Autopart Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 21, 1948

78 N.L.R.B. 461 (N.L.R.B. 1948)

In the Matter of AUr0PART MANUFACTURING COMPANY and UN ITED
AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW-CIO
Case No. 13-C-3110.-Decided July 21, 19418
DECISION
AND
ORDER
On August 21, 1947, Trial Examiner Mortimer Riemer issued his
Intermediate Report in the above-entitled proceeding, finding that'the
Respondent, Autopart Manufacturing Company, had engaged, and
was engaging, in certain unfair labor practices,, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Report
together with a supporting brief.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions, and the entire record in
the case. To the extent that they are consistent with this Decision and
Order, the Board adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
1. The Trial Examiner found, and we agree, that 12 of the Respond-
ent's employees struck on December 12, 1946; that the strike was a
protected concerted activity ; and that the Respondent on the same
date refused to reemploy the strikers, thereby violating Section 8 (1)
i Those provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act, which
the Trial Examiner herein found were violated, are continued in Section 8 (a) (1) and
B (a) (3) of the Act, as amended by the Labor Management Relations Act of 1947.
2 Pursuant to the provisions- of Section 3 (b) of the Act, as amended, the Board has
delegated its powers in connection with this case to a three -man panel consisting of the
undersigned Board Members [Houston, Reynolds , and Glay].
78 N. L. R. B., No. 57.
461
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 8 (3) of the Acts The Trial Examiner properly recommended
that the Respondent be ordered to reinstate the strikers with back pay.
However, we do not concur in the Trial Examiner's recommendation
with respect to Milton Wilson. On December 12, 1946, the day of the
strike and refusal of reemployment, this employee was absent from
work by reason of illness. About a week later he returned to the
plant to see if it was in operation. Finding the plant dark for the most
part and only one man at work, he left the plant, and at the time of
the hearing in this case he had not applied for-reemployment. There
is no evidence in the record to indicate that if Wilson had applied for
reemployment at the time of his visit to the plant, his application
would have been denied. In fact, in view of the Respondent's re-
tention of the four employees who did not join the strike on December
12, it seems reasonable to infer that Wilson, who had likewise not
joined the strike, would have been treated in the same manner as the
other non-strikers. Accordingly, we find that the Respondent did not
refuse to reemploy Wilson and that Wilson was not otherwise excused
from applying for reemployment in order to establish his right to re-
instatement.4 We conclude, therefore, that the Respondent's failure to
reemploy Wilson did not violate Section 8 (3).
2. The Respondent contends that in view of the removal of super-
visors from the protection of the amended Act, the Trial Examiner
erred in recommending the reinstatement with back pay of David
Seigel, a supervisor. We recently rejected a similar contention in
Matter of Republic Steel Corporation, 77 N. L. R. B. 1107.
THE REMEDY
- Having found that the Respondent unlawfully refused to rein-
state the employees listed in the attached "Appendix A," and William
Jemison, we shall order that the Respondent offer each of them im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights
and privileges. Reinstatement of these employees shall be effected
in the following manner :
The Respondent will be required to displace, by transfer or other-
wise, employees who have succeeded to the former position of any of
these employees. Further, all employees hired after December 12,
3 The Respondent' s refusal to reemploy the strikers also constituted an independent
violation of Section 8 (1) of the Act , inasmuch as the Respondent 's conduct was directed
against the concerted activities of the strikers protected under Section 7 of the Act.
Whether the Respondent's conduct be regarded as a violation of Section 8 (1) or Section
8 (3), we find that it is necessary to effectuate the policies of the Act to order the Remedy
