Duncan Foundry and Machine Works, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1976

222 N.L.R.B. 768 (N.L.R.B. 1976)

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duncan Foundry and Machine Works, Inc. and Unit-
ed Steelworkers of America, AFL-CIO. Case
14-CA-4608
February 6, 1976
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 13, 1974, and- September 18, 1975, re-
spectively, Administrative Law Judge Max Rosen-
berg issued the attached Supplemental Decision and
Second Supplemental Decision in this proceeding.
Thereafter, Respondent filed limited exceptions and
a supporting brief, and Counsel for the Acting Gen-
eral Counsel, hereafter called General Counsel, filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 'Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Second Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommendations as
modified herein.
1. The Administrative Law Judge concluded, and
we agree, that the record supports a finding that
claimant Al D. Bond was a striking employee of Re-
spondent on September 13, 1967, the critical date for
establishing vacation pay eligibility, and hence is en-
titled to vacation pay in accordance with the back-
pay specification. However, because Bond failed to
respond to the General Counsel's subpena and be-
cause more than a year had elapsed since the is-
suance of the Administrative Law Judge's first
Supplemental Decision in this matter,' the
Administrative Law Judge directed that Re-
spondent's obligation to pay vacation pay to Bond
be discharged should the Regional Director be un-
able to summon Bond within 2 weeks of the date of
the Second Supplemental Decision.
We find no compelling reason under the circum-
stances of this case to adopt the 2-week limitation
recommended by the Administrative Law Judge. Ac-
cordingly, we shall follow our usual practice 2 and
' By our order (May 13, 1974; unpublished) remanding this matter to the
Administrative Law Judge we directed, inter alia, that he determine the
employee status and eligibility of Bond and other nonvoting claimants with
reference to their status as employees of Respondent on September 13, 1967
2 Brown and Root, Inc., et al., 132 NLRB 486 (1961), affd 311 F.2d 447
(C.A. 8, 1963).
order that the sum of vacation pay due Al D.-Bond
be paid to the Regional-Director for Region 14 to be
held in escrow for a period not to exceed 1 year from
the date of this Supplemental Decision and Order.
2. Contrary to the Administrative Law-Judge, we
conclude that claimant Carl Patton is entitled to va-
cation pay in accordance with the backpay specifica-
tion. Patton, who picketed for 6 months after the
strike began in January 1967, testified that he learned
through the union hiring hall that the Illinois Termi-
nal Railroad was hiring for the summer. Thereafter,
in March 1967, Patton was interviewed by a railroad
personnel officer Who, according to Patton, stated
that the railroad job was "temporary" as part of a
division gang "to put in railroad ties through the
summer ...." Patton further testified that a num-
ber of regular full-time railroad employees retired in
the fall of 1967 and, consequently, in October 1967,
the railroad offered him,, and he accepted, permanent
employment.
In denying vacation pay to Patton the Administra-
tive Law Judge discredited Patton's testimony that at
the time he was hired by Illinois Terminal he was
told that the job was "temporary" and would last
only until the fall. In so discrediting Patton's testimo-
ny, however, the Administrative Law Judge relied
solely on a stipulation of the parties that Patton was
continuously employed by the railroad from March
20, that he completed a 60-day probationary period
and received many fringe benefits thereafter, and
that the director of labor relations for Illinois Termi-
nal would testify, if called, -that it was not the
railroad's policy in 1967 to hire full-time temporary
help.
In our view the stipulation as set forth above is of
itself insufficient to warrant discrediting Patton's tes-
timony. The critical question is whether, as of Sep-
tember 13, 1967, Patton had accepted permanent,
substantially equivalent employment. Patton testified
that when he was hired by Illinois Terminal he was
told that the job was temporary and not until Octo-
ber, after a number of regular employees retired, did
the railroad offer him permanent employment. In
view of the fact that the railroad's director of labor
relations and personnel was admittedly not involved
in Patton's hire in March 1967, his testimony as to
company policy in 1967 cannot, of itself, overcome
Patton's direct testimony with respect to what was
said to him at the time he was hired. Nor are events
subsequent to September 13, 1967, necessarily rele-
vant to a determination of Patton's "employee" sta-
tus on that date. Thus the fact that Patton retained
his employment with the railroad up to the date of
the hearing herein, as well as the fact that Patton was
awarded fringe benefits and reached an hourly rate
222 NLRB No. 116
DUNCAN FOUNDRY AND MACHINE WORKS
of $3.05 by January 1, 1969 , are not determinative of
his status on September 13, 1967. Indeed , these fac-
tors are consistent with Patton 's testimony that he
was offered and accepted permanent employment in
October 1967 . Accordingly , based on the record be-
fore us, we are not persuaded that Respondent has
met its burden of showing that Patton was no longer
its "employee" as of September 13, 1967 . We shall,
therefore, order payment of vacation pay to Patton
in the amount set forth in the backpay specification.
