American Machinery Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1969

174 N.L.R.B. 130 (N.L.R.B. 1969)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Machinery Corporation and United
Steelworkers of America, AFL-CIO. Case
12-CA-4211
January 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA.
On November 4, 1968, Trial Examiner Louis
Libbin issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting 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 connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
reinstatement In its duly filed answer, Respondent denies
all unfair labor practice allegations.
Pursuant to due notice, a hearing was held before me at
Orlando, Florida, on September 17 and 18, 1968. All
parties appeared at the hearing, were represented by
counsel, and were given full opportunity to participate
therein. On October 15, 1968, all parties filed briefs which
I have fully considered.'
Respondent's motion to dismiss the complaint, made
before the close of the hearing and upon which I reserved
ruling, is hereby denied. For the reasons hereinafter
indicated, I find that Respondent violated Section 8(a)(1)
and (3) of the Act.
Upon the entire record2 in the case, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Florida corporation, is engaged in the
manufacture, sale, and distribution of citrus, vegetable and
canning machinery. During the 12-month period preceding
the issuance of the instant complaint, Respondent sold
and shipped goods and materials, valued in excess of
$50,000, from the State of Florida to points located
outside the State of Florida.
Upon the above admitted facts, I find, as Respondent
further admits in its answer, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record
shows, and I find, that United Steelworkers of America,
AFL-CIO, the Charging Party herein called the Union, is
a labor organization within the meaning of Section 2(5) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, American Machinery
Corporation, Orlando, Florida, 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
LOUIS LIBBIN, Trial Examiner: Upon charges filed on
April 25, 1968, by United Steelworkers of America,
AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional
Director for Region 12 (Tampa, Florida), issued a
complaint, dated August 12, 1968, against American
Machinery Corporation, herein called the Respondent.
With respect to the unfair labor practices, the complaint,
as subsequently amended, alleges, in substance, that
Respondent violated Section 8(a)(1) and (3) of the Act by
failing and refusing to reinstate former striking employees
subsequent to their unconditional request for
III. THE UNFAIR LABOR PRACTICES
The sole issue in this proceeding is whether Respondent
violated Section 8(a)(1) and (3) of the Act by refusing and
failing to reinstate economic strikers after the termination
of the strike.
A. The Facts
As counsel for Respondent concedes in his brief, there
is no significant conflict with respect to the relevant and
material facts.
1. The strike
Respondent has recognized the Union as the exclusive
representative of its production and maintenance
employees at the Orlando, Florida, plant from about April
7, 1952, to about February 6, 1968. They have been
parties to collective-bargaining agreements covering this
unit since 1952. The last such agreement expired by its
terms on October 15, 1967.
As the Board's rules make no provisions for reply briefs, Respondent's
reply brief, filed on October 21, 1968, has been rejected
'Certain inadvertent errors in the transcript have been noted and
corrected
174 NLRB No. 25
AMERICAN MACHINERY CORPORATION 131
When negotiations for a new contract became
deadlocked on October 17, 1967, the entire unit of
approximately 50 employees went on strike in support of
the Union's demands and picketed Respondent's plant. By
registered letter dated November 14, 1967, and signed by
President Sharts, Respondent notified each of the strikers
that You have been permanently replaced as an
employee of American Machinery Corporation."
In the latter part of January 1968, Union
Representative Davidson requested President Sharts to
meet for contract negotiations . By letter dated February 6,
1968, Sharts refused to bargain because of a "good faith
doubt" of the Union's majority status and announced that
"unless and until the Union establishes its position as the
majority representative of the employees, the Company
will no longer recognize the Union as representing the
employees." Thereafter, the Union filed a
refusal[-to-bargain charge which was dismissed by the
Regional Director, and his action was sustained on appeal.
2. Request for reinstatement; Respondent's refusals
and failure to reinstate
The strike and picketing ended on March 13, 1968. On
that date, Union Representative Davidson signed and sent
the following registered letter, addressed to President
Sharts and received by him the following day:
Please be advised that the strike by your employees
is terminated. At this time, your employees hereby
unconditionally offer to return to work immediately
and request reinstatement. This offer is made on behalf
of all employees who went on strike and have not
returned to work to date.
In the event there are no openings as of the date you
receive this offer, you are further advised that said
employees will be available for employment to fill
openings when they develop or vacancies created by the
departure of employees now working. [Emphasis
supplied.]
By reply letter from Sharts, dated March 21, 1968,
Davidson was advised that -
At the time of receipt of your letter and at this time,
our work force is fully manned and we have no job
openings. When job openings occur, the strikers, like
any other applicants, will be considered on a
nondiscriminatory basis if they make applications for
employment and keep these applications current. We do
not give any applicants any preferential hiring status
and we will hire to meet our needs from any available
source. [Emphasis supplied.]
Thereafter, 17 strikers made individual applications for
their jobs. Thus, Samuel Carlis went to the plant about 3
or 4 days after the picketing ended and was given an
employment application by Sharts' secretary. He filled it
out and returned it to the plant on March 26. Charles
Moore telephoned Plart Manager Wittick concerning
employment and was told to file an application. He also
telephoned Sharts about a week after the strike ended and
was told they had enough employees and were not hiring.