herein set forth
4 Cf. Matter of Container Manufacturing Co., 75 N. L R. B. 1082.
AUTOPART MANUFACTURING COMPANY 463
1946, for the same or substantially equivalent positions shall be dis-
missed, if necessary, to provide employment to the persons to be
offered reinstatement. If, even after this is done, there is not, by
reason of reduction in the number of employees needed, sufficient
employment immediately available for the remaining employees, in-
cluding those to be offered reinstatement, all available positions shall
be distributed among such remaining employees in accordance with
the Respondent's usual method of reducing its force, without discrimi-
nation against any employee because of his union affiliation or activi-
ties, following a system of seniority to such extent as has heretofore
been applied in the conduct of the Respondent's business. Those em-
ployees remaining after such distribution, for whom no employment is
immediately available, shall be placed upon a preferential list prepared
in accordance with the principles set forth in the previous sentence,
and shall, thereafter, in accordance with such list, be reemployed in
their former or substantially equivalent positions as such employment
becomes available and before other persons are hired, for such work.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Autopart Manu-
facturing Company, Chicago, Illinois, and its officers, agents, suc-
cessors and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Automobile, Aircraft &
Agricultural Implement Workers of America, UAW-CIO, or in any
other labor organization of its employees, by refusing to reinstate
any of its employees or in any other manner discriminating in regard
to their hire and tenure of employment and any terms and conditions
of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor' organizations, to join or assist United Automobile, Aircraft
& Agricultural Implement Workers of America, UAW-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted aid and
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to the employees named in "Appendix A" immediate and
full reinstatement to their former or substantially equivalent positions,
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to their seniority and other rights and privileges
in the manner set forth in the section above entitled "The Remedy,"
placing those employees for whom employment is not immediately
available upon a preferential list, in the manner set forth in said
section, and thereafter in said manner offer them employment as it
becomes available ;
(b) Make whole the employees listed in "Appendix A" for any loss
of pay they may have suffered by reason of the Respondent"s discrimi-
nation against them, by the payment to each of them of an amount
equal to that which he normally would have earned as wages during
the period from December 12, 1946, to the date of the Respondent's
offer of reinstatement or placement upon a preferential list, in the
manner set forth in the section entitled "The Remedy," less net earnings
during said period.
(c) Offer to William Jemison, in accordance with the Selective
Service Act, after discharge from the United States Army, immediate
and full reinstatement to his former or substantially equivalent posi-
tion, or to one which he is qualified to fill, without prejudice to his
seniority or other rights and privileges, or placement upon a preferen-
tial list if such employment is not immediately available in the manner
provided in "The Remedy" ;
(d) Make whole William Jemison for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him
by the payment to him of a sum of money equal to the amount he would
normally have earned as wages during the periods (1) between the
date of the Respondent's unlawful discrimination and the date of his
enlistment into the United States Army and (2) between the date
five (5) days after his timely application for reinstatement and the
date of the offer of reinstatement, or placement upon a preferential
listed by the Respondent, less his net earnings during those periods;
(e) Post throughout its plant in Chicago, Illinois, copies of the
notice attached to. the Intermediate Report, marked "Appendix B." s
Copies of said notice, to be furnished by the Regional Director for
the Thirteenth Region, after being signed by the Respondent's rep-
resentative, shall be posted immediately by the Respondent upon re-
ceipt thereof, and maintained by it for at least sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
This notice shall be amended, however, by striking from the heading the words
"The recommendations of a Trial Exam . ner" and snbatitutiu g therefor the words "A
Decision and Order ," and by striking the name of Milton Wilson fiom the notice . If this
Order is enforced by a decree of a United States Ciicuit Couit of Appeals , these shall be
inserted in the notice, before the words "A Decision and Order ,' the words • "A Decree of
the United States Circuit Court of Appeals Enforcing "
AUTOPART MANUFACTURING COMPANY 465
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(f) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of the receipt of this
order what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent has discriminated
against Milton Wilson.
APPENDIX A
Juanita Anderson Thomas J. Matthews Frank F. Vavoptic
Dolphin Hamilton David Seigal James A. Walker
Robert R. King Henry Skwarczyk Marguerite Woods
Otto Major Harry Tiinner
INTERMEDIATE REPORT
Mi. Robert T Di ake, for the Board.
31r. Stanford Clinton, of Chicago, Ill., for the respondent.
Mr. Iriveng Meyers and Mr. Charles Winters, of Chicago, 111, for the Union.
STATEMENT OF THE CASE
Upon a first amended charge filed May 9 , 1947, by United Automobile , Aircraft
& Agricultural Implement Workers of America, UAW-CIO, herein called the
Union, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Thirteenth Region ( Chicago , Illinois ), issued a com-
plaint dated June 10, 1947 , against Autopart Manufacturing Company, herein
called the respondent , alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations
Act, 49 Stat 449, herein called the Act.
With respect to the unfair labor practices the complaint alleged in substance,
that the respondent : ( 1) discharged 13 named employees on December 12, 1946,
and thereafter refused to reinstate them for the reason that they joined and
assisted the Union and engaged in concerted activities , thereby discouraging
membership in the Union , and (2) by reason of the foregoing acts interfered with,
restrained , and coerced its employees in the exercise of their rights guaranteed
in Section 7 of the Act.
Copies of the complaint together with notice of hearing thereon were duly
served upon the respondent and the Union The respondent filed an answer in
which it admitted certain factual allegations of the complaint , denied that it
had engaged in any unfair labor practices , and averred that the employees
"voluntarily and deliberately terminated their employment by walking off the
job . . . in spite of the most urgent pleas of the employer not to do so and in
the face of clear and repeated warnings of the employer that if they walked off
the job they would be deemed to have resigned their positions."