3. We_ are also satisfied that Wilbert F. Schwab, a
claimant who voted in the January 1968 election, is
entitled to vacation pay for 1967. In concluding
otherwise, the Administrative Law Judge noted that
Schwab had accepted employment with the Lenhardt
Tool and Die Company in February 1967, had re-
ceived periodic pay increases from Lenhardt (includ-
ing one on September 1, 1967), and had stopped pay-
ing others to picket for him in July or August 1967.
In particular , the Administrative Law Judge empha-
sized Schwab 's failure to seek reinstatement after the
strike ended in January 1968, and Schwab 's explana-
tion : "There was more men with seniority than I that
had not had a chance to go back and I had employ-
ment so I never responded."
As we have noted elsewhere , events subsequent to
September 13, 1967 , are not necessarily determina-
tive of a claimant's status on that date ? Schwab testi-
fied , without contradiction ,- that when he and fellow
claimant Adolph Kruse applied for work with Len-
hardt
,
they informed Lenhardt that they Wete on
strike and that they sought temporary employment.
Indeed, in determining the vacation pay entitled of
claimant Kruse, who was deceased at the time of the
hearing, the Administrative Law Judge relied on and
specifically credited Schwab's testimony that Kruse,
a member of the union negotiating team , approached
Lenhardt and inquired about the possibility of tem-
porary employment on behalf of Respondent's strik-
ing employees . The Administrative Law Judge fur-
ther credited Schwab 's testimony that when he and
Kruse were personally hired by Lenhardt's owner, "it
was understood ' by and between the parties-that their
employment tour would be temporary in nature."
In view of this credited , testimony , and absent any
testimony or other evidence that is inconsistent with
Schwab 's testimony that nothing was said prior to or
in September 1967 about converting his temporary
employee status with Lenhardt to permanent em-
ployee status, we find that as of September 13, 1967,
3 The Administrative Law Judge had little difficulty in finding various
other claimants entitled to vacation pay although they had obtained other
jobs prior to September 13, had received pay raises and fringe benefits both
before and after that date, and had failed to return to Respondent's employ
at the end of the strike in January 1968.
769
Schwab had not obtained permanent employment
but continued to be an employee of Respondent .4
Accordingly, we find Schwab entitled to vacation
pay as set forth in the specification.
4. Finally, we turn to the Administrative Law
Judge's conclusion that six claimants-Nathaniel
Sheppard, Eddie Simmons; Henry Smith, James
Walker, T. Willie Walker, and Burrel Wilkins-are
not entitled to vacation pay for 1967 by reason of
their employment with Chevrolet Shell Division of
General Motors on and before September 13, 1967.
In so concluding, the Administrative Law Judge
found that the claimants' Chevrolet Shell jobs were
regular, permanent, and substantially equivalent to
the jobs they previously held with Respondent. We
disagree.
The record plainly establishes that new hires at
Chevrolet Shell were told at the time of their employ-
ment interviews with the Company that Chevrolet
Shell held a government contract and that work
would last only for the duration of the contract. Two
of the six claimants who worked at Chevrolet Shell
testified that they were specifically told that the then
current government contract was due to expire in
November 1967. The only other Chevrolet Shell
claimant who testified recalled being told that the
Company was not sure how long the job would last
because of uncertainty about the contract.
In concluding that the Chevrolet Shell jobs were
"permanent" and thus that the six claimants em-
ployed by Chevrolet Shell were not entitled to vaca-
tion pay, the Administrative Law Judge relied largely
on Chevrolet Shell Supervisor Gleason's testimony
that the company considered all applicants to be
"permanent" employees. Moreover, the Administra-
tive Law Judge characterized Gleason's credited tes-
timony as inconsistent with the testimony given by
the claimants to the effect that they understood, as a
result of information given them at the employment
interviews, that the Chevrolet Shell jobs were tempo-
rary and might or might not continue after Novem-
ber.
