Commodore Watch Case Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1955

114 N.L.R.B. 1590 (N.L.R.B. 1955)

1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Supreme Court, and the Board has determined to seek certiorari
in the Goodman case, the Board, with all due deference to the opin-
ions of the ,aforementioned courts of appeals, adheres to its established
test until such time as the Supreme Court holds otherwise.
As all persons occupying positions identified as offices in the consti-
tutions of the Petitioner and the CIO have filed the required affidavits,
the Board is administratively satisfied that the Petitioner is in com-
pliance with the requirements of Section 9 (h) of the Act. The Board
is also administratively satisfied that the Petitioner is in compliance
with the requirements of Section 9 (f) and (g) of the Act. The
Employer's request that the Petitioner's compliance status be rede-
termined is therefore denied.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.5
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the agreement of the parties, all production
and maintenance employees at the Employer's Waltham, Massachu-
setts, plant, excluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
5 The Employer adduced evidence at the hearing apparently for the purpose of establish-
ing that the Dunleavy Organizing Committee is a labor organization within the meaning
of the Act. As the record establishes that this committee exists only for the purpose of
organizing the Employer 's employees on behalf of the Petitioner , and has none of the
attributes of a labor organization as defined in the Act, we find that this committee is
not a labor organization within the meaning of the Act. See Olin Mathieson Chemical
Corporation , 114 NLRB 948.
Commodore Watch Case Co., Inc. and International Jewelry
Workers Union , Local 1 , AFL-CIO.' Cases Nos. O-CA-3850 and
2-IBC-6711. December 30, 1955
DECISION, ORDER, AND DIRECTION
On March 31, 1955, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had.engaged in and was engaging in certain unfair labor
I The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Union accordingly.
114 NLRB No. 250.
COMMODORE WATCH CASE 'CO., INC. 1591
practices- and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief, and
the Respondent and the Union filed a joint motion to dismiss the
proceeding.
As grounds for the motion to dismiss the Respondent and the Union
urge an informal settlement in which the General Counsel did not
participate, which they contend renders the issues in this proceeding
moot. They describe the settlement as an adjustment of all pending
matters between them, including all matters involved in this proceed-
ing, and submit, as part of the adjustment, a copy of a 3-year col-
lective-bargaining contract they have executed. To the extent that
the Trial Examiner's findings and proposed remedy are inconsistent
with the provisions of their contract, they assert the findings and
recommendations are inapplicable to the Respondent's business situa-
tion and incapable of fulfillment. The Board has considered the
arguments offered in support of the motion and is of the opinion that
it would not effectuate the purposes of the Act to dismiss the com-
plaint and petition herein on the basis of the private settlement of
the differences between the Respondent and the Union.2 The motion
to dismis'S is denied.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations except as modified herein.
We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) and (1) by discharging its striking employees. Like
'the Trial Examiner, we are convinced that the Respondent did not
discharge the strikers because of business considerations. In reject-
ing the Respondent's economic contentions we note, particularly, that
the Respondent, before June 25, 1954, did not use any of the customary
business methods of terminating an employment relationship to sever
the strikers from its employ; that the advice which the Respondent
gave pickets to look for other employment was of an indefinite nature
and offered in an unsystematic and casual way; that the Respondent
offered no evidence as to the specific time and manner the alleged
business decision to sever the strikers' employment was made; and
that various facts, set out in the Intermediate Report, indicate that
See Section 10 (a) of 'the Act ; The Alliance Manufacturing Company, 101 NLRB 112;
Precast Slab and Tile Company , 88 NLRB 1237, National Biscuit Company, 83 NLRB
79; cf. Allis - Chalmers Manufacturing Company, 72 NLRB 855.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent will continue in business and have need of employees
even though it changes the type product it made before the strike.
Our conclusion as to the Respondent's purpose in discharging its
employees, however, differs in part from that of the Trial Examiner.
He concluded that the purpose of the discharges was to prevent the
strikers from voting in the pending Board election. While the Re-
spondent no doubt also anticipated the disenfranchisement of the
strikers as a result of the discharges, we are persuaded by all the facts
that its basic impelling reason for discharging them was their partici-
pation in a strike for recognition. The Respondent had insisted from
the beginning of its dealings with the Union that the Union establish
its representative status by a certification proceeding, indicating be-
fore the strike that the Respondent would agree to a consent election.
