Binder Metal Products, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1662 (N.L.R.B. 1965)

1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Binder Metal Products, Inc. and International Union, Allied In-
dustrial Workers of America, Local 976, AFL-CIO and William
Blalock. Cases Nos. 21-CA-6314, 21-CA-6334, and 21-CA-6409.
September 27, 1965
DECISION AND ORDER
On June 3, 1965, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision. The General Counsel filed cross-exceptions, a brief in
support thereof, and an answering brief to Respondent's exceptions.
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 [Chairman McCulloch and Members Fanning and Jenkins].
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 and cross-exceptions, the brief,
and the entire record in this case, and hereby adopts the Trial Exam-
iner's findings, conclusions, and recommendations with the following
additions and modifications.
We find merit in the General Counsel's cross-exception as to the
failure of the Trial Examiner to make whole Aguirre, Blain, Garcia,
Lugo, Palafox, Ramirez, and Townsend from December 3, 1964, the
date of their unconditional application for reinstatement, to the dates
when the Respondent reinstated them. We see no justification for not
making them whole for their loss of earnings in the same manner and
to the same extent as was recommended by the Trial Examiner for
their co-strikers who applied with them for reinstatement on Decem-
ber 3, but were not reinstated or offered reinstatement until some time
after December 7 or 8.1 However, we find no merit in the General
Counsel's cross-exception concerning the Trial Examiner's failure to
recommend that Respondent extend a formal offer of reinstatement
and make whole Banuelos and Silva from the date of their uncondi-
IIn his discussion of the proper remedy to be afforded to this group of strikers and
to Walter \I. Chambers, who, though taken back to work on December 7, 1964, was not
reinstated to the job he held prior to the strike, the Trial Examiner stated that these
strikers should be made, whole "from the date of the Respondent's refusal of their ap-
plication for reinstatemnt." Inasmuch as these stinkers presented themselves for work
on December 3, we mask that date as the date of Respondent's refusal to reinstate them,
and we construe the Trial Examiner's statement quoted above as establishing Decem-
ber 3 as the beginning date of their backpay periods.
154 NLRB No. 135.
BINDER METAL PRODUCTS, INC. 1663
tional application to the date when Respondent shall extend such for-
mal offer of reinstatement. The Trial Examiner found on the basis of
Banuelos' and Silva's admissions that they were informed of the
Respondent's offer of reinstatement and that they elected not to return
to work. Accordingly, he limited their backpay to the dates that
Respondent's offers were transmitted to them. We agree with the Trial
Examiner's limitation of backpay, as, in these circumstances, an award
of backpay beyond the dates that Banuelos and Silva admittedly knew
of Respondent's offer of reinstatement and yet elected not to return to
work would be inequitable.
In the light of the foregoing, we shall amend the Order recom-
mended by the Trial Examiner to provide that Respondent shall :
Make whole Rodrigo Aguirre, Lewis Blain, Edmundo Garcia,
Antonio Lugo, Ray Palafox, Ramon Ramirez, and James Townsend,
by payment to each of a sum of money equal to that which he normally
would have earned in Respondent's employ from December 3, 1964,
the date of his unconditional application for reinstatement, to the date
when the Respondent reinstated him, less his net earnings, if any, dur-
ing such period. The backpay will be computed on a quarterly basis
in the manner set forth in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent per annum, as set forth in Isis
Plumbing cC Heating Co., 130 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Binder Metal Products, Inc.,
Los Angeles , California , its officers , agents, successors , and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Delete paragraph 2(b) thereof and substitute therefor the
following :
"(b) Offer Manuel A. Alvarez, William Blalock, Walter M. Cham-
bers , Miguel Gallegos , and Jesus M. Preciado immediate reinstate-
ment to the positions they held at the time they went on strike , without
prejudice to their seniority and other rights and privileges , and make
them whole, together with Rodrigo Aguirre, Lewis Blain , Edmundo
Garcia, Antonio Lugo, Ray Palafox, Ramon Ramirez, James Town-
send, Gregory Banuelos , and Juan Silva , for any loss of pay they may
have suffered as a result of the discrimination against them, in the
manner set forth in the section of the Trial Examiner 's Decision enti-
tled "The Remedy ," as modified herein."
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The notice shall be amended by deleting therefrom the paragraph
which begins "WE WILL offer . .." and substituting therefor the
following :
WE WILL offer immediate and full reinstatement to Manuel A.