He went to the plant, got an employment application from
Sharts` secretary, filled it out and returned it on March
22. Sammy Thompson talked about his job to Sharts at
the plant on March 20. Sharts stated he would hire the
strikers back as jobs became available but that they would
return as new employees, with no seniority and "nothing
whatsoever," and that he would have to fill out an
application. Thompson filed his application on March 22.
Philip Rooks telephoned Foreman Ruff on March 13 and
14. In the first conversation, Ruff stated he did not know
if any jobs were available; in the second conversation, he
stated that no jobs were available for Rooks. About a
week later, Rooks applied in person to Sharts who stated
that no jobs were available and that if he came back it
would be as a "new man" with no seniority. Sharts gave
Rooks an employment application blank to fill out and
promised, "I'll let you know when something opened up."
Rooks submitted his application on March 24. Gene
Norris talked to Sharts about 3 or 4 days after the strike
and asked about his job. Sharts stated everything was
filled up, gave Norris an application, told him to keep it
"current," and promised to let him "know if anything
opened." Norris submitted his application on March 26.
About 2 months before the instant hearing, Norris
telephoned Plant Manager Wittick, asked if there were
any openings, and was told there were none. Robert
Mollinari was given an application to fill out by Sharts'
secretary who stated that the company was filled up and
was not hiring at that time but was only taking
applications. Mollinari submitted his application on
March 26. Billy Johnson saw Wittick at the plant about 3
days after the strike and asked about getting his job back.
Wittick stated they were all filled up. Earl Shope
telephoned Sharts about his job about March 19 and was
told his job was filled. A few days after the strike Robert
Taylor and G. Lowery each got an application from
Sharts' secretary. They returned them on March 27 and
March 26, respectively. Charles Patterson talked to Sharts
in his office about the first part of April, was told he
would have to be hired as a "new man" without seniority,
and was given an employment application to fill out.
Patterson testified that he mailed it back about a week
later, while Sharts testified that the Company had no
record of having received his application. Richard
Harrison saw Sharts about his job on March 13 and was
told that Sharts would have to get•a clarification before he
could tell anything. Harrison returned to the plant the
following day. When Sharts told his secretary to give
Harrison an application blank, Harrison remarked that
Sharts already had more information on him in the office
than he could possibly put down in an application. They
both laughed. Harrison took the application but never
returned it. In the latter part of July or early August,
Harrison spoke to Wittick who stated they were filled up
because they had hired 15 the day before and did not need
anyone else. In addition, the following strikers spoke to
management representatives about returning to work:
Melvin Engle on March 15 and 18, Fred Oliver on March
18 and M. Jordan on March 21 spoke to Sharts; S.
Mahoney spoke to Wittick on March 14; and S. Douglas
spoke to Assistant Plant Manager Morrow.3
Sharts admitted that the employment application which
the strikers were required to fill out is the same
application which all new applicants for employment have
been and are required to fill out. It is entitled
"APPLICATION FOR EMPLOYMENT" and, in
substance , inquires as to the applicant's name, address,
age, date of birth, citizenship, sex, marital status, physical
defects, past illnesses, past arrests, children, work and
'The only other disputed testimony in addition to that involving the
receipt of Patterson 's application , as set forth in the text , was the disputed
testimony of Sharts that he showed strikers Thompson, Rooks and Norris
a copy of his March 21 letter to the Union and told them that "these are
the rules of the game that we have to follow " I deem it unnecessary to
resolve these conflicts
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages desired, previous employment record, armed service
record, and education. He further admitted that, as a
matter of company policy, any striker who would have
been or would be reemployed would occupy the status of a
new employee and would not carry over his old seniority.
He also admitted that strikers to whom he spoke generally
inquired about whether or not they would be returning as
new employees and that he told them that they would be
"returning as new employees." He further admitted that
Respondent maintains a list of all its employees with their
mailing addresses, that Respondent has not requested any
striker to report to work or informed him that a job was
available, and that not a single striker had been reinstated
or reemployed as of the date of the instant hearing.
3. Jobs available for strikers after March 14, 1968
Pursuant to the General Counsel's subpoena duces
tecum, Respondent produced at the instant hearing a
breakdown of all its employees from the date immediately
preceding the strike to the time of the instant hearing,
which were received in evidence as General Counsel's
exhibits as follows:
General Counsel's Exhibit 2 is a list of all of
Respondent's employees (51 in number) who were
employed immediately preceding the commencement of
the strike on October 18, 1967, together with their job
classifications.
General Counsel's Exhibit 3 is a list of Respondent's
employees who engaged in the strike (51 in number),
together with their job classifications and rates of pay.
These two exhibits are identical, except that the latter also
contains the rates of pay.
General Counsel's Exhibit 4 is a list of the same 51
strikers, together with the names of their original
replacements and the replacements' job classifications,
rate of pay and dates of employment. This shows that all
original replacements were employed during the month of
November, 1967.
General Counsel's Exhibit 5 is a list of all employees
hired from the date of the commencement of the strike on
October 18, 1967 to the date of the instant hearing,
excluding the replacements listed on General Counsel's
Exhibit 4, together with their dates of employment, job
classifications and rates of pay. This list contains 121
names, with the earliest and latest dates of employment
being November 1, 1967 (W. Bracey) and September 4,
1968 (L. Henderson), respectively.