The Union, however, refused to comply with the Respondent's wishes
and sought to win recognition by exerting its economic strength rather
than by resorting to the processes of the, Board. The Respondent
enunciates its position concerning this situation in its exceptions to
the Trial Examiner's finding of ,an unfair labor practice. The Re-
spondent there states :
. .. The Employer took the position that he had a right to dis-
charge employees who were on strike. . . . The facts are, that
the Employer at no time refused recognition to the Union if rec-
ognition was awarded following an orderly election held by the
National Labor Relations Board. This the Union rejected and
only petitioned for such an election after it had disrupted the
Employer's business by a long and costly strike, without com-
pelling the Employer to submit to its will. It is submitted, that
the Examiner has arrived at the position that the Employer by
insisting upon an election under the auspices of the Labor Board
has violated the National Labor Relations Act. In effect, the
Examiner has found that the Employer's request for an orderly
election and his subsequent resistance to strike methods was vio-
lative of Section 8 (a) (3) of the Act as tending to discourage
membership in the Union. [Emphasis supplied.]
The Respondent's position is without merit. Inasmuch as the strike
by its employees for recognition constituted protected concerted ae-
tivity,3 the Respondent's discharge of the employees for engaging in
the strike was unlawful.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
S See New Hyden Coal Company , 108 NLRB 1145 , 1161; Auto part Manufacturing Com-
pany, 78 NLRB 461, 471.
COMMODORE WATCH CASE CO., INC. 1593
Board hereby orders that the Respondent, Commodore Watch Case•
Co., Inc., Long Island City, New York, its officers, agents, successors,.
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the International Jewelry Work-
ers Union, Local 1, AFL-CIO, or any other labor organization of its
employees, by discriminating in regard to hire or tenure of employ-
ment of its employees.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist the International Jewelry Workers Union, Local
1, AFL-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 or protection, or to refrain from engaging in such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as authorized in
-Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) In the manner described in the section of the Intermediate
Report entitled "The Remedy," offer to the employees named- in Ap-
pendix A, attached hereto, reinstatement to their former or substan-
tially equivalent positions and make them whole for any loss of earn-
ings suffered as a result of the discrimination against them.
(b) Post at its plant in Long Island City, New York, copies of the
notice attached hereto marked "Appendix A." 4 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(d) Notify the Regional Director for the Second Region in writing,
' In the event that this Order is enforced by a decree of a United States' Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1.594 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
[The Board directed that the Regional Director for the Second
-Region shall, pursuant to the Rules and Regulations of the board,
witluin ten (10) days from the date of -this Direction, open and count
the challenged ballots in Case No. 2-RC-6711, and serve upon the
parties a tally of ballots.]
MEMBER RODGERS took no part in the consideration of the above
Decision, Order, and Direction.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 discourage membership in the International
Jewelry Workers Union, Local 1, AFL-CIO, or in any other labor
organization of our employees, by discriminating in any manner
in regard to hire, tenure, or any term or condition of employment.
WE WILL, in the manner set forth in the Decision and Order of
the National Labor Relations Board, offer to the employees named
below reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of earnings as a result of the discrimination against them.
Leonides Zamot
Marie Willi ams
Esperanza Toscado
Peter Surez
Mary Squaire
Sol Rubenstein
Ada Robinson
Francis Rivera
Mary H. Pitts
Isabel V. Perez
.Laura Palomino
Jerry McIntosh
George McGrade
William C. Mairs
Paul Katz
Ann Harvey
Margaret B. Harris
Christine Gilmore
Martin J. Gaeta
Edward Flanagan
Frederico DelPilar
Alfonso Caucci
Gloria E. Craigwell
Josephine Cervone
Irving Candel
Vincent Calo
Eulalia Branch
Jessie Mae Braddock
Harry Barron
John Zervas, Jr.
Hyman Penn
George E. Pender
Raymond Komorsky
Max Greenberg
Joseph Degan
Murray Davis
COMMODORE WATCH CASE CO., INC. 1595
WE WILL NOT in any manner' interfere wit'h restrain; oT'coerce
our employees in the exercise of their right to- self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or
mutual aid or protection, or to refrain from engaging in any or
all such activities except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment inconformity with Section'
8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization except to
the extent above stated.