- Pursuant to notice,'a hearing was held on July 14, 15, and 16, 1947, at Chicago,
Illinois , before Mortimer Riemer, the undersigned Trial Examiner duly desig-
Is
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated by the Chief Trial Examiner. The Board and respondent were represented
by Counsel, the Union by counsel and an International Representative, all of
whom participated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses and to introduce evidence bearing upon the issues was
afforded all the parties. At the conclusion of the Board's case, the respondent's
motion to dismiss the allegations of the complaint respecting Milton Wilson, one
of the employees allegedly discharged on December 12, 1946, was denied. At the
conclusion of the hearing, ruling was reserved on respondent's motion to dismiss:
The motion is disposed of by the recommendations hereafter set forth. Oral argu-
ment was had upon the record at the conclusion of the hearing upon the issues
raised by the hearing All counsel waived the opportunity to file briefs with the
undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. 1HE BUSINESS OF THE RESPONDENT
4
The Autopart Manufacturing Company, the respondent herein, is an Illinois
corporation with its place of business in Chicago, Illinois, where it is engaged
in the manufacture and sale of automobile parts and accessories. In the course
and conduct of its business the respondent has continuously caused quantities
of raw material consisting chiefly of metal and other products to be purchased
and transported in interstate commerce to its plant in Chicago, Illinois, from
States other than the State of Illinois. The value of such material for the year
1946 exceeded $50,000. During the same period the sales of finished products
exceeded $100,000, of which approximately 50 percent in value was sold and
shipped from the Chicago plant, to points outside the State of Illinois.
The respondent admits that it is engaged in interstate commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Automobile, Aircraft & Agricultural Implement Workers of America,
UAW-CIO, is a labor organization, admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
The hearing herein "was largely a contest in veracity" between Board witnesses
and those put on by respondent as to whether the employees named in the com-
plaint were, as contended by the Board, discharged on December 12, 1946, or
whether as respondent urged, they decided after being fully advised of their
rights, to quit and walk off their jobs There is less serious conflict in the
testimony concerning the efforts thereafter made by the employees to secure
reemployment and reinstatement to their jobs.
The respondent is a wholly owned subsidiary of Universal Parts, Inc., which
concern is engaged in the wholesale distribution of automobile parts and acces-
sories. Not only is the respondent a wholly owned subsidiary but it appears quite
clearly from the record herein, that the parent corporation controls and di-
rects the respondent's manufacturing processes, and the distribution of its finished
products. When first organized in 1945, the respondent occupied a portion of
the premises used by the parent corporation. About September 1, 1946, the re-
spondent moved to other premises.
AUTOPART MANUFACTURING COMPANY 467
Sometime in early November 1946, Harry Tanner, who was first employed by
Universal Parts, Inc., and later transferred to the respondent, together with a
few other employees, decided to form "an organization, a union." Tanner
talked to Charles Winters, the Union's International Representative, who in-
formed Tanner that he would file a petition for certification of representatives on
behalf of the employees On November 12, the Union filed with the Board's Re-
gional Office a petition for certification. At a time not definitely fixed by the
testimony, but about the time the petition was filed, Barney Grawoig, the respon-
dent's president, talked to three employees, Phillip Bodey, David Seigel and
Frank Vavoptic. In the course of this conversation, Grawoig solicited their
opinions concerning unions. Grawoig stated that he had no objection to unions
but that he would not submit to dictation by a union. It. appears in addition,
that Grawoig told the men that if an election was held in the plant, they could
not vote because of their positions as supervisors. Seigel expressed the opinion
that unions were desirable because of the security which they gave employees,
but Grawoig indicated that he was the only one who could guarantee employees
job security.
The undersigned attaches no particular significance to this incident except for
the reasons hereafter stated. There is no evidence that Grawoig expressed any
anti-union sentiment or undertook by any of his comments to indicate anything
but an expression of opinion. The point is raised, however, concerning the
supervisory status of the individuals to whom he talked. Tested by the indicia
of supervisory status customarily employed such as possession of authority to
hire or fire, make recommendations concerning hiring and firing, authority to
issue instinctions, transfer employees, confer about production problems and
matters of this nature, it appears clearly that Bodey and Seigel were super-
visors However, in the undersigned's opinion Vavoptic was a receiving and
shipping clerk who not only lacked supervisory status, but seldom, if ever, had
occasion to exercise any authority because his position never gave him an
opportunity to do so. Under an expanded production program, Vavoptic might
have become a supervisor but there is nothing in this record to indicate that he
enjoyed or possessed such position, the respondent's assertions to the contrary
notwithstanding.