Alvarez, William Blalock, Walter M. Chambers, Miguel Galle-
gos, and Jesus Preciado, and make them and Rodrigo Aguirre,
Lewis Blain, Edmundo Garcia, Antonio Lugo, Ray Palafox,
Ramon Ramirez, James Townsend, Gregory Banuelos, and Juan
Silva for any loss of pay they may have suffered because of the
discrimination against them.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented,' was heard before Trial Examiner
William E. Spencer in Los Angeles ,' California , on March 9 and 10, 1965, upon a
consolidated complaint of the General Counsel of the National Labor Relations
Board, the latter herein called the Board, dated February 17, 1965, and the duly
filed answer of Binder Metal Products , Inc., herein called the Respondent. The
complaint, based upon charges filed on November 20 and December 3, 1964, in
Cases Nos. 21-CA-6314 and 21-CA-6334, respectively, by International Union,
Allied Industrial Workers of America, Local 976, AFL-CIO, herein called the
Union, and a charge filed on January 19, 1965, in Case No. 21-CA-6409, by Wil-
liam Blalock, an individual, alleged in substance that the Respondent , in violation
of Section 8(a)(1) and ( 5) of the National Labor Relations Act, as amended,
herein called the Act, refused to bargain with the Union, the duly constituted bar-
gaining representative of its employees in an appropriate unit; in violation of Sec-
tion 8 ( a)(1) and (3) of the Act , denied reinstatement to certain striking employ-
ees, and discharged its employee William Blalock because of his concerted and
union activities ; and engaged in certain specified conduct violative of Section 8 (a) (1)
of the Act. Respondent in its answer denied having engaged in the said unfair labor
practices.
Upon the entire record in the case, my observation of the witnesses , and consid-
eration of the briefs filed with me by Respondent and the General Counsel, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation with its principal office and place of busi-
ness located at 2940 Ramon Boulevard, Los Angeles, California, where it is, and
has been at all times material herein, engaged in the manufacture of metal washers.
In the course and conduct of its business operations, Respondent annually sells
and ships goods valued in excess of $37,000 directly to customers located outside the
State of California.
In the course and conduct of its business operations, Respondent annually sells
and ships goods valued in excess of $30,000 to Alpert & Alpert, Inc., and Ducommun
Metals & Supply Co., each of which said enterprises is located within the State of
California.
Alpert & Alpert, Inc., is a nonretail enterprise engaged in the processing of scrap
metal. In the course and conduct of its business operations, Alpert & Alpert, Inc.,
annually sells and ships products valued in excess of $50,000 directly to customers
located outside the State of California.
Ducommun Metals & Supply Co. is a nonretail enterprise engaged in the distri-
bution of metals and industrial supplies. In the course and conduct of its business
operations, Ducommun Metal & Supply Co. annually sells and ships materials, goods,
and products valued in excess of $50,000 directly to customers located outside the
State of California, and annually purchases and receives goods valued in excess of
$50,000 directly from enterprises located outside the State of California.
1 The case was litigated on behalf of the Respondent by a labor relations consultant,
a nonlawyer.
BINDER METAL PRODUCTS, INC.
II. THE LABOR ORGANIZATION INVOLVED
1665
International Union, Allied Industrial Workers of America, Local 976, AFL-
CIO, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
On September 18, 1964, the Union was certified as bargaining representative of
Respondent's employees in the following appropriate unit: All production and main-
tenance employees, excluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
Negotiations on a contract were scheduled to begin on October 5. The Union was
to be represented at this meeting by Allen R. White, its secretary-treasurer, and
Walter Chambers and Ray Palafox, employee committeemen. Representing Respond-
ent and in charge of negotiations for Respondent was Arthur K. Lovatt, manager of
Lovatt Associates, a firm of labor relations consultants. Although on September 29
White had written Lovatt to confirm the committeemen status of Chambers and
Palafox and to request "that all necessary arrangements" be made "for them to attend
negotiations on October 5th at your office at 1:30 p.m.," Chambers and Palafox were
not released for purposes of attending this scheduled meeting. White appeared at
the appointed time and place and found no one at Lovatt's office and the door locked.
He called Lovatt's business telephone number, spoke to the answering service, and
left word to have Lovatt call him back. On the following Monday Lovatt called
White and explained that he was unable to reach the meeting because he was caught
in a traffic jam. He testified that he airived at his office only some 15 minutes late.