COMMODORE WATCH CASE CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by International Jewelry Workers Union , Local 1, AFL,
herein called the Union , the General Counsel of the National Labor Relations Board,
by the Regional Director for the Second Region (New York, New York), issued
his complaint dated October 5, 1954, against Commodore Watch Case Co., Inc.,
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 (a) (3) and ( 1) and Section 2 (6) and (7) of the National Labor Relations' Act,
•61 Stat . 136, herein called the Act.' By an order dated November 4, 1954, the
Regional Director ordered that a hearing be held concerning challenges as to ballots
'cast in a representation election in Case No. 2-RC-6711 conducted by the Board
-among the Respondent's employees on July 12, 1954 . The Regional Director also
'ordered that a hearing as to the challenged ballots be consolidated'with the unfair
labor ,practice hearing in Case No. 2-CA-3850 because of the identity of issues in
those cases , and simultaneously issued a notice of hearing in the consolidated cases.
Copies of the complaint , the charge , the order consolidating , and the notice of
hearing were duly served on the parties.
With respect to the unfair labor practices the complaint alleges that on June 25,
1954, the Respondent discharged its employees who were then on strike because of
their union activities and concerted activities protected by the Act, and that it thereby
violated Section 8 (a) (3) and ( 1) of the Act. The Respondent 's answer admits
-that it discharged the employees but denies that it thereby violated the Act. The
answer also affirmatively asserts that the complaint fails to set out a statutory viola-
tion and requests that it be dismissed.
Pursuant to notice , a consolidated hearing was held at New York City on Novem-
ber 8 and 9, 1954, before Thomas N. Kessel , the Trial Examiner duly designated by
the Chief Trial Examiner . The General Counsel, the Respondent , and the Union
were represented by counsel . Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence was afforded all parties . The Re-
spondent filed a brief after the hearing which has been carefully considered. By
letter to the Board dated February 2, 1955, the Union 's president advised that the
dispute with the Respondent had been amicably settled and requested permission
to withdraw the charge filed in Case No. 2-CA-3850. Upon referral thereof to
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner, counsel for the parties hereto and the Regional Director were
notified of the request for dismissal of the complaint, and that such- request would
not be granted without submission of_ an appropriate settlement stipulation signed
by the parties and approved by the Regional Director. The Trial Examiner further
advised that unless the stipulation was received by him in required form and sub-
stance by March 7, 1955, a report would be issued in these proceedings. The re-
quired stipulation has not been received.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDENT
As alleged by the complaint and admitted by the answer, the Respondent is a
New York corporation with principal office and place of business in Long Island
City, New York, where it manufactures, sells, and distributes watch cases and re-
lated products. - In the year preceding issuance of the complaint the Respondent
manufactured products valued in excess of $250,000 of which more than 20 percent
was transported in interstate commerce to other States. It is found therefrom that
the Respondent is engaged in commerce within the meaning of the Act and that the
assertion of jurisdiction over its operations will effectuate the policies of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Jewelry Workers Union, Local 1; AFL, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
These are the relevant facts concerning the Respondent's alleged unlawful con-
duct. At a January 18, 1954, meeting a majority of the Respondent's employees
expressed their desire to be represented in collective bargaining by the Union, which
on January 19, 1954, requested the Respondent to recognize it as the representative
of its employees and to negotiate a labor contract. In the ensuing days the Re-
spondent's officials took the position that recognition would be accorded the Union
only if it were certified as exclusive bargaining representative pursuant to a Board-
conducted election. The Union objected to this procedure because of the time it
would involve and instead proposed an immediate election to be conducted by the
parties in the plant. The Respondent rejected this proposal. On February 4, 1954,
all the Respondent's employees struck following a strike vote taken at a meeting of
the Union. The strike was still in progress when the hearing herein was held. None
of the strikers have been replaced by the employment of new employees to fill
their jobs.