General Counsel's Exhibit 6 is a list of all new
employees who appear on General Counsel's Exhibit 4
(replacements) and 5 and who have ceased their
employment with Respondent together with the dates of
their employment terminations. This list contains 95
names, with the earliest and latest termination dates being
November 17, 1967 (W. Bracey) and September 16, 1968
(T. Fuller), respectively.
In addition, President Sharts at the instant hearing
testified that on March 14, 1968, Respondent's work force
consisted of 51 in job classifications formerly occupied by
strikers. He then named the employees who on that date
were performing the jobs or functions formerly performed
by each of the named strikers, and testified as to whether
or not they were still employed in the same positions as of
the date of the instant hearing.
The General Counsel has attached to his brief two
charts which compile, in analysis form, the data contained
in General Counsel's Exhibits 2 through 6, inclusive, and
in the testimony of Sharts as to replacement of strikers as
of March 14, 1968, hereinabove mentioned. These are
entitled Attachments A and B and indicate the specific
exhibits or testimony from which the data listed therein is
taken. Attachment A consists of nine columns, labeled A
through I, inclusive, with a heading on each column
indicating the nature of the information listed therein and
the Exhibit Number or portion of the record from which
this information is taken. Attachment B sets forth the
names of all employees hired after March 14, 1968, in
specified classifications, together with their dates of hire
and termination, where applicable. Attachements A and B
contain data which appear only in the instant record, are
purely factual, and involve no interpretations or
conclusions. I have checked the data and information
contained in these Attachments and find that they
accurately reflect the record. I accordingly adopt
Attachments A and B as part of my decision and have
annexed photo copies thereto.
As previously noted, Sharts admitted that as of March
14, 1968, the date he received the Union's unconditional
request for reinstatement, Respondent's total work force
consisted of 51 employees. An examination of General
Counsel's Exhibit 5 shows that since March 14, 1968,
Respondent employed approximately 85 new employees in
positions which strikers formerly occupied, as is reflected
in Attachment B. Moreover, an examination of General
Counsel's Exhibits 4, 5, and 6 shows that Respondent's
total work force in classifications formerly occupied by
strikers increased to 77 as of the date of the instant
hearing. i
The reason for the 50 percent increase in the work
force and for the unusually large number of new hires is
due to several factors. One factor is the great turnover, as
shown by the employment terminations. It was and is
Respondent's admitted policy to hire all employees on a
60-day probationary period. Respondent admitted that
some employees, before completing their 60-day
probationary period, either quit or were terminated
because they proved to be unsatisfactory. In addition,
Respondent's business is seasonal. Sharts testified that the
"busy season" is "from May till the first of November"
and that during that period they increased the work force
in existing classifications.
Sharts testified that he was "pretty well versed" in the
strikers' qualifications and that at the time of their
application they were considered for all the classifications
which they had occupied. He further admitted that
positions in the same classifications were interchangeable.
General Counsel's Exhibits show that many strikers had
occupied a number of classifications in addition to the one
which his replacement occupied on March 14, 1968.. For
example, Attachment A shows that striker Blackburn had
occupied three classifications (MS LDMN.-WBA-IW2)
but that Hubbard, his replacement, occupied only the
classification of MS Ldmn; striker C. H. Moore occupied
three classifications (WBA3-MS2-Elec. Maint.) but
Cusick, his replacement, occupied only the classification
of Elec. Maint.; and striker Patterson occupied three
classifications (WBA2-IW2-WS3) but Swords, his
replacement, occupied only the classification of IW3. The
same situation occurred with respect to many other
strikers. After March 14, 1968, new employees were hired
in the remaining classifications which these strikers had
This figure is computed by adding the 51 replacements listed in Exh. 4
to the 121 other employees hired since October 18, 1967, which are listed
in Exh 5, and subtracting the 95 employees who appear on these two
exhibits and who were terminated as shown on Exh. 6
AMERICAN MACHINERY CORPORATION
occupied and for which they were qualified.
A comparison of Columns F and I with Column B on
Attachment A shows that as of March 14, 1968, the
positions of 24 strikers5 were filled by replacements who
did not have the same skills or job classifications. New
employees were subsequently hired in the skills and job
classifications of these strikers. The strikers of course
were also qualified to fill lesser skilled jobs. For example,
a first class welder burner-assembler (WBA) was qualified
to fill the job of a second or third class, and a leadman
WBA was qualified to fill the jobs of all three classes.
Moreover it appears that Respondent did some shifting
and juggling in determining who constituted some of the
replacements for specific strikers. Thus, a comparison of
Column D with Column F of Attachment A shows that as
of March 14, 1968, substitutions were made for the
original alleged permanent replacements for specific
strikers although the original replacements were still
employed. In some cases, the original replacement was
then designated as the permanent replacement of a
different striker as of March 14, 1968.6 Admittedly, many
of the initial alleged permanent replacements terminated
their employment after the end of the strike, as appears
from Columns D and E of Attachment A.
The General Counsel also contends that, since
Respondent had a policy of requiring all new employees to
serve a 60-day probationary period, all replacements who
had not served their full probationary period as of March
14, 1968, when Respondent received the Union's
unconditional request for reinstatement, were not
permanent and therefore were occupying positions
available to the strikers. The Board refused to take such a
position in Kansas Milling Company, 97 NLRB 219, 220,
225-226.' In that case, the Board held that only those
employees who were terminated within their probationary
period should not be regarded as permanent employees
and that positions occupied by them were not filled by
permanent replacements as of the date of the request for
reinstatement. An examination of Columns F, G, and H
of Attachment A discloses only three probationary
replacements who fall within this category.'