This issue of the supervisory status of the three employees is discussed be-
cause under the present Act there is no sanction in law for the discharge of
employees for engaging in union activities even though they possessed supervisory
status. Bodey is not named in the complaint. Assuming, arguendo, that Seigel
and Vavoptic were supervisors, their rights as employees under the Act would
still be protected regardless of that status. Seigel was a supervisor and Vavoptic
was not. Under the Labor Management Relations Act, 1947, supervisors are
not embraced within the definition of the term "employees." Under the new
law, employees possessing the status of supervisors have no protection of bar-
gaining rights and have no redress against employers for discrimination because
of their union activity. The recommendations in this case, however, are based
upon the National Labor Relations Act and on the decisions of the Board and
courts enforcing that Act.
On November 21, the Board's Regional Office served notice of a joint con-
ference to be held on the Union's petition for certification. The Union in its
petition sought to establish as an appropriate unit, all production, assembly,
maintenance, and receiving and shipping room workers, excluding supervisors
and clerical employees employed by the respondent. Approximately 17 em-
ployees were in the alleged unit. At the conference held on December 3, the
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board representative suggested a resolution of the question raised by the peti-
tion by the holding of a consent election. The respondent objected on the ground
that employees of the parent corporation, Universal Parts, Inc, should be in-
eluded in the unit. On December 4, Winters suet with some of the respondent's
employees. He explained that because of the respondent's contention as to the
appropriate unit it would be some time before an election could be scheduled at
the plant.
Following the closing of the shift on December 11, a number of the employees
met on a street corner near the plant. At this street corner meeting, Tanner
presided as spokesman and explained to the employees that the failure to obtain
the respondent's consent was holding up the election. Tanner stated that he
was going to see Grhwoig the next morning in an effort to induce the respondent
to consent to an election. It was also decided that if, by 11 o'clock on the
morning of December 12, the respondent did not indicate its willingness to go
along in a consent election, the employees would walk out of the plant. On the
morning of December 12, Tanner told Vavoptic that if the respondent did not
indicate its willingness to agree to a consent election, the employees would walk
out at 11 o'clock that morning.
At about 8: 30 a. m. on December 12, Tanner talked to Norman Ferdinandsen,
the respondent's production manager. According to Tanner, he told Ferdinand-
sen that he spoke for a majority of the employees; they wanted to know about
the election ; when it would be held ; and asked for the respondent's answer by
11 o'clock that morning. Tanner testified that he wanted to know who was
holding tip the election so that he could talk to the individual that was responsible
for the delay. He testified further that if the respondent's answer was received
by 11 o'clock this would give the employees an opportunity during the lunch
hour to decide upon their next step. He denied that anything was stated about
the employees' intention to stage a walk-out at 11 o'clock if the respondent's
consent to an election was not obtained. Ferdinandsen and Howard Munger,
the respondent' s engineer , who was present, testified in substance , that Tanner
delivered an ultimatum to the effect that unless the respondent would agree to
a consent election and to give its answer to that effect by 11 o'clock, the em-
ployees would walk out. The undersigned deems it unnecessary to resolve this
particular conflict in testimony for the ultimate disposition of the issues herein
is unaffected in the undersigned's view of the case, by what Tanner did or
did not say. It is clear that following the conversation Tanner was told that
he would have his answer within a short time.
Munger and Ferdinandsen conferred immediately with Grawoig and Harry
R. Hoffman, the respondent' s manager of operations, and told them of Tanner's
demands. They consulted by telephone with Stanford Clinton, their attorney,
and it was agreed to meet as quickly as possible at the respondent's. plant.
Shortly thereafter the respondent's officials met in Ferdinandsen's office. There-
after Clinton arrived and the employees were called into the office. As to what
occurred thereafter is in sharp conflict. Tanner testified that after Clinton was
introduced to the assembled employees and Tanner had identified himself,
Clinton stated that he understood that Tanner was going to close the plant at 11
o'clock. Tanner interrupted to say that this was a misunderstanding and that he
had never uttered such a threat. He testified further, that Clinton went on to
say that Tanner had inquried about an election and in response to this inquiry,
Clinton told the employees that there would be no election that day or any other
day, there was no, need to wait until 11 olclock, all of the employees were dis-
AUTOPART MANUFACTURING COMPANY 469
charged and they could leave the plant. Whereupon the employees filed from the
room, returned to their places of work, gathered up their personal belongings and
left the plant. Tanner testified also that Clinton remarked after he had dis-
charged the employees, that they could try to figure out a way of getting their
jobs back. This version of Clinton's remarks is substantially supported by the
testimony of Seigel, in effect, that Clinton told the employees they did not have
to wait until 11 o'clock, they could all punch out, they were fired and could figure
out a way of getting back.