On March 31, 1954, the Union filed a petition with the Board for certification as
representative of the Respondent's employees. Pursuant thereto a prehearing con-
ference was held on April 13, 1954, at the Board's New York Regional Office under
the auspices of Board Field Examiner Morris S. Miller. Representatives were pres-
ent for the Union and the Respondent. Consent to an election was refused by the
Respondent on the ground that the strikers were no longer its employees. Leo
Kimmel, the Respondent's president, testified that in the month or two after the
beginning of the strike he had spoken to various strikers on the picket line and had
told them they should look for other employment. This was equated by Kimmel to
the discharge of Respondent's employees. At the formal representation hearing
conducted by the Board, the Respondent continued to oppose an election on the
ground that all of its employees had been discharged. In its Decision and Direction
of Election issued on June 18, 1954 (not reported in printed volumes of Board De-
cisions and Orders), the Board directed an election within 30 days among the Re-
spondent's production and maintenance employees and disposed of the Respondent's
contention that the strikers were no longer its employees by the following footnote:
I The Employer urges that it has terminated the employment of all the em-
ployees on strike by notifying the Petitioner of the discharge at a pre-hearing
conference concerning this petition, on or about April 14, 1954, and by per-
sonally communicating that information to those employees seen on the picket
line by officers of the Employer. The Hearing Officer rejected the Employer's
offer of proof to show that "many of the employees who were actually on strike,.
were told that they were not going to be re-employed, and that they should
look for other jobs, and that their work with this shop was terminated." The
COMMODORE WATCH CASE CO., INC. 1597
Employer 's offer was not sufficiently specific and the proof offered would not be
adequate to determine the individual strikers who received the alleged notice.
We find the record inadequate to determine whether or not there was in fact
a discharge of all these employees or a portion of them. Hence, we shall per-
mit all those employees employed on January 4, 1954, to vote subject to
challenge.
On June 25, 1954, the Respondent mailed each of its employees the following
notice:
A question has apparently been raised as to whether or not you have been
formally notified of your discharge by this Company.
You are hereby formally notified that you have been discharged and are
not an employee of this Company.
This is the conduct specifically alleged by the General Counsel as violative of Sec-
tion 8 (a) (3) and (1) of the Act.
To explain the June 25 notices, President Kimmel testified that they had been
sent "on recommendation of the Board" in order to make the discharges of the em-
ployees "more official." It is obvious from this record that neither the Board nor its
agents had ever "recommended" that the Respondent discharge its employees, and
it is highly doubtful that Kimmel intended to convey the literal meaning of his
testimony. From a consideration of his entire testimony I am satisfied that Kimmel
meant to say that the purpose of the June 25 notices was to supply the proof of
termination of employment of Respondent's employees which the Board had noted
was lacking in the record of the representation proceeding.
In justification for the June 25 discharges the Respondent's brief emphasizes testi-
mony by Kimmel to the effect that the strike had seriously disrupted the Respondent's
seasonal and highly competitive business . In elaboration of this argument it was
shown that the strike had forced the Respondent out of the seasonal market which
customarily accelerates in March of each year. For this reason and because of the
adverse effect of foreign imports of inexpensive watch cases on Respondent 's busi-
ness in this line the Respondent 's future became uncertain after the strike had
endured a month or two. It was then, as noted above, that Kimmel had suggested
to various strikers that they should look for other employment. In substance, the
Respondent argues from these circumstances that it had before June 25, 1954, law-
fully discharged its employees or that their jobs had ended for economic reasons,
and that the June 25 notices of discharge to the employees was, in effect, merely
official confirmation of their earlier terminations. The Respondent further argues
that the General Counsel has failed to prove the complaint allegation of unlawful
refusal to reinstate the discharged employees . In this respect the point is made that
there could not have been such refusal,as there were never applications made by the
strikers for reinstatement. Moreover, because the strikers' jobs had vanished as a
result of the aforementioned business uncertainties and no reinstatement was there-
fore possible, the Respondent should not be held a statutory violator. Finally, Re-
spondent's brief asserts that the strike was needlessly called by the Union which
chose by economic force to obtain recognition as bargaining representative rather
than submit to the orderly processes of a Board election. The Respondent contends
it therefore had a "right" to discharge its employees for engaging in such a strike.