In any event, even without regard to the probationary
status of some of the replacements or new hires, I find
upon consideration of all the foregoing that after March
14, 1968, a sufficient number of openings and vacancies
became available in all categories formerly held by the
strikers and for which they were qualified to have enabled
Respondent to have reinstated all the strikers. Yet
Respondent admittedly made no effort to offer any of the
available jobs to any of the strikers, a list of whose
names, addresses, and telephone numbers were admittedly
in its records. Instead, Respondent admittedly made
several inquiries since March 13, 1968, of the Florida
State Employment Service and of certain employment
agencies for the purpose of securing referrals. Indeed,
'Harrison , F F Oliver, Hampton, Hores , Dorman, Shope , Van Kirk,
Ligas, Jarvis, Norris, Patterson , Molinari, Mahoney, Todd, Lowery,
Johnson, Davis , McMullen , Peterson , Foggia, Price, Socky , Morrison, and
Parker
'See, e g , original replacements Foster, Hughes , Cusick, Morgan,
Robinson, Loggins , Hendricks , Reilly, Hastings, Burns, Williams, Sanders
and L. Conley
'The cases cited in the G C br . are inapposite as they turned on their
own facts which are significantly different from those in the instant case.
IF. Brown , E. Thomas, and T. Russ. In addition , G. C Exh 5 and 6
show that an additional probationary employee, Gaskins , who is not listed
as a replacement as of March 14, 1968, was also terminated within his
probationary period
133
Sharts testified that "its possible " he also sought
employees from other places . In addition , Respondent
admittedly hired some employees from a nearby closed
plant of the Citrus Machinery Company.
4. Respondent's contentions and concluding findings
Counsel for Respondent contends in his brief that there
is no proof that the Union acted as agent for the strikers
in making the unconditional request for reinstatement on
March 14, 1968, in view of the fact that at that time the
Union was no longer the recognized bargaining
representative at the plant. I find no merit in this
contention. The Union admittedly represented the strikers
when the strike began. That fact was not changed by the
Union's failure to represent the replacements. There is no
evidence that the Union's authority to speak on behalf of
the strikers had been revoked. Moreover, at no time did
Sharts or any other representative of Respondent question
Davidson's authority to speak on behalf of the strikers.
On the contrary, Sharts' reply letter implies a recognition
of Davidson's status in that respect. I find that a valid
unconditional request for reinstatement was made by
Union Representative Davidson on behalf of all strikers
on March 14, 1968.
Counsel for Respondent further contends that as no
jobs were available on March 14, 1968, and as the strikers
did not comply with Respondent's requirement that they
file individual employment applications and keep them
current, Respondent owed the strikers no further duty
when subsequent openings and vacancies became
available. I do not agree.
In Laidlaw Corporation, 171 NLRB No. 175, the
Board held "that economic strikers who unconditionally
apply for reinstatement at a time when their positions are
filled by permanent replacements: (1) remain employees;
(2) are entitled to full reinstatement upon the departure of
replacements unless they have in the meantime acquired
regular and substantially equivalent employment, or the
employer can sustain his burden of proof that the failure
to offer full reinstatement was for legitimate and
substantial business reasons." In the instant case there is
no showing that at the time when openings and vacancies
occurred any of the strikers had "acquired regular and
substantially equivalent employment."' As the sole reason
for not reinstating the strikers when openings and
vacancies occurred, Sharts relied on the failure of the
strikers to comply with his requirement to file individual
applications as new employees and the failure of those
who filed such applications to keep them current. The
information requested on this application was already in
Respondent's records. As employee Harrison told Sharts
when an application was offered to him, Sharts already
had more information on him in the office than he could
possibly put down in an application. Respondent also
admittedly had a list of all the strikers with their mailing
addresses and telephone numbers. The ' employment
applications were the same ones which were required to be
filed by all new applicants for employment and any
employed strikers admittedly would occupy the status of
new employees with no seniority. Under all the
circumstances, I find, contrary to the contention of
counsel for Respondent, that the requirements to file new
applications for employment and to keep them current do
not constitute "legitimate and substantial business
'Although counsel for Respondent claimed at the instant hearing that
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons" for the failure to accord the strikers full
reinstatement.
As previously found, the strikers had made an
unconditional request for reinstatement on March 14,
1968. At that time they also put Respondent on notice
that their request was a continuing one by advising that
the strikers will remain "available for employment to fill
openings when they occur or vacancies created by the
departure of employees now working." In addition, 17
strikers individually, in one form or another, made known
their desire for reemployment to representatives of
Respondent, as previously found. Under the holding in the
Laidlaw decision, which I deem controlling in the instant
case,'° Respondent was therefore required to offer the
strikers the positions which became open and available
and for which they were qualified without regard to
whether they had filed new, employment applications or
had failed to keep them current. Moreover, the
requirement that the strikers file applications for
employment as new employees with loss of seniority was
itself a discriminatory condition violative of Section
8(a)(l) and (3) of the Act, as it penalized the strikers for
having engaged in a protected concerted and union
activity. Hence, the failure to comply with this
discriminatory condition could not in any event serve as a
valid defense to the failure to reinstate the strikers.