White testified that he remained at Lovatt's office site for some 20 to 25 minutes
before leaving. Two subsequent meetings were held at Lovatt's office on October 14
and 30. White and his two committeemen, properly released for these meetings, and
Lovatt as chief negotiator for Respondent, attended these bargaining sessions. At
the end of the second of these two meetings, a third meeting was scheduled to occur
at Lovatt's office at 2:30 p.m. on November 20.
White and his two employee committeemen arrived at Lovatt's office at the
appointed time but, as on the occasion of the first scheduled meeting, found no one
present and the office locked. As on the prior occasion White, on returning to his
office, attempted to reach Lovatt by phone, got his answering service, was informed
that the answerer had no knowledge of why Lovatt had failed to keep his appoint-
ment, but would relay a message to Lovatt. Later that same afternoon White filed
a charge with the Board alleging a refusal to bargain.
On the following day, a Saturday, a group of unit employees met with White and
Chambers who informed them on the course of bargaining and Respondent's failure
to meet for negotiations as scheduled. After discussion, the employees voted to
strike, and did strike on the following Tuesday. Out of some 28 or 30 unit employees,
19 engaged in the strike. Respondent's plant was picketed. Sometime during the
day Lovatt approached White on the picket line and asked him to get the men back
to work. White replied that there would first have to be an understanding about a
schedule for negotiations, and asked Lovatt why he had not met with the Union on
the previous Friday. Lovatt replied that J. R. Gates, one of his associates, who was
to represent the Respondent at the scheduled meeting, had been called out of the city
because of family illness. White asked for a further meeting to continue negotiations
on a contract and Lovatt suggested December 2 White wanted an earlier meeting
and Lovatt replied that possibly such a meeting could be set up for November 30,
but only if the picket line was withdrawn and the employees sent back to work.
Lovatt further told White that he should explain to the striking employees that they
could be replaced by other employees and that Respondent could secure a trucking
service that would cross the Union's picket line. Subsequently White met with the
employees, relayed to them what Lovatt had said to him, and they thereupon voted
to continue the strike.
On December 1, those employees still on strike-a few had already returned to
work-met and decided to terminate the strike. By letter dated December 1, White
advised the Respondent that 13 named strikers would return to work at their regular
starting time on December 3.2 On December 3 all the employees so named, with
2 The strikers named In White's letter were Rodrigo Aguirre, Manuel Alvarez, Gregory
Banuelos , Lewis Blain , William Blalock , Walter Chambers , Miguel Gallegos , Edmundo
Garcia, Antonio Lugy, Ray Palafox , Jesus Preciado , Ramon Ramirez, and Juan Silva.
206-446-66-vol. 151 106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exception of Lewis Blain , and one striking employee not named in White's letter,
James Townsend, appeared at Respondent's plant and through their spokesman,
Chambers, applied for reinstatement to Art Binder, Respondent's vice president.
Binder asked if the employees' representative, White, had discussed the matter with
Lovatt, and said, in effect, that none of the strikers would be hired back until the
matter had been cleared through Lovatt
Certain of the strikers were reinstated either the following week or later. Four
have not yet been returned to work.
B Conclusions on the refusal to bargain
Following the Union's certification, out of four scheduled meetings for negotia-
tions on a contract, Respondent, without prior notification, failed to attend two.
Lovatt's explanation of his failure to attend the first of these scheduled meetings does
not explain why he had made no allowance for being caught in a traffic jam in a city
where such delays are hardly phenomenal, made no effort to reach the Union by
phone in order to explain his late arrival, and made no arrangements with his associ-
ates to take over in case of his own absence. He maintained an office, a secretary,
and by his own account of his labor relations activities, had associates used inter-
changeably with himself in bargaining matters. His failure to notify his client in
advance of this meeting to release the Union's two committeemen for purposes of
attending the meeting further points up a somewhat cavalier attitude toward his
client's bargaining obligations. His explanation of circumstances attending Respond-
ent's second failure to attend a scheduled bargaining session is even less impressive.