All these arguments lack merit. The employment of the striking employees was
not terminated before June 25, 1954. Clearly this was not accomplished by Kimmel's
ambiguous suggestions to various unnamed strikers on the picket line that they should
look for other jobs, nor did it result from the economic factors related in Kimmel's
testimony. Neither the strike nor the other economic conditions which affected the
Respondent's business warrant a conclusion that continuation by the Respondent of
its business in its old line or in the production of other products had become a
matter of such great doubt and uncertainty as to remove an expectancy that there
would be employment for the strikers if the strike were to end and they then desired
reinstatement. Although Kimmel testified that if the Respondent were to resume
operations it would not continue production of inexpensive watch cases as in the past,
but would manufacture a more expensive type of waterproof watch case entailing
the use of new machinery and employee skills, it is not established by this record
that the development of this contingency would wipe out the strikers' jobs. Even
under the new process the machines formerly used would be retained, thus assuring
need for an indeterminate percentage of the striking employees at their former
duties without additional training. In addition, it appears from Kimmel's testimony
that about 10 percent of the strikers are skilled in the use of several machines,
apparently including some of those which would be involved in the production. of
i
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the' new,type watch cases. I have noted that , the only new type machines which'the
Respondent would add to its processes are precision lathes and heat induction ma-
' chines which seemingly involve spot welding operations . Kimmel conceded that
among the strikers are "tool makers, like " who have the requisite skills for the con-
templated new operations . Undoubtedly , he had in mind that the toolmakers could
operate precision lathes. While he gave no indication whether the induction heat
machines call for special skills in their operation requiring extensive training or
experience such as that of a craftsman , it seems likely , because spot welding appears
to be involved , that only little training is needed in the development of productive
operators . Kimmel also admitted that the Respondent has been engaged in the
limited production of waterproof watch cases since 1952 and that some of the em-
ployees had been doing this work before the strike. In the circumstances , I am not
convinced that the contemplated changeover to a new manufacturing process had the
effect before June 25, 1954 , or since then, of wiping out the jobs of Respondent's
employees.
Moreover , Kimmel 's testimony did not give the impression that by April or May
1954, or even since then , the effect of the strike was so ruinous that there was scant
hope for revitalization of the business and that its end was probable. On the con-
trary, while revealing the difficulties frequently faced by an employer during a costly
strike, his testimony reflected the Respondent 's ability to continue operations in the
face of these adverse conditions and its intention to remain in business after the
strike. While the strike had drastically curtailed Respondent's normal operations,
production did not altogether cease. The Respondent 's six stockholders were them-
selves skilled workmen who carried on its manufacturing processes . In addition,
employees of the Tempest Mfg. Co., a producer of watch crowns located in the same
building with the Respondent , performed certain operations on the Respondent's
machines as they had done before the strike and the Respondent , as before , continued
to perform certain operations for Tempest .' Together with these indicia pointing to
continuation of the business are the added factors that Respondent did not sell or
otherwise dispose of any of its machinery or equipment , or give up its lease, or take
any other step consistent with plans to discontinue its business . Nor does it appear
'that any concrete thought was given to such action As to future prospects, although
Kimmel testified that he is losing customers and does not know what he is going to
do about new customers in the future , he indicated that he "always can get cus-
-tomers." It appears that Respondent has failed to take orders from customers be-
cause of its inability to fill them during the strike , but that if the strike were to end
orders could be obtained.
I am satisfied that the Respondent sent the June 25, 1954 , discharge letters to its
employees not to confirm terminations which had for lawful economic reasons
occurred before then , but that the purpose of these discharges was to preclude voting
by its employees in the pending Board election . In reaching this conclusion I have
relied upon the foregoing findings that nothing had occurred before June 25, 1954,
from which it may be determined that the employment of Respondent 's employees
had been terminated , the fact that the Respondent had taken the position in the pre-
hearing conference and formal hearing in the representation proceeding that its
employees were no longer employed by it and hence were ineligible to vote in a
representation election , and the timing of the discharge letters which were sent di-
rectly after the Board 's Decision and Direction of Election noting the lack of proof
to support the Respondent 's position , and before the election was held. By dis-
charging these employees to prevent the exercise by them of their franchise in a
Board election the Respondent interfered with the exercise of rights guaranteed to
employees by Section 7 of the Act in violation of Section 8 (a) (1) of the Act 2
Because in my view this conduct also tended to discourage membership in the Union
it also infringed Section 8 (a) (3) of the Act . For purposes of this proceeding it
is immaterial whether the Respondent's conduct be regarded as violative of either
Section 8 ( a) (1) or ( 3) of the Act for the remedy to cure its effect is the same in
either event.