I have previously found that sufficient openings and
vacancies in positions formerly occupied by the strikers
and for which they were qualified arose after the
unconditional reinstatement request of March 14, 1968, to
have enabled Respondent to have reinstated all the
strikers. As the strikers continued to remain employees
within the meaning of Section 2(3) of the Act and as
Respondent did not sustain its "burden of proof that the
failure to offer full reinstatement" to the strikers "was for
legitimate and substantial business reasons" I find that
Respondent's failure to accord full reinstatement to the
strikers was violative of Section 8(a)(1) and (3) of the Act
even without regard to Respondent's intent or antiunion
motivation. Laidlaw case , supra."
Moreover, I am convinced and also find that in failing
to reinstate any of the strikers, Respondent was
discriminatorily motivated in an effort to keep the Union
from regaining its representative status in the plant, and
thereby further violated Section 8(a)(1) and (3) of the Act
on this additional ground. Among the principal factors
which lead me to this conclusion are the following:
(1) The strikers were experienced employees with long
service records, some with over 15 and 20 years of service.
(2) Respondent was in need of help with the
commencement of its busy season and the increase of its
work force by about 50 percent. In addition, there was a
great deal of turnover- and new employees quit or were
terminated during their probationary period because they
proved to be unsatisfactory.
(3) Respondent kept a list of the names, addresses and
telephone numbers of all strikers but never contacted any
of them about employment, despite the Union's letter
some strikers had obtained substantially equivalent employment , he neither
adduced nor offered sufficient probative evidence to support such a finding
10I deem it unnecessary to determine whether the Laidlaw principles
would be applicable even if the request for reinstatement were not a
continuing one
"As the principles enunciated in the Laidlaw case were not applied
prospectively in that case , I find no merit in Respondent's contention that
they be applied prospectively in the instant case Respondent ' s additional
contention that the Board ' s holding in Laidlaw is wrong as a matter of law
is an argument which must be addressed to the Board and the courts
advising of their availability for future openings and
vacancies and the inquiries of a large number of them
about their jobs.
(4) Instead, Respondent sought referrals from the State
Employment Service, other employment agencies, and
hired from still other sources
(5) Respondent admittedly at no time informed the
Union or the individual strikers who applied what would
have to be done to keep their applications "current."
(6) No employment was offered even to those strikers
who had filed and kept their applications "current" within
the meaning of Sharts' own definition. Thus, when asked
by the General Counsel what he meant by "current,"
Sharts testified at one point, "Well, within at least weekly
checkups." Respondent admitted that strikers R.
Molinari, who had the classification of WBA-2, and G.
Lowery, who had the classifications of MS-2 and WBA-3,
filed their employment applications with Respondent on
March 26, 1968. General Counsel's Exhibit 5 shows that
on April 3, 1968, R. Oliver was employed in the
classification of WBA-3. Thus, when an opening for which
Molinari and Lowery were qualified arose within a week
after they filed their application, it was filled by a new
hire instead of being offered to them.
(7) Strikers Norris and Rook, who admittedly filed
their employment applications on March 26 and 22, 1968,
respectively, had been promised by Sharts- to let them
know when and if anything "opens up. Although
openings and vacancies thereafter arose in classifications
for which they were qualified, Sharts never kept his
promise and filled the openings with new hires.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section, III,
above, occurring in connection with its operations set
forth in section I, above, have a close, intimate and
substantial relation to trade, traffic, and commerce among
the several States and -tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By requiring the replaced strikers, who had made an
unconditional request for reinstatement, to file
employment applications for employment as new
employees with loss of seniority and by failing to offer full
reinstatement to said strikers when openings and vacancies
arose after their unconditional request for reinstatement,
Respondent has discriminated with respect to their hire,
tenure, and terms and conditions of employment, thereby
discouraging membership in the Union, and has engaged
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act
2. By the ,foregoing conduct Respondent has also
interfered with, restrained, and coerced its employees in
the exercise of their Section 7 rights and thereby has
engaged and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
AMERICAN MACHINERY CORPORATION 135
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act by failing to offer reinstatement to the
replaced strikers when openings and vacancies arose after
their unconditional request for reinstatement, I will
recommend that Respondent offer to the strikers listed in
Appendix B,' 2 attached hereto, immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the
discriminatory failure to reinstate them by payment to
each of a sum of money equal to that which each
normally would have earned as wages from the date of the
unlawful failure to reinstate them to the date of
Respondent's offer of reinstatement , less the net earnings
of each during such period, with backpay and interest
thereon to be computed in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289, and
shall include interest at the rate of 6 percent per annum,
to be computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716. The determination of the
exact date when an opening or vacancy arose, to which a
specific striker would have been reinstated absent the
unlawful failure so to reinstate him, is hereby deferred to
the compliance stage of this proceeding.