Contrary to the Administrative Law Judge, the
record fails to -show any material conflict between
Oleason's testimony and that of the Chevrolet Shell
claimants. The issue here is not whether it was Chev-
° The Administrative Law Judge failed to note that Schwab worked the
day shift with Respondent but was required to work the night shift with
Lenhardt. The Administrative Law Judge also failed to note that although
the Union offered to return all strikers to work as of January 31, I968,
Respondent did not reinstate any strikers until March or April 1968, at
which time, as found by the Board in its original Decision and Order, Re-
spondent unlawfully discriminated against former strikers by stripping them
of their seniority . In view of this background , claimant Schwab 's explana-
tion for his failure to apply personally for reinstatement is understandable
as reflecting his recognition that Respondent was not willing to reinstate
him and that his personal application would be futile
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rolet Shell's formal policy to treat all job applicants
in 1967 as applicants for permanent and regular em-
ployment. Rather, the issue is whether the claimants
had abandoned their interest in employment with
Respondent as evidenced by their acceptance of sub-
stantially equivalent and permanent employment
elsewhere. Given that the claimants were apparently
led to understand that the Chevrolet Shell jobs would
end in November 1967 unless the government con-
tract under which Chevrolet Shell operated was ex-
tended, we do not see how Respondent has met its
burden of showing that these claimants had accepted
permanent employment as of September 13, 1967.
Hence we shall order payment of vacation pay to
these six claimants .5
Nathaniel Sheppard
Eddie Simmons
Henry Smith
James Walker .
T. Willie Walker
Burrel Wilkins
$432.80
$312.80
$176.40
$162.00
$130.80.
$177.60
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts the Administrative Law Judge's
recommendations as modified below, and orders
that Respondent, Duncan Foundry and Machine
Works, Inc., St. Louis, Missouri, its officers, agents,
successors, and assigns, shall:
1. Make whole in the amounts set forth therein,
together with interest thereon at the rate of 6 percent
per annum calculated in the manner set forth in Lo-
cal 138, International Union of Operating Engineers,
AFL-CIO, et al. (Nassau and Suffolk Contractors' As-
sociation Inc.), 151 NLRB 972 (1965), less any lawful-
ly required tax withholding, those striker-employees
whose entitlement to vacation pay for 1967 was
found by the Administrative Law Judge in his Sec-
and Supplemental Decision. In said Second Supple-
mental Decision the Administrative Law Judge inad-
vertently changed the amount due Ray A. Tolbert
from $240.80 to $204.80. Respondent shall make
whole Ray A. Tolbert in the amount of $240.80 to-
gether with interest calculated in the manner set
forth above.
2. Make whole in the amounts set forth opposite
their names listed below, together with interest there-
on at the rate of 6 percent per annum, calculated in
the manner set forth in Local 138, International Union
of Operating Engineers, AFL-CIO, et al. (Nassau and
Suffolk Contractors' Association, Inc.), 151 NLRB 972
(1965), less any lawfully required tax withholding,
the following striker-employees whose entitlement to
vacation pay has been determined herein save that
the entire amounts due Al D. Bond, Henry Smith,
and James Walker shall be paid to the Regional Di-
rector as provided in this Decision:
Carl N. Patton $108.40
Wilbert F. Schwab $263.20
5 Although duly subpenaed , claimants Smith and James Walker failed to
testify. We shall, therefore, direct that the amount of vacation pay due
Smith and Walker be paid to the Regional Director for Region 14 to be held
in escrow for a period not to exceed I year. The Regional Director is in-
structed to make suitable arrangements to afford the Respondent , together
with the General Counsel's representative , an opportunity to examine Bond,
Smith, and Walker. The Regional Director shall make a final determination
whether any vacation pay is due them. In the event the Regional Director
determines that one or more of them is not entitled to vacation pay, the
amount held in escrow in his name shall be returned to the Respondent. If
it is determined that vacation pay is due Bond, Smith , or Walker, the
amount required to be withheld for income tax purposes by Federal or state
law shall be refunded to the Respondent at that time If any of the above-
named individuals are not located within the period specified, then the es-
crow account or accounts shall be refunded to the Respondent, but the
refund will not operate to extinguish the Respondent's liability.
SUPPLEMENTAL DECISION
MAX ROSENBERG, Administrative Law Judge: This is a
backpay proceeding which came on to be heard before me
in St. Louis, Missouri, between September 10 and 13, 1973,
pursuant to a backpay specification filed by the General
Counsel of the National Labor Relations Board and an
answer filed thereto by Duncan Foundry and Machine
Works, Inc., herein called the Respondent. This instant liti-
gation finds its origin in a Board Decision and Order_ren-,
dered on May 29, 1969,' another handed down on August
20, 1970,2 and subsequent enforcing opinions of the United
States Court of Appeals for the Seventh Circuit.'