As to the Respondent 's other defenses , it is sufficient merely to state that the Act
was violated by the unlawful discharge of the strikers irrespective of the General
Counsel 's failure to prove a subsequent refusal by the Respondent to reinstate them
upon application . The circumstances relative to the continuation of the strike by the
discharged employees and failure by them to apply for reinstatement , or whether
there have been or are jobs to which the employees can be reinstated, are significant
in this case only as pertains to the remedy herein recommended . With respect to
The record indicates that the Respondent has some interest in Tempest
Vail Manufacturing Company, 61 NLRB 181, 183 , enfd 168 F 2d 664 (C. A. 7)
COMMODORE WATCH CASE CO., INC. 1599
the Respondent's claimed "right" to discharge its employees because they struck for
recognition rather than submit to a Board election, it is fundamental that Section
8 (a) (3) forbids the discharge of employees for engaging in concerted activities of
this sort and such activity is protected even where it produces economic results
detrimental to an employer's interests.
IV. THE CHALLENGED BALLOTS
At the representation election held by the Board on July 12, 1954, among the
Respondent's employees, 30 ballots were cast all of which were challenged and im-
pounded without being opened and tallied. Twenty-four ballots were challenged
on the ground that the voting employees had been discharged before the election and
hence were ineligible to vote. Six ballots were challenged because they were cast
by-employees whose names did not appear on the list of employees eligible to vote
in the election. These latter six employees had been temporarily laid off by the
Respondent in January 1954 before the strike began because of the normal seasonal
decline in the Respondent's operations. They had been laid off with the understand-
ing that they would be reemployed in the expected acceleration of operations in the
next season beginning at the end of March 1954.
Besides contending that its employees were not eligible to vote because they were
discharged before the election, the Respondent asserts that because the em-
ployees struck for recognition rather than submit to a Board election and because
the strike disrupted its business, they had no "right" to vote in the representation
election. The fact that the strikers did not apply for reinstatement before or after
they were discharged on June 25, 1954, is offered as another reason for their in-
eligibility as voters. Finally, the Respondent argues that the strikers had no reason-
able expectancy of reemployment when they were discharged on June 25, 1954, and
for this reason also were ineligible to vote in the election.
Substantially these are the same reasons presented by the Respondent in de-
fending the unfair labor practices alleged herein. As related above I have found
that the Respondent's employees had not been discharged before June 25, 1954,
either as the result of economic factors affecting the Respondent's business or by
the statements to the strikers on the picket line by President Kimmel. Although
the June 25, 1954, letters to these employees were unquestionably discharges, such
action, because it was violative of the Act, did not deprive them of their status as
employees and hence did not affect their voting eligibility.3 The essential element
in determining an employee's eligibility to vote in a representation election is his
status on the eligibility payroll date and on the date of the election 4 The Board's
eligibility requirements thus appear clearly to have been met by the 24 voters whose
names appear on the eligibility payroll and who retained their employee status on
the date of the election. Their eligibility and right to vote was not affected be-
cause they were engaged in an economic strike to force recognition of their Union or
because the strike resulted in hardship to the Respondent. So long as they were not
permanently replaced before the election by the hire of other employees to fill their
jobs, a self-help device to which the Respondent could have resorted to protect its
business, the strikers retained their right to vote in the election, and this right is-un-
affected by the fact that they did not, before or after they were unlawfully discharged
on June 25, 1954, apply for reinstatement. Nor is there merit to the contention that
these employees had no reasonable expectancy of employment by the Respondent
at the time of the election, for as related above such expectancy did in fact exist.
Accordingly, I find that the 24 employees whose names appeared on the eligibility
list for the election and who cast ballots therein were eligible voters and recommend
that their ballots be opened and counted.
As to the six employees whose ballots were challenged because their names did not
appear on the eligibility payroll for the election, the record shows that when they
were laid off in January 1954 they had an understanding with the Respondent that
they would be recalled to work in about March 1954. But for the strike they would
have been recalled at about that time. In determining the voting eligibility of em-
ployees in laid-off status the Board is concerned with the reasonable expectation
of their reemployment in the near future on the date of the election.5 The same
factors explicated above denoting the expectancy of employment upon termina-
tion of the strike of the Respondent's other employees lead to a conclusion that
such expectancy existed for the laid-off employees on the date of the election. The
assumption is reasonable, absent contrary evidence, that upon termination of the
s Keeshin Poultry Company, 97 NLRB 467 ; Stationers Corporation, 97 NLRB 601.
4 Gulf States Asphalt Company, 106 NLRB,1212_
s Sangamo Electric Coin pany, 110 NLRB 1.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike and resumption of normal seasonal operations by the Respondent the laid-off
employees would be recalled in accordance with their understanding before the
strike. I find, despite the noninclusion of their names on the eligibility payroll,
that the six laid-off employees were eligible to vote and accordingly recommend
that their ballots be opened and counted.