There remains for consideration the question of the
remedy to be accorded the six strikers who applied for
and accepted early retirement. As for the three (Rooks,
Wales and Oliver) who applied for their early retirement
after the unconditional request for reinstatement of March
14, 1968, and after Respondent's failure to reinstate them,
I agree with the General Counsel that they are entitled to
the same remedy as the other strikers and I have included
their names on Appendix B, attached hereto However, I
agree with Respondent that the remaining three (Van
Kirk, Ligas and Hampton) who applied for their early
retirement before March 14, 1968, are not entitled to the
same remedy and I have therefore excluded them.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondent, American Machinery Corporation,
Orlando, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of United Steelworkers of America, AFL-CIO, or any
other labor organization, by requiring strikers who had
made an unconditional request for reinstatement to file
applications for employment as new employees with loss
of seniority, or by failing to offer such strikers full
reinstatement to existing openings or vacancies, or by
discriminating against them in any other manner with
respect to their hire, tenure, or any term or conditions of
employment.
"This contains the names of all strikers listed in the complaint except
for the three listed infra.
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to those listed in Appendix B, attached hereto,
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of the unlawful failure to reinstate
them, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports and all other
records necessary in determining the amount due as
backpay.
(c) Notify those listed in Appendix B if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act, and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(d) Post at its plant in Orlando, Florida, copies of the
notice attached hereto as Appendix A.13 Copies of said
notice, on forms to be provided by the Regional Director
for Region 12, shall, after being duly signed by an
authorized representative of Respondent, be posted by it
immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
therewith."
"In the event this Recommended Order is 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Encorcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
APPENDIX A
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 National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in or activities
on behalf of United Steelworkers of America,
AFL-CIO, or any other labor organization, by
requiring strikers who had made an unconditional
request for reinstatement to file applications for
employment as new employees with loss of seniority, or
by failing to offer such strikers full reinstatement to
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existing openings or vacancies, or by discriminating
against them in any other manner with respect to their
hire, tenure, or any term or condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL offer to all those listed in Appendix B,
attached hereto, immediate and full reinstatement, to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings they may have suffered as a result of the
discrimination against them.
AMERICAN MACHINERY
CORPORATION
(Employer)
Dated By
(Representative) (Title)
Note: We will notify any of the above-named
employees presently serving in the Armed Forces of the
United States 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 Farces.
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.
If employees have any questions concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street , Tampa, Florida
33602, Telephone 228-7227.
APPENDIX B
1. R. G. Blackburn
2. Cecil H. Bryant
3. Samuel Carlis
4. Frank Lee Clay
5. James John Davis
6. Fred E. Dorman
7. Shelby B. Douglas
8. Melvin Engel
9. Leland F. Foggin
10. Lonnie Gamble
11. Richard Harrison
12. Austin G. Holben
13. John M. Hores
14. Melvin R. Hyder
15. Jasper F. Jarvis
16. Herbert C. Jeffrie
17. Billy Johnson
18. Mitchell F. Jordan
19 Coy E. Lewis
20. G. M. Lowery
21. Stanford J. Mahoney
22. John W. Martin, Sr.
23. Leslie T. McMulun
24. Billy Mlotkowski
25. R. V. Molinari
26. Charles H. Moore
27. E. J. Moore
28. William D. Morrison
29. Gene H. Norris
30. F. F. Oliver
31. Charles E. Patterson
32, John H. Peterson, Sr.
33. Wendel Price
34. Philip S. Rooks
35. John M. Schlayer
36. Earl W Shope
37. John W. Socky
38. Thurman Soles
39. Robert James Taylor
40. Sammy Lee Thompson
41. Alford S. Todd
42. Fred D. Wells
43. John G. White
44. D. Poole
45. D. Parker
46. Wales
ATTACHMENT "A"
Column A B C D E F G H I
Info, from
GC Ex 3
Strikers
Info. from GC Ex 3
Job Classification
of Strikers
Info. from
GC Ex. 4
Job Class. of
Initial
Replacement
Info. from
GC Ex. 4
Initial
Replacement
Info from GC
Ex 6 - Term-
ination Date
of Initial
Replacement
Testimony
188-209
Replacements
as of 3/14/68
Info. from GC
Ex. 4 & 5
Hiring Dates of
Those in
Column "F"
Info from GC
Ex 6 Termma-
tion Dates of
Those in Column
"F"
Info. from GC
Ex 4&5
Class. of
Those in
Column "F"
P S. Rooks Tr.Dr -Cr.Op -Painter-Lab Cr.Op J L. Espejo still employed Espejo 11/9/67 still employed Cr Op.
M F. Wales SM 1 Ldmn SM I Ldmn E Crisp 1/2/68 Platt 2/7/68 7/26/68 SM Ldmn.