Lovatt's associate, Gates, had attended one or more of the two bargaining sessions
with the Union held prior to November 20 and his substitution for Lovatt at the
November 20 meeting would not of itself necessarily point to a lack of good-faith
bargaining. It would seem, however, that inasmuch as Lovatt himself had acted as
Respondent's principal negotiator in the two bargaining sessions that were held, as
a matter of courtesy and prudence, he would have advised the Union in advance of
the November 20 meeting that he himself would not attend that meeting but that
Gates would substitute for him. He was unable to recall just when the substitution
was agreed upon but thought it may have been the day prior to the scheduled meeting.
He was also unable to state a time when Gates first learned of the emergency which
required his absence from the city, but admitted that he called his office at or shortly
after the noon hour on November 20 and that there were no messages from Gates
at that time. According to him the first he knew that Gates had not kept the bar-
gaining appointment with the Union was when he returned to his office later that
same afternoon and found a note from Gates saying that he had attempted to reach
Lovatt to tell him that he was called out of town because of a serious accident
involving a member of his family, and had also attempted to reach White but had
failed Lovatt testified that the note was destroyed and Gates, though presumably
available to testify, was not called as a witness There is therefore no corroboration
of Lovatt's testimony concerning the circumstances of Respondent's failure to meet
with the Union's negotiators on November 20, and I was not impressed with Lovatt's
testimony in the matter Lovatt's account of efforts to reach White to explain
Respondent's failure to attend the November 20 meeting was vague and uncertain.
White testified that it was not until Lovatt saw him on the picket line on November 24
that he learned from Lovatt why the Respondent failed to meet with the Union on
the scheduled date, and I credit him.
Apparently in extenuation of his failure promptly to notify the Union of the rea-
sons for Respondent's failure to meet with the Union as scheduled, Lovatt testified
that he did not regard his failure to meet as a "catastrophe" and while I, too, would
hesitate to apply a word of such descriptive power to Respondent's nonfeasance in
the matter, it appears to me that Lovatt took his obligations to bargain and to seek
an accord with the Union on a contract very lightly, too lightly in fact to comport
with what I consider good-faith bargaining But assuming without finding that the
two occasions on which Respondent failed to keep regularly scheduled bargaining
appointments with the Union were unavoidable, Lovatt's statement to White on the
picket line that Respondent would consent to a further bargaining meeting suggested
by White to occur on November 30, only if the pickets were withdrawn and the
strikers returned to work, demonstrates either ignorance on Lovatt's part as to what
constitutes fulfillment of bargaining obligations, or a wilful determination on his
part to breach those obligations. In either case the condition attached by Lovatt for
a November 30 bargaining session, constituted a refusal to bargain and I so find.
BINDER METAL PRODUCTS, INC. 1667
I further find that this patent refusal when related to an otherwise careless and
cavalier attitude demonstrated by Lovatt from the start of negotiations, reflects an
overall attitude on the part of Respondent that falls short of what is required for
the fulfillment of bargaining obligations.3 That Lovatt Associates represents many
employer clients in bargaining matters and that its commitment here may have been
regarded by it as a relatively minor undertaking, of course provides no justification
for a shirking of bargaining obligations in the instant case.
By refusing to bargain with the Union as the duly certified bargaining representa-
tives in the unit found above to be appropriate for purposes of collective bargaining,
the Respondent has violated Section 8(a)(1) and (5) of the Act.
C. The reinstatement of strikers
There is little doubt that the strike vote taken by the employees on the day fol-
lowing Respondent's failure to keep its bargaining appointment or to give the Union
any explanation for this failure, was based on their not unreasonable belief that the
Respondent was giving them the runaround in the negotiation of a contract and that
further bargaining would be futile unless some action was taken to force Respondent
to honor its bargaining commitments. I would find therefore that the strike was an
unfair labor practice strike from its inception. However, if on the contrary it be
thought that the employees jumped the gun on the Respondent, without allowing it
sufficient time to prove its good faith in bargaining, Lovatt's statement to White on
the first day of picketing that a further bargaining conference could be held on
November 30 only if the pickets were withdrawn and the employees returned to their
jobs, converted the strike into an unfair labor practice strike When White conveyed
Lovatt's ultimatum to the strikers a vote was taken and the decision was made to
prolong the strike. Whether the strike be regarded as an unfair labor practice strike
from its inception, as I would find, or converted into an unfair labor practice strike
because of unlawful conditions imposed by Lovatt for a prompt resumption of bar-
gaining, the rights of strikers to reinstatement upon unconditional application would
be the same, since it is not shown that at the time Lovatt issued his ultimatum any
striking employees had been replaced either by new hires or by transfer of nonstrikers.