On the other hand, the respondent's witnesses all testified in substance, that
after Clinton was introduced to the employees and Tanner had identified himself,
Clinton then told them of Tanner's demands which Tanner did not deny. Clinton
advised the employees that the respondent would not consent to an election now
or at any other time because a unit question was involved which would have to be
decided by the Board. Clinton stated, so it was testified, that if the employees
walked off the job, the respondent would consider their action as having quit. He
urged them to continue their employment, but since it was a free country, they
could go or remain. They testified also that Clinton warned Tanner that he was
assuming a great responsibility by taking the employees off the job for if lie did
so he would be responsible for getting them back on the job. Following Clinton's
remarks all the employees but four left the plant. The respondent's witnesses
denied that Clinton told the employees they were fired or discharged. Although
most of the witnesses testifying in the respondent's behalf, gave testimony which
was closely parallel and somewhat stereotyped by reason of lack of dissimilitude,
it cannot for that reason be disregarded. Moreover, doubt is thrown upon
the accuracy of the version given by Tanner and Seigel by reason of the testimony
of Marguerite Woods, one of the Board's witnesses. She testified that Tanner
remarked that if no answer was forthcoming by 11 o'clock "that I [Tanner] would
leave." Woods could not recall that Clinton told Tanner that he was fired and
she had no recollection that Clinton used the words "fired or discharged."
If the testimony of Tanner and other Board witnesses is credited, in the
undersigned's opinion, Clinton's action was a clear violation of the Act because
the employees were discharged for engaging in concerted activity on behalf of
their union. If the testimony of the respondent's witnesses is credited, however,
it would appear that the employees under Tanner's leadership reacted to Clinton's
remarks by taking concerted action when the respondent refused to enter into
a consent election and insisted upon its right to have the Board decide the
question of representation. The undersigned is of the opinion that the record
as a whole and a preponderance of the clear and persuasive testimony establishes
that after Clinton finished his remarks the employees struck to enforce their
demand. It is difficult to appraise the nuances of language and the subtle
variations in the impact of Clinton's words and their meaning to Tanner and
the employees and their meaning to Clinton and the respondent's officials. The
undersigned is of the opinion nonetheless, that regardless of language used by
Clinton to state the respondent's position, the employees struck precipitately at
the conclusion of Clinton's remarks, hoping by their conduct to force a decision
favorable to them. It was not intended thereby to abandon their employment
but rather by the strength of their united action to get a reversal of the respond-
ent's position on the election.
When the employees left the plant they gathered on the street corner and
talked things over and decided to telephone Winters. Tanner told Winters that
all the employees had been fired. Winters asked them to come to the Union's
798767-49-vol. 78 31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office. There Winters advised the employees to return to the plant, seek rein-
statement to their jobs and let the Board handle the representation question.
Sometime between 1 and 2 o'clock that afternoon all of the employees returned
to the plant. Production had been suspended, the plant was in darkness and it
would appear that no one was at work with the possible exception of two part-
time employees. Tanner, still acting as spokesman for the employees, told
Ferdinandsen that the employees had returned to see if they could obtain their
jobs and that they were willing to let the Board settle the question of representa-
tion. Ferdinandsen told the employees that they would not be rehired and
none of them could return because they all had been discharged Tanner quotes
Ferdinandsen as saying: "No, you can't go back to work because you are all
fired, I am out, I can 't do nothing about it." Since Ferdinandsen was discharged
either that afternoon or the following morning by Grawoig, it may well be
that the latter portion of the testimony just quoted refers to Ferdinandsen's
status. Woods, a credible witness, testified that Tanner told Ferdinandsen that
his action amounted to a lock-out and that Ferdinandsen replied, "Yes, lock,
stock and barrel." The testimony of other Board witnesses is substantially to
the same effect. Ferdinandsen's account of what transpired when the employees
returned seeking reinstatement indicates clearly that their applications were
rejected. He testified simply that lie advised them "that when they had walked
out they had quit, and that we did not have any employment for them." He
denied that he stated'they were "fired." He denied also that he told the em-
ployees that they were locked out because having quit their employment they
were no longer employees and could not be locked out. It is clear beyond any
doubt that when the employees returned to the plant, seeking unconditional
reinstatement, they ,Nere denied an opportunity to fill the jobs they had vacated.
Hoffman testified that Ferdinandsen had no right to reemploy the returning
employees, "because they walked out together."