Following issuance of the Board's decisions and- the
court's decrees, a controversy arose over the amount, if
any,- of accrued vacation pay owed to 29 alleged discrimi-
natees. In consequence of the dispute, the Regional Direc-
tor for Region 14 issued a backpay specification and notice
of hearing on June 13, 1973. On June 29, 1973, Respondent
interposed its, answer to the foregoing affirmative plead-
ings. At the hearing, all parties were afforded full opportu-
nity to present evidence and to examine and cross-examine
witnesses. Briefs have been received from the General
Counsel and the Respondent which have been duly consid-
ered.
Upon the basis of the entire record made in these pro-
ceedings, including my observation of the demeanor of the
witnesses who testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
Without reciting the prior factual findings of the Board
i 176 NLRB 263.
2 185 NLRB 16
3 The first decision of the court issued on December 1, 1970, relating to
176 NLRB 263, and the second was filed on April 6, 1972, regarding 185
NLRB 16 Neither is officially reported.
DUNCAN, FOUNDRY AND MACHINE WORKS
and the court in detail, it is sufficient to note and I find
that, from 1942 until 1966, Respondent recognized and ex-
ecuted successive collective-bargaining contracts with a la-
bor organization entitled the, Employees' Association.
These agreements, the latest of which was effective from
May 18, 1963, through May 13, 1966, contained, inter alia,
a provision for the payment of vacation benefits, based on
length of service, to employees who worked continuously
during the preceding year, who received earnings in at least
60 percent of the pay periods preceding May 1 of the year
of payment, and who were employees on May 1, of the
payment year. On February 21, 1966, United Steelworkers
of America, AFL-CIO, filed a representation petition with
the Board seeking an -election among Respondent's em-
ployees. In the ensuing ballotmg held on July 19, 1966, the
Steelworkers received a certification as the exclusive repre-
sentative of the employees involved.
Commencmg on October 4, 1966, Respondent and the
new incumbent union engaged in numerous bargaining
sessions . However, an impasse in negotiations was reached
and, on January 29, 1967, the Steelworkers embarked upon
an economic strike. Despite the work stoppage, collective
bargaining continued until September 13, 1967, when the
Employees' Association filed a petition with the Board
questioning the Steelworkers representative status .4 On the
following day, Respondent filed a petition of similar pur-
port.' Between January 26 and 28, 1968, another election
was conducted, and the Steelworkers' strike terminated on
January 31, 1968.
During the aforementioned election, Respondent chal-
lenged the ballots of 178 employees, including 22 of the 29
individuals whose names are enumerated as vacation pay
claimants in the backpay specification .6 On February 16,
1968, the Regional Director for Region 14 wrote to Re-
spondent inviting it to submit a statement of its position as
to the ineligibility of the challenged employees to vote in
the election, together with any evidence it wished to proffer
in support 'thereof. On April 6, 1968, Respondent re-
sponded to the Regional Director's invitation. After a com-
prehensive investigation of each of Respondent's chal-
lenges, and a careful evaluation of the evidence which
Respondent had provided, the Regional Director issued his
Supplemental Decision on June 5, 1968, in which he la-
bored at length to set forth the evidence as to each of the
challenged voters which had come to his attention. In that
Decision, he found as a fact that 172 of the challenged
voters, including the 22 voting backpay claimants whose
names are listed in the margin, were "employees" who
were entitled to and did cast valid votes in the election
conducted between January 26 and 28, 1968. Following an
° Case 14-RC-5787.
5 Case 14-RM-327.
6 The 22 challenged claimants are Eddie W. Arnold, Ulysses S. Bowie,
Donald E. Bryant; Paul E. Cappel, Ollie Covington, Louis E. Dodge, Rich-
ard G. Dunham, Berme M . Gonzales, Charles F. Henson , Leon Hicks,
Adolph Kruse, Carl N. Patton, Robert C. Ragan, Jr, Donald Reynolds,
Wilbert F. Schwab, Nathaniel Sheppard, Edd Simmons, Henry Smith, Ray
A. Tolbert, James E. Walker, T. Willie Walker, and Burrel Wilkins The
remaining seven claimants , who did not vote in the election and were there-
fore not challenged, are: Walter L. Alexander, Al D. Bond, Richard D.
Brown, Carl R Dunham, Stanley Morgan, Conway B Scott, and Larnell
Tharpe.