E.J. Moore WBA Ldmn WBA Ldmn W W. Phelps 3/22/68 Rouse 1/16/68 still employed WBA Ldmn
B H. Harrison WBA I WBA Ldmn W L Taylor 2/21/68 Thompson 3/6/68 still employed WBA 2
R G. Blackburn MS Ldmn -WBA-IW 2 MS Ldmn J Hubbard still employed Hubbard 11/9/67 still employed MS Ldmn
S L Thompson WBA Ldmn WBA Ldmn W R. Harris 1/17/68 Hodge 2/19/68 still employed WBA Ldmn
F F Oliver WBA Ldmn. WBA Ldmn E,L Conley 12/1/67 P Ferguson 12/19/67 still employed WBA 3
R S Hampton WBA I WBA 1 W T Treadwell 1/12/68 L Conley 11/8/67 7/19/68 WBA 3
M A. Engel WS Ldmn. WS Ldmn R Terry 3/22/68 Stone 12/12/67 still employed WS Ldmn
J M Hores WBA 1 WBA 3 G.L Hesson 11/24/67 Hodges 3/13/68 still employed WBA 2
F F. Dorman WS 1 WS 3 J.W. Foster 5/20/68 Reilly 11/9/67 still employed WS 2
E.W. Shope WBA Ldmn -Tr Dr WBA 3 G F Hughes 5/3/68 Morgan 11/13/67 still employed WBA 3
C H. Moore WBA 3-MS 2-Elec.Maint. Elec Maint D J. Cusick 3/28/68 Smith 2/28/68 still employed Elec. Maint
M E Van Kirk WBA 1-WS 3 WBA 3 B. Flake 11/29/67 Hughes 11/9/67 5/3/68 WBA 3
J. Ligas MS I-WS 3 MS 2 J F. Nosal 8/12/68 Nosal 11/9/67 8/12/68 MS 2
S. Carlis Cr Op -Fk.Trk -Yd Trk -GL GL G A Leigh 11/29/67 Burns 11/11/67 still employed GL
J Jarvis WBA 1 WBA 3 B F Morgan still employed Richardson 1/29/68 still employed WBA 3
L Gamble Ptr: Fk.Trk -GL Fk Tr -GL W Mikell still employed Mikell 11/8/67 still employed Fk,Tr -GL
J Schlayer Stk,Clk.- CIS 2 Stk.Clk R D. Small still employed Small 11/13/67 still employed Stk Clk
C Bryant GL-Grind GL L Robinson 4/5/68 Davis 2/21/68 still employed GL
R J Taylor Wax Dept -WS 1 Wax Dept J E Elder still employed Elder 11/9/67 still employed Wax Dept
G.H Norris WB 1-WS-SM I SM 2 L D. Loggins 6/21/68 Ferguson still employed
C.E Patterson WBA 2-IW 2-WS 3 IW 3 J.A Swords still employed Swords 11/10/67 still employed 1W 3
R. Mollinari WBA 2 WBA 3 S J Hendricks 5/25/68 Matler 2/5/68 still employed WBA 3
C. Lewis IW Ldmn -WBA 2 IW Ldmii J M. Evans 8/9/68 Evans 11/13/67 8/9/68 IW Ldmn.
S. Mahoney WBA 2 WBA 3 B G Summerford 1/26/68 Brown 3/11/68 5/2/68 WBA 3
M. Jordan MS 2 MS 2 D Resseguia 3/11/68 Harrell 2/27/68 still employed MS 2
A Todd WS 2 WS 2 A A Reilly still employed Gausch 2/5/68 4/17/68 GL
G Lowery MS 2-WBA 3 MS 3 J A. Tezak 12/15/67 Cusick 11/9/67 3/28/68 Elec. Maint
A Holben Painter Painter M R Kurbaba 1/10/68 Brewer 1/25/68 still employed Painter
B. Johnson WBA 3 WBA 3 A J Cain 11/24/67 Hastings 11/10/67 still employed WBA Hlpr
H Jeffries WBA 3 WBA Hlpr J.E Hastings still employed Hamm 11/20/67 still employed WBA 2
F. Wells WBA 3 WBA Hlpr M Owens 11/24/67 Franklin 3/10/68 5/24/68 WBA 3
M Hyder IW 3 IW 3 T H. Stover 7/19/68 Stover 11/10/67 7/19/68 IW 3
J, Davis IW 3 IW 3 R Smolk 11/17/67 E. Thomas 2/26/68 4/16/68 GL
L. McMullen WBA 3 WBA 3 M.J. Faulk 12/30/67 J. Sanders 8/21/68 WBA Hlpr
S Douglas MS 3 GL A E. Nagorka 12/1/67 Ricks 2/12/68 still employed MS 3
F Clay GL GL H R. Ricketson 12/4/67 St Clair 2/6/68 still employed GL
J. Peterson WBA 3 WBA 3 C J Hammond 11/29/67 T. Russ 2/12/68 3/15/68 GL
L Foggin WBA 3 GL F.J Burns still employed Williams 11/13/67 3/29/68 GL
W Price WBA 3 GL A C. Williams 3/29/68 Foster 11/10/67 5/20/68 WS 3
D Poole SM 3 SM 2 W H. Neuroth 1/8/68 Loggins 11/9/67 6/21/68 SM 2
J Socky MS 1 MS 3 W S. Nickerson 5/31/68 Nickerson 11/10/67 5/31/68 MS 3
T. Soles WBA 3 WBA 3 W W Whited 7/19/68 Whited 11/8/67 7/19/68 WBA 3
W. Morrison WBA 3 WBA Hlpr J C Sanders 8/27/68 Phelps
J Martin, Sr. WBA 3 WBA 3 W J Langley 12/1/67 Hendricks 11/21/67 5/25/68 WBA 3
B. Mlotkonski WRA 3 WBA 3 Lloyd Conley 7/19/68 Terry 11/10/67 3/22/68 WS Ldmn.
D Parker WBA 3 GL D. Naismith 1/5/68 Robinson 11/8/67 4/5/68 GL
J. White
I
WBA 3 WBA 3 C. Gagnon 2/2/68 Gagnon 11/20/67 2/2/68 WBA 3
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Attachment B
(Information herein was obtained from G.C Exhs. 5 & 6)
Names, classifications, hiring and termination dates of these employees who worked at American Machinery Corporation
following March 14, 1968, to the present, but does not include those listed in Column F of Attachment A.