In the undersigned's view of the case, whatever remedial rights the employees
possess under the Act arise out of the respondent's action in refusing to rein-
state them. As heretofore indicated, regardless of language used by Clinton,
when the employees left the plant they engaged in concerted action in the nature
of a strike to enforce their demand. Nor is it significant whether the conduct was
wise or justified. Certainly their conduct cannot be condemned as being illegal
per se because they sought to force the respondent to take action it was not
required by law to take. The respondent had a right, in view of the unit con-
tention that had been raised, to refuse to go into a consent election- The em-
ployees having been warned by Winters of the delay involved in going to an elec-
tion, sought by their economic strength to have the respondent recede from its
position. They were unsuccessful in their efforts
When, however, the employees on the advice of their union representative,
returned to the plant seeking reinstatement, they had dropped their original
efforts to force the respondent into a concession and now were willing to abide by
the orderly processes of the Board and let it solve the question of representation.
Putting it briefly, at this moment the employees had abandoned the strike, and
were now seeking reinstatement to their old jobs, under the same terms and con-
ditions as had existed prior thereto. This the respondent was not willing to allow.
It is clear that in the interval between the time the employees left the plant and
when they returned , the respondent had not hired or assigned any employees to
fill their places.
AUTOPART MANUFACTURING COMPANY 471
The undersigned is of the opinion that disposition of this case is controlled by
established principles of law. It is clear from the definition of an employee in
Section 2 (3) of the Act, that a strike does not end the employer-employee rela-
tionship. Here the individuals ceased work in connection with a current labor
dispute. In N. L R. B v Renungton Rand, Inc., 130 F. (2d) 919, 927, the Circuit
Court of Appeals for the Second Circuit said the following in its consideration of
legal issues which are strikingly apposite here:
In the Mackay Radio case. [304 U S 333] the Supreme Court held that
an employer whose employees have struck and who has committed no unfair
labor practice is not obliged to discontinue his business but may hire others
in the place of the strikers. The employer's obligation to reinstate in such
case extends only to such of the striking employees as have not been replaced
during the strike. a s
Thus, in the instant case, the polishers having gone on strike in a current
labor dispute, retained their status as employees for the purposes of the Act
and its protective provisions. As such they had a right to apply for and be
reinstated. If respondent was guilty of an unfair labor practice, this right
was unconditional. If it was guilty of no unfair labor practice, the right
existed, nevertheless, subject however to the condition that only such strikers
could seek and get reinstatement as had not already been replaced during
the strike.
Respondent, though it sought to do so. could not deny the right of rein-
statement to the striking pol skier- ^ Even if there had been no unfair labor
practice, respondent could not rein upon its alleged right, if any, to discharge
the strikers, because in the instant case, the strikers were discharged without
being-or before being-replaced
In oral argument counsel for the respondent acknowledged the persuasive
authority of decisions to the above effect. He argued, however, that in the
instant case what the employees sought to do was to force from the respondent
a concession which was outside the area of collective bargaining It was con-
ceded that had the employees gone on strike over the respondent's refusal to
grant a wage increase and had thereafter abandoned the strike, a refusal to
reinstate because of concerted activities, the jobs being available, would be a
violation of the law. However, it was urged that where employees went on
strike to force the respondent to give up its right to have a unit question decided
by the Board, they were forcing determination of a question which it was the
duty of the Board to decide. Counsel argued that "nobody should be permitted
to impose that kind of an ultimatum and block and frustrate the activities
of the Board under the Act."
In effect the respondent contends that even assuming the refusal to reinstate
was prompted by the employees' conduct. it was not an unlawful discrimination
because the concerted activities were illegal. The undersigned is of the opinion
that the conduct of the employees was not illegal. It may have been unjustified,
hasty and ill-considered, but it was not of such a nature as to deprive the em-
ployees of the protection of the Act, once they had decided to abandon their
efforts, and submit their dispute to the normal processes of adjudication.'
In short, the undersigned is of the opinion and finds that the respondent
by its conduct on the afternoon of December 12, in refusing to reinstate employees
1 Firth Carpet Co v. N. L. R B., 129 F. (2d) 633, 635.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to jobs they had vacated and which had not been filled, for the reason that they
had engaged in permissible concerted activities, discriminated in regard to their
hire and tenure of employment, discouraged membership in the Union, thereby
violating Section 8 (3) of the Act, and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above , occurring in
connection with the operations of the respondent described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic and commerce
among the several States , and tend to lead and have led to labor disputes
burdening and obstructing commerce and the free flow of commerce
V. THE REMEDY
Following the incident of December 12, 1946, when the employees left the
plant, the respondent had in its employ 4 workers who had been transferred
on or about December 10 from Universal Parts, Inc. These employees, unable
to keep production going at respondent's plant, were transferred back to Uni-
versal Parts, Inc. The respondent instead of attempting to resume operations
decided, because of the seasonal nature of its business, to take inventory and it
was not until January 6, 1947, that production was resumed by the transfer of
15 employees from Universal Parts, Inc., and the hiring of some 5 or 6 addi-
tional employees. The respondent conceded that if the walk-out of December 12
had not occurred, none of the respondent's employees would have been laid off
for the purpose of taking annual inventory which normally begins around
December 20. Thus, it is clear that the customary operations of the respondent's
business would have permitted the continuance in employment of those individuals
who were in its employ on December 12, 1946.