V. 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 its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent unlawfully discharged its entire complement
of employees on June 25, 1954, in violation of Section 8 (a) (3) and (1) of the
Act. In order to effectuate the policies of the Act it will be recommended, as herein-
after provided, that the Respondent be ordered to reinstate the discharged employees
with back pay.
Ordinarily, discriminatorily discharged employees are awarded back pay from
the date of their discharges to the date when a valid reinstatement offer is made
to them. Here, the discharged employees were engaged in a strike before and
after the date of the discrimination against them and, so far as this record shows,
the strike by all of these employees was still in progress during the hearing. The
Board's practice is not to award back pay to employees discriminatorily discharged
while on strike on the theory that until it appears that the employees who desire
employment have given up the strike it cannot be established that the loss of pay
was conclusively attributable to the employer's conduct.6 Accordingly, as it cannot
at this time be determined when or if the strike has been abandoned it is recommended
that back pay shall be ordered paid by the Respondent to the discharged employees
only from such date as they abandon or may have abandoned the strike to the date
when the Respondent has offered them reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and privileges.
While the record shows that as of the time of the hearing the Respondent had
hired no new employees as replacements for the discharged employees, and no
likelihood appears that such replacements would be hired before the strike was termi-
nated, a possibility exists that such replacements may have been hired before issuance
of this Intermediate Report and Recommended Order. I therefore recommend that
the Respondent shall, after abandonment of the strike, immediately reinstate in the
manner aforesaid all of the discharged employees who request reinstatement, dis-
missing if necessary any employees hired after June 25, 1954, to replace the dis-
charged employees. If, after such dismissal, there are insufficient positions remain-
ing for all of these employees, the available positions shall be distributed among
them on the basis of seniority or such other nondiscriminatory practice as may have
heretofore been applied in connection with a reduction in force in the Respondent's
business. Those employees for whom no employment is immediately available after
such distribution, shall be placed on a preferential hiring list with priority determined
among them by such seniority or other nondiscriminatory system previously applied
in the Respondent's business, and thereafter, in accordance with such list, shall be
offered reinstatement as positions become available and before other persons are
hired for such work. As it further appears that the Respondent, for economic
reasons unrelated to its unlawful conduct, may be unable immediately to resume oper-
ation of its business upon termination of the strike, or that in resuming its business
may change its operations in such manner that it cannot immediately provide em-
ployment for all of the employees unlawfully discharged, the foregoing recommenda-
tions with respect to reinstatement and payment of back pay to these employees
are dependent upon the resumption of the Respondent's business and the existence
of jobs consistent with the economical operation of its business which the discharged
employees are qualified to fill. Thus, if upon termination of the strike the Re-
spondent for valid economic reasons is delayed in resuming operations, back pay
shall begin to accrue from the date of resumption of operations to the date of a valid
$National Gas Company, 99 NLRB 273; Globe Wireless, Ltd., 88 NLRB 1262, enfd., as
mod. 193 F. 2d 748 (C. A. 9).
COMMODORE WATCH CASE CO., INC. 1601
offer of reinstatement to those employees for whom there are available jobs. Dis-
tribution of the available jobs shall be made in accordance with such seniority or
other nondiscriminatory practices as may have been applied in the past in the Re-
spondent's business, and those employees for whom jobs may not be available shall
be placed on a preferential hiring list with priority determined in accordance with
the same nondiscriminatory practice and, thereafter, in accordance with such list,
shall be offered reinstatement as positions become available and before other persons
are hired for such work.
Loss of earnings, which any of the discharged employees may have suffered or
may suffer because of the discrimination against them, shall be computed in ac-
cordance with the Board's formula in F. W. Woolworth Company, 90 NLRB 289;
N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
Because the Respondent by its conduct violated fundamental employee rights
guaranteed by Section 7 of the Act, the commission of other unfair labor practices
may be reasonably anticipated. It will therefore be recommended that the Re-
spondent cease and desist from in any manner infringing upon the rights guaranteed
its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Jewelry Workers Union, Local 1, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of the
employees listed in schedule A attached to the complaint in this proceeding, thereby
discouraging the free exercise of rights guaranteed by Section 7 of the Act and dis-
couraging membership in and activities for the above-mentioned labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
3. By interfering with the exercise of rights,guaranteed its employees by Section
7 of the Act, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
C