WBA Leadman
Name Hiring Date Termination Date
A Winfrey 4/30/68 Employed as of hearing date
H. Goodwin 7/22/68 Employed as of hearing date
WBA 1
C. Stickney 7/18/68 8/9/68
L. Scroggins 7/18/68 8/20/68
R. Mallard 7/20/68 7/31/68
WBA 2
C. Bolin 5/7/68 Employed as of hearing date
J. McGinnis 5/7/68 6/14/68
C. Stewart 7/23/68 8/2/68
L. Jarvis 7/29/68 8/2/68
D. Jacks 7/29/68 Employed as of hearing date
J. Anderson 7/30/68 8/15/68
W. Largent 8/20/68 8/22/68
J. Hargis 8/27/68 Employed as of hearing date
WBA 3
H. Thompson 4/15/68 Employed as of hearing date
W. Daugherty 4/25/68 7/ 19/68
R Oliver 4/30/68 Employed as of hearing date
W Robinson 5/13/68 Employed as of hearing date
D. Carney 5/ 15/68 Employed as of hearing date
D. Duncan 5/20/68 Employed as of hearing date
AMERICAN MACHINERY CORPORATION 139
J. Adams 5/22/68 Employed as of hearing date
W. Burkholder 5/23/68 Employed as of hearing date
R. Francis 5/27/68 7/19/68
R. Geddis 6/6/68 Employed as of hearing date
T. Newborn 6/6/68 Employed as of hearing date
A. Erwin 6/7/68 Employed as of hearing date
G. Charbonneau 6/10/68 8/23/68
R Oviatt 6/17/68 Employed as of hearing date
W McCullar 6/24/68 7/19/68
P. Robinson 7/1/68 7/19/68
D. Norton 7/13/68 7/29/68
E. Stamford 7/17/68 Employed as of hearing date
J Todd 7/24/68 Employed as of hearing date
S. Noniewicz 7/24/68 Employed as of hearing date
H Wheeler 8/1/68 Employed as of hearing date
B. Roach 8/1/68 Employed as of hearing date
E. Jackson 8/26/68 Employed as of hearing date
WBA Helper
R. Feacher 4/10/68 8/3/68
R. McGlothlin 4/15/68 8/15/68
M. Jenner 5/ 15/68 Employed as of hearing date
H Smith 8/8/68 Employed as of hearing date
B. Schmidt 8/8/68 9/3/68
D. Hurst 8/14/68 8/22/68
J. Ragins 8/22/68 Employed as of hearing date
SM Leadman
E Goodwin 7/18/68 Employed as of hearing date
SM 1
H Bertot 7/15/68 Employed as of hearing date
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SM2
J. Hutchinson 7/18/68 9/4/68
SM 3
C. Henley 4/16/68
7/19/68
H. Ellis 6/10/68 Employed as of hearing date
P. Levas 7/15/68 Employed as of hearing date
W. Tompkin 7/23/68 7/26/68
SM Helper
W. Gampher 7/ 18/68 Employed as of hearing date
L. Garavalia 7/22/68 8/2/68
GL
J. Gaskins 2/14/68 4/5/68
B. Acree 4/16/68 7/19/68
M. Lamprey 4/22/68 Employed as of hearing date
G. White 4/22/68 5/3/68
C. Jolly 5/1/68 Employed as of hearing date
C. Hill, Jr. 5/1/68 Employed as of hearing date
R, Criswell 5/6/68 5/10/68
B. Mikell 5/27/68 6/20/68
F. Ryles 6/1/68 Employed as of hearing date
D Samples 7/1/68 7/12/68
V. Gray 7/3/68 Employed as of hearing date
G. Myers 7/8/68 7/24/68
T. Fuller 7/24/68 - 9/16/68
U. Crews 8/2/68 Employed as of hearing date
E. Dent 8/2/68 Employed as of hearing date
J. Gray 9/3/68 Employed as of hearing date
L Henderson 9/4/68 Employed as of hearing date
AMERICAN MACHINERY CORPORATION 141
IW Leadman
W. Elliot 7/24/68 Employed as of hearing date
1W 3
J. Streeter
M Farris
H, Hagan
A. Barnes
J. Meade
7/18/68
7/22/68
7/22/68
8/5/68
9/3/68
Employed as of hearing date
Employed as of hearing date
8/2/68
8/19/68
Employed as of hearing date
1W Helpers
B. Adams
A. Gillian
7/18/68
8/7/68
8/2/68
Employed as of hearing date
MS 1
S. Smathers 6/17/68 8/9/68
MS 2
R. Armstrong 7/22/68 8/23/68
MS 3
H. Bathrick
D. Elliott
4/15/68
6/3/68
Employed as of hearing date
Employed as of hearing date
WS Helper
J. Hilburn
J. Scurlock
6/6/68
6/20/68
6/28/68
7/3/68
Electrical Maintenance
J Maxon 5/6/68 Employed as of hearing date
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Painter
L. Robeson
F. Watson
6/17/68
8/27/68
Employed as of hearing date
Employed as of hearing date