One of the employees named in the complaint is Milton Wilson, who was
ill and at home on December 12. He was informed on the afternoon of that
day by some of his friends what had happened at the plant. About a week
thereafter when Wilson had recovered, he returned to the plant to see if anybody
was at work. He went into the plant, observed only one man at work, turned
around and walked out. Wilson testified that he was not recalled and he assumed
that because other employees had been discharged, he, too, was discharged. Had
Wilson been present with the other employees on December 12, he would have
been denied reinstatement. Wilson is presently employed and although lie ex-
pressed some doubt as to whether he desired reinstatement, the undersigned
is of the opinion that he should be given an opportunity to decide that question
when an offer is made as provided in the recommendations herein.
One employee, William Jemison, was, at the time of the hearing, serving in the
United States Army. A separate recommendation will be made with respect
to reinstatement and back wages for Jemison.
Having found that the respondent has violated Section 8 (1) and (3) of the
Act, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action which the undersigned finds necessary to effectuate
the policies of the Act.
It has been found that the respondent has refused to reinstate a group of its
employees because of their lawful participation in concerted activities. Although
there is no evidence of any other conduct in violation of the Act and the re-
' AUTOPART MANUFACTURING COMPANY 473
spondent's president has stated that he is not opposed to unions, the respondent's
unlawful conduct, as found above, is of a serious nature. It will be recom-
mended, therefore, that the respondent be ordered to cease and desist from in
any manner infringing upon the rights of employees guaranteed by the Act'
Having found that the respondent refused to reinstate the employees listed
in "Appendix A," the undersigned will recommend that the respondent offer each
of them immediate and full reinstatement to their former or substantially equiv-
alent positions' without prejudice to their seniority or other rights and privi-
leges. The undersigned further recommends that the respondent make them
hole for any loss of pay they may have suffered by reason of the respondent's
discrimination against them by payment to each of them of a sum of money
equal to that which he normally would have earned from the date of the dis-
crimination to the date of offer of reinstatement or placement upon a preferential
list as described below, less his net earnings' during the said period. Rein-
statement shall be effected in the following manner:
The undersigned recommends that the respondent be required to displace em-
ployees by transfer or otherwise who have succeeded to the former position
of any of these employees. Further, all employees hired after December 12,
1946, for the same or substantially equivalent positions shall, if necessary to
provide employment to the persons to be offered reinstatement, be dismissed.
If, even after this is done, there is not, by reason of a reduction of force of em-
ployees needed, sufficient employment immediately available for the remaining
employees, including those to be offered reinstatement, all available positions
shall be distributed among such remaining employees, in accordance with the
respondent's usual method of reducing its forces, without discrimination against
any employee because of his union affiliation or activities, following a system of
seniority to such extent as has heretofore been applied in the conduct of the re-
spondent's business. Those employees remaining after such distribution, for
whom no employment is immediately available. shall be placed upon a preferential
ust prepared in accordance with the principles set forth in the previous sentence
and shall thereafter, in accordance with such list, be reemployed in their former
or substantially equivalent positions as such employment becomes available and
before other persons are hired for such work.
As found above Milton Wilson was ill and at home on December 12, 1946.
Hoffman conceded that but for the concerted activities of the employees on De-
cember 12, the plant would not have suspended operations. Therefore, the un-
dersigned will recommend that the respondent offer Wilson immediate and full
reinstatement to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and that respondent make him
whole for any loss of pay he may have suffered by reason of the respondent's
discrimination by payment to Wilson of a sum of money equal to that which
he normally would have earned from December 23, 1946, the date selected as
the approximate time when Wilson returned to the plant, to the date of the offer
of reinstatement less his net earnings during said period. Reinstatement for
2 N L R B v Pxpress Publishing Company, 372 U S 426 May Department Stores Co.
v N L. R B., 326 U S 376
3 In accordance with the Boni d's r onsistent interpretation of the term, the expression
`tormei or substantially equivalent position" is intended to mean "former position wherever
possible and if such Ito^,ilion is no longei in existence then to a substantially equivalent
position" See Matter of The Chase National Bank of the City of New Yotk, San Joan,
Puerto Rico, Branch 65 N. L. R B. 827.
4 See Matter of Crossett Lumber Co., 8 N L R B 440, 497-498
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson shall be in accordance with the principles set forth in the paragraph
above.