White's letter of December 1, received by Respondent on December 2, represented
an unconditional demand for reinstatement, as did Chamber's oral request on behalf
of the strikers on December 3. It is not claimed that there was any misconduct on
the part of any striker such as would disqualify him for reinstatement, and there is
no showing that any job held by a striker at the time of the strike had been eliminated
prior to the requests for reinstatement. Considering that there was an intervening
weekend between December 3 and December 7 and 8, when the first reinstatements
were made, I am of the opinion that Respondent acted with reasonable dispatch in
offering reinstatement to the following striking employees- Aguirre, Blain, Chambers,
Garcia, Lugo, Palafox, Remirez, and Townsend. Chambers, however, was not rein-
stated to the job he held at the time he went on strike and since there is no showing
that the job had been eliminated at the time of his reinstatement, it will be recom-
mended that Respondent reinstate him to his old job. Elmira Machine & Specialty
Works, Inc., et al., 148 NLRB 1695; General Engineering, Inc. and Harvey Aluminum
(Incorporated), 147 NLRB 936. There was no pay differential between the two jobs
and therefore no backpay is involved with respect to him. Alvarez was reinstated on
January 15, 1965, but as in the case of Chambers, he was not reinstated to the job he
held at the time he went on strike and it will be recommended that such reinstatement
be offered him, together with backpay from December 7 to the date of offer of
reinstatement.
Blalock was called back to work on January 18, 1965. It was his credited testi-
mony that at the time he went on strike his regular job was that of a diesetter's helper,
but on his return to work he was assigned to work on a punch press. Shortly after
starting on the punch press Blalock was instructed by Shoo Foreman Morris Binder
to work in the yard. This job involved heavy lifting and Blalock complained that he
would be unable to perform it because of a back ailment. In an ensuing conversation
with Sam Binder, a vice president of Respondent, in which the said Binder reproved
Blalock for refusing to work in the yard, Blalock referred to the fact that he had not
s Except for testimony given by Lovatt toward the close of the hearing when called
to the witness stand by me, there would be only hearsay testimony on reasons now advanced
by the Respondent for its failure to attend two out of four regularly scheduled bargain-
ing sessions Apparently, therefore, Lovatt would consider such absences from the bar-
gaining table as constituting no lapse by the Respondent in the discharge of its bargaining
obligations.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been returned to the job he was performing at the time of the strike. During the same
conversation, according to Blalock's uncontradicted testimony, Sam Binder said that
if the employees had not "jumped the gun" by getting the Union in, business would
pick up and he could "take care of you guys"; that getting the Union in "messes every-
thing up," and it was "nonsense" to get the Union in. After some consultations among
the Binders, Blalock was discharged for the asserted reason of insubordination; i.e.,
refusing to work in the yard. Mike Carabello, who went on strike but returned to
work before the strike was terminated, was working on the punch press before the
strike but on the date of Blalock's reinstatement was working at Blalock's old job of
diesetter's helper. Morris Binder testified that he selected Blalock for yard duty
because the employee regularly assigned to that work was absent and Blalock was the
first available employee he encountered for filling in on that job. He testified that if
an employee was busy setting dies, as was Carabello, he would not take such an
employee away from his work for temporary yard duty. There was also testimony
that Blalock on numerous occasions preceding the strike had, without complaint,
lifted loads as heavy as he would encounter in yard work.
I find that Blalock was not reinstated to the job he held at the time he went on
strike, and the fact that the job had been filled by an employee who quit the strike
to return to work provides no justification for Respondent's failure to reinstate him to
his old job. Had he been reinstated to his old job, by Morris Binder's own testimony
it would have been unlikely that he would have been instructed to undertake yard
work on the occasion in question. Further, Sam Binder's references to the Union
in uncomplimentary terms in his conversation with Blalock preceding the latter's dis-
charge, indicate animus on the part of Respondent toward the Union and I am con-
vinced that some of this animus rubbed off on Blalock and constituted an element in
his assignment to yard work only a short time after his reinstatement, as well as the
discharge following his refusal to undertake such work. It will be recommended that
Respondent offer him reinstatement to the job he held at the time he went on strike
and backpay from December 7, 1964, to the date when such offer is communicated
to him.
