross Rodney Schreck Frank Sova James Summers Robert Tamcke Wallace Thompson Samuel Umbaugh Ray Zinn 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to reinstate, immediately, to their former or substantially equivalent positions without prejudice to their seniority or other rights and privi leges and pay them for wages lost because we unlawfully refused to reinstate them, about May 6, 1969, the following employees Paul Davis Roy Dillard Larry Hale Richard Haugen Donald Howard Roy Johnson Richard Kaiser Jess (or Jeff) Kombol James McCall William Miller Vincent Occhiogrosso52 Tim Ross Rodney Schreck Frank Sova James Summers WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in their right to engage in concerted activities protected by Section 7 of the Act This includes the right to form , join, or assist labor organizations and to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from 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 INTALCO ALUMINUM CORPORATION (Employer) Dated By (Representative) (Title) Note We will notify any of the above-named employ ees who have been ordered to have offers of reinstate- ment made to them, if presently serving in the Armed Forces of the United States, of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended after discharge from the Armed Forces This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office Republic Building, 10th Floor, 1511 Third Ave nue, Seattle, Washington, 98101, Telephone 583-4532 4 We reinstated him in August 1969