William Jemison, one of those refused reinstatement on December 12, subse-
quently enlisted in the United States Army The undersigned will recommend
that the respondent pay Jemison a sum of money equal to the amount he would
normally have earned as wages during the periods ( 1) between the date of the
respondent 's discrimination and the date of his enlistment and (2 ) between a
date five (5 ) days after a timely application for reinstatement and the date of
offer of reinstatement or placement upon a preferential list by the respondent.
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Automobile , Aircraft & Agricultural Implement Woikers of America,
UAW-CIO, is a labor organization within the meaning of Section 2 ( 5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees listed in "Appendix A" and thereby discouraging membership in the
United Automobile , Aircraft & Agricultural Implement Workers of America,
UAW-CIO, the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section S (3) of the Act.
3 By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law , the under-
signed recommends that the Autopart Manufacturing Company, Chicago, Illinois,
its officers , agents, successors , and assigns, shall:
1. Cease and desist from : .
(a) Discouraging membership in the United Automobile , Aircraft & Agricul-
tural Implement Workers of America , UAW-CIO, or in any other labor organi-
zation of its employees , by refusing to reinstate any of its employees or in any
other manner discriminating in regard to their hire and tenure of employment
and any terms and conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self -organization , to form labor organiza-
tions, to join or assist United Automobile , Aircraft & Agricultural Implement
Workers of America, UAW-CIO, or any other labor organization , to bargain
collectively through representatives of their own choosing and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid and
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Offer to the employees named in "Appendix A" immediate and full rein-
statement to their former or substantially equivalent positions , without preju-
dice to their seniority and other rights and privileges in the manner set forth
in the section entitled "The remedy" above, placing those employees for whom
AUTOPART MANUFACTURING COMPANY 475
employment is not immediately available upon a preferential list, in the manner
set forth in said section, and thereafter in said manner offer them employment
as it becomes available ;
(b) Make whole the employees listed in "Appendix A" for any loss of pay
they may have suffered by payment to each of them of an amount equal, to
that which he normally would have earned as wages during the period from
December 12, 1946, to the date of the respondent's offer of reinstatement or
placement upon a preferential list, in the manner set forth in the section en-
titled "The remedy," less net earnings during said period ;
(3) Make whole Milton Wilson during a period from December 23, 1946, to
the date of the respondent's offer of reinstatement or placement upon a prefer-
ential list, in the manner set forth in the section entitled "The remedy," less his
net earnings during said period ;
(d) Offer to William Jemison in accordance with the Selective Service Act,
after discharge from the United States Army, immediate and full reinstatement
to his former or substantially equivalent position, or to one which he is qualified
to fill, without prejudice to his seniority or other rights and privileges, or place-
ment upon a preferential list if such employment is not immediately available,
in the manner provided in "The remedy" ;
(e) Make whole William Jemison for any loss of pay he may have suffered by
reason of the respondent's discrimination against him by payment to him of a
sum of money equal to the amount he would normally have earned as wages dur-
ing the periods (1) between the date of the respondent' s unlawful discrimination
and the date of his enlistment into the United States Army and (2) between the
date five (5) days after his timely application for reinstatement and the date
of the offer of reinstatement, or placement upon a preferential list by the re-
spondent, less his net earnings during those periods ;
(f) Post throughout its plant in Chicago-, Illinois, copies of the notice attached
hereto marked "Appendix B." Copies of said notice, to be furnished by the
Regional Director for the Thirteenth Region, after being signed by the respond-
ent's representative shall be posted immediately by the respondent upon receipt
thereof and maintained by it for at least sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material;
(g) Notify the Regional Director for the Thirteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25 , D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director.
Proof of service on the other parties of all papers filed with the -Board shall
be promptly made as required by Section 203.65. As further provided in said
Section 203 39, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
MORTIMER RIEMER,
Trial E.Taminer.
Dated August 21, 1947.
APPENDIX A
Juanita Anderson Thomas J. Matthews James A. Walker
Dolphin Hamilton David Seigel Milton Wilson
William Jemison Henry Skwarczyk 'Marguerite Woods
Robert R. King Harry Tanner
Otto Major Frank F. Vavoptic
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist UNITED AUTOMOBILE, AIRCRAFT & AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination.
Juanita Anderson
Dolphin Hamilton
Robert R. King
Otto Major
Thomas J. Matthews
David Seigel
Henry Skwarczyk
Harry Tanner
Frank F. Vavoptic
James A. Walker
Milton Wilson
Marguerite Woods
William Jemison*
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
AUTOPART MANUFACTURING COMPANY 477
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalt of any such labor
organization.
AUTOPART MANUFACTURING COMPANY,
Employer.
By---------------------------------------
(Representative ) ( Title)
Dated------------------------
*NOTE: Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.