Of the four strikers who applied for reinstatement on December 3 and have not
yet been reinstated, Banuelos, Gallegos, Preciado, and Silva, the last named admitted
that on December 15 his uncle, Antonio Lugo, who worked for the Respondent, con-
veyed the information to him that he could have his job back and that he declined
the offer inasmuch as he had taken another job. Under such circumstances it does
not appear to me to be required of Respondent that it seek out Silva and make him
a formal offer or reinstatement, it being apparent from Silva's testimony that he
would not have accepted such an offer had it been made after he had taken other
employment. The case of Banuelos is somewhat similar in that he admitted that he
"heard" Respondent was trying to get in touch with him "to go back to work." Art
Binder testified that he sent Lugo to Banuelos' last known address to tell him to come
back to work.
Inasmuch as Banuelos had several times changed his address without informing
Respondent of the changes, admittedly heard fiom a reliable source that he could have
his job back if he wanted it and made no effort thereafter to make contact with the
Respondent, it appears to me that Repsondent did all that was required of it in the
matter of Banuelos' reinstatement. Morris Binder testified that he sent an employee
Frank Montana, Gallegos' uncle, to ask Gallegos to come back to work but Gallegos
testified that he was at no time informed of such an offer. I credit his undisputed
testimony. Respondent having unlawfully refused Gallegos' timely and unconditional
application for reinstatement following the termination of the strike, was under a duty
to make every reasonable effort thereafter to reach Gallegos with a bona fide offer of
reinstatement and this it has failed to do. There is no evidence that such an offer
ever reached Gallegos, thus distinguishing his case from that of Silva and Banuelos,
or that Respondent took such steps as were required of it to see that the offer reached
him. Gallegos is therefore entitled to reinstatement and backpay.
Finally, there is the case of Preciado. Respondent admitted that it refused to rein-
state Preciado and advanced as its reason therefor that because of mental instability
he constituted an accident hazard. Admittedly he had been in Respondent's employ
as a yard worker for some 5 months prior to the strike and during that period was
not informed by the Respondent that his employee status was in question, either
because of mental instability or otherwise. I shall recommend the customary rein-
statement and backpay order with respect to him. Obviously, in his case as in the
case of all the others, a reinstatement order once effectuated will not interfere with or
curtail Respondent in the exercise of its normal right to layoff or discharge its employ-
ees for nondiscriminatory reasons.
BINDER METAL PRODUCTS, IN C. 1669
In conclusion, it is found that in refusing timely reinstatement to striking employees
as shown in detail above, and by its discriminatory discharge of Blalock, the Respond-
ent violated Section 8(a) (1) and (3) of the Act.
D. Interference, restraint, and coercion
Troy Vernado testified that on the first day of the strike Respondent's secretary-
treasurer, Mickey Shain, approached him and told him that if he came back to work
he would not lose certain benefits. Shain denied having said this. Vernado was so
hard of hearing that I had difficulty communicating with him when he was nearby on
the witness stand, and otherwise was not an impressive witness. I accept Sham's
denial. Morris Binder's statement to Blalock to the effect that the employees had
"messed" things up by getting the Union in and would thereby be handicapped in
obtaining benefits which would otherwise be theirs, constituted interference, restraint,
and coercion and I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with Respondent's operations described in section I, above, have a close, inti-
mate, and substantial relationship 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.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take such
affirmative action as is required to effectuate the policies of the Act. Accordingly, it
is recommended that the Respondent, upon request, bargain with the Union as the
exclusive representative of its employees in the unit found herein to be appropriate,
with respect to wages, hours, and other terms and conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agreement. It
is further recommended that the Respondent offer Manuel Alvarez, William Blalock,
Walter M. Chambers, Miguel Gallegos, and Jesus M. Preciado immediate reinstate-
ment to the positions they held at the time they went on strike, without prejudice to
their seniority and other rights and privileges, and make whole the said Alvarez,
Blalock, Chambers, Gallegos, Preciado, and also Gregory Banuelos, and Juan Silva,
by payment to each of a sum of money equal to that which he normally would have
earned in Respondent's employ from the date of Respondent's refusal of their uncon-
ditional application for reinstatement, to the date when the Respondent transmitted its
offer of reinstatement in the case of Banuelos and Silva, and as to the rest, to the date
when the Respondent shall make its offer of reinstatement, less their net earnings,
if any, during said period.4
CONCLUSIONS OF LAW
1. The Respondent is an Employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of Respondent, excluding office
clerical employees, professional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union at all times material herein was, and now is, the exclusive repre-
sentative of all employees in the aforesaid unit for the purposes of collective
bargaining.
5. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By refusing to reinstate certain of its striking employees as named in the section
above entitled "The Remedy" upon their unconditional application for reinstatement,
4 Respondent not having reinstated Blalock to the position he held prior to the strike,
and having discriminatorily discharged him on the day that he was brought back to
work on another job, it is considered that his reinstatement has never been effectuated
and that he stands in the same position as others to whom no offer of reinstatement has
been made. Alvarez and Chambers not having been reinstated to the jobs they held prior
to the strike, a new offer which shall include reinstatement to the said jobs is required.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent has discriminated in regard to their hire and tenure of employment,
thereby discouraging membership in the Union, and has thereby engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
7. By the aforesaid unfair labor practices and by threatening loss of employment
opportunities and benefits because of its employees' choice of a bargaining representa-
tive, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, Binder Metal Products,
Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Refusing to bargain collectively with the Union as the exclusive bargaining
representative of all its employees in the previotusly described appropriate unit.
(b) Discriminating against any of its employees in regard to their hire or other
tenure and condition of employment, thereby discouraging membership in the Union
or any other labor organization.
(c) Threatening its employees with loss of employment opportunities and benefits
because of their choice of a bargaining representative, and in any other manner inter-
fering with, restraining, or coercing its employees in the right to self-organization,
to form labor organizations, to join or assist the Union, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor organi-
zation as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act
(a) Upon request bargain collectively with the Union as the exclusive representa-
tive of its employees in the previously described appropriate unit, with respect to
rates of pay, wages, hours of work, and other conditions of employment and, if an
understanding is reached, embody such understanding in a signed agreement
(b) Offer William M Chambers, Manual Alvarez, William Blalock, Miguel
Gallegos, and Jesus M. Preciado immediate reinstatement to the positions they held
at the time they went on strike, without prejudice to their seniority and other rights
and privileges, and make them whole, together with Gregory Banuelos and Juan Silva,
for any loss of pay they may have suffered as a result of the discrimination against
them, in the manner set forth above in the section entitled "The Remedy."
(c) Notify the above-named employees, excepting Silva and Banuelos, 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 Mili-
tary Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
(d) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary for the computation of backpay which may be due under this Recom-
mended Order.
(e) Post at its plant at Los Angeles, California, copies of the attached notice
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Direc-
tor of Region 21, shall, after being signed by a representative of the Respondent, be
posted immediately upon receipt thereof, and be maintained for a period of 60 con-
secutive 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.
'In the event that 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, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
BINDER METAL PRODUCTS, INC. 1671
(f) Notify the Regional Director for Region 21, in writing, within 20 days from
the receipt of this Decision, what steps have been taken to comply herewith.C
It is further recommended that those allegations of the complaint not specifically
found to be violations of the Act be dismissed.
6In 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, Allied Industrial
Workers of America, Local 976, AFL-CIO, or any other labor organization of
our employees, by discharging any of our employees because of their concerted
or union activities or in any other manner discriminate in regard to their hire
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten any of our employees with loss of employment oppor-
tunities and benefits because of their choice of a bargaining representative, or
in any other manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL, upon request, bargain collectively with the above-named Union as
the exclusive representative of all our employees in the unit described below,
with respect to rates of pay, wages, hours of employment, or other conditions of
employment, and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All our production and maintenance employees, excluding office clerical
employees, professional employees, guards, and supervisors as defined in
the Act.
WE WILL offer immediate and full reinstatement to Manual Alvarez, William
Blalock, Walter M. Chambers, Miguel Gallegos, and Jesus Preciado, and make
them, and Gregory Banuelos and Juan Silva, whole for any loss of pay they may
have suffered because of the discrimination against them.
All of our employees are free to become or remain, or refrain from becoming or
remaining, members of the above named or any other labor organization. We will
not discriminate in regard to hire or tenure of employment, or any term or condition
of employment, against any employee because of membership in or activity on behalf
of any labor organization.
BINDER METAL PRODUCTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees, excepting Silva and Banuelos
to whom a reinstatement offer has already been made and refused, 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
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any ques-
tion concerning this notice or compliance with its provisions.