771
unsuccessful appeal by Respondent to the Board alleging
that it was entitled to, but was denied, an adversary hear-
ing on its challenges by the Regional Director, and after
the Steelworkers certification as the majority representative
of the employees had issued, Respondent refused to bar-
gain with that union, an act which the Board found viola-
tive of Section 8(a)(5) of the statute in Case 14-CA-5216
(reported in 185 NLRB 16). Thereafter, Respondent sought
review of the Board's adverse decision by the United States
Court of Appeals for the Seventh Circuit. In a slip opinion
rendered on April 6, -1972, that tribunal rejected
Respondent's petition for review, stating:
the Regional Director made a comprehensive investi-
gation of each of the challenges made by the parties
and set forth, in writing, his findings as to each. He
sustained six of the Company's challenges and over-
ruled the remainder. It would unduly prolong this
opinion to discuss each challenge, or each category of
challenges. We have studied the Company's entire
submission, as well as the full report of the Director,
and are satisfied that the judgments which he made
were well within the area of his discretion, and that his
investigation did not reveal the need for an adversary
hearing.
In sum, the court adopted the Board's view that the 22
challenged vacation pay claimants retained their status as
"employees" of Respondent during their engagement in
the economic strike which extended from January 29, 1967,
to January 31, 1968.
While the foregoing proceedings respecting the
Respondent's challenges and its refusal to bargain were
running their course, the Steelworkers filed charges with
the Board on March 20, 1968, alleging that Respondent
had unlawfully refused to award accrued vacation-pay for
1967 to certain employees who had participated in the
strike during its entirety and/or who failed to return to
work after September 13, 1967, the date on which the Em-
ployees' Association petition for an election was filed. In
its Decision and Order of May 29, 1969 (reported in 176
NLRB 263), the Board found that, although the 1963-66
contract between Respondent and the Employees' Associa-
tion had expired when the strike began, Respondent never-
theless continued to apply the vacation pay provision con-
tained therein. Specifically, the Board found that, by
affording vacation pay to employees who remained at
work and strikers who returned,to their duties poor to Sep-
tember 13, 1967, while withholding these benefits from
strikers who remained on strike throughout its term or who
returned to work after September 13, 1967, Respondent
offended the provisions of Section 8(a)(3) of the Act as to
the individuals who comprised the latter class. In reaching
this conclusion, the Board stated that:
We find that on May 1, 1967, the qualifying date on
which benefits were computed, the strikers [those in
the class who did not resume their duties with Respon-
dent during the periods in question] maintained their
employee status. The Board and the Courts have held
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an economic striker who has not been replaced not
only remains an employee under Section 2(3) of the
Act, but in regard to accrued vacation benefits must
be treated in the same fashion as other employees.?
During enforcement proceedings before the United
States Court of Appeals for the Seventh Circuit, Respon-
dent complained that the General Counsel failed in his
complaint to plead and delineate adequately, and the
Board in its decision failed to spell out, the class of em-
ployees who had unlawfully been deprived of the vacation
benefits. In its opinion filed on December 1, 1970, well
over a year before the court adopted the Board's findings in
the voter challenge refusal-to-bargain proceeding that the
22 challenged claimants were "employees" of the Respon-
dent, the Court observed:
The question of class composition posed by respon-
dent would require the determination of each striking
employee's status within the class prior to a finding of
discrimination. For convenience, such matters are
properly considered in the compliance stage of the
case, after the question of discrimination has been def-
initely settled. . . . the Company will have an ade-
quate opportunity to object to the inclusion of individ-
ual members of the class at that time.8
In light of the court's findings that the 22 challenged
claimants continued to occupy the status of "employees"
throughout the work stoppage, despite Respondent's con-
tention that they had either quit their jobs with Respon-
dent before May 1, 1967, or during the strike, or had found
other regular and substantially equivalent employment in
those periods, and the Board's pronouncement that "on
May 1, 1967, the qualifying date on which benefits were
computed, the strikers maintained their employee status,"
it seems clear to me that both the Board and the Court
have already adjudicated the entitlement of these 22 indi-
viduals to vacation pay for 1967. As the Respondent has
not challenged the propriety or accuracy of the mathemati-
cal computations regarding the amounts of vacation pay
due to each of said discriminatees, I find and conclude that
the 22 challenged voter claimants are entitled to the sums
which appear opposite their respective names listed below,
plus accrued interest, less any lawfully required tax with-
holding .9
There remains for consideration the entitlement of the
seven nonvoting claimants to vacation pay.
ment and was paid $2.64 per hour. Alexander joined the
strike at its inception and continued to picket until July
1967. In March 1967, Alexander obtained a job as a chip
puller with the Schwinn Bicycle Company in Chicago and
was paid at the rate of $2.12 per hour, a cutback of more
than $.50. In October 1967, Alexander procured another
position with Ingersoll Products where he received an
hourly rate of $2.98. When Alexander applied for employ-
ment at both Schwinn and Ingersoll, he informed those
employers that he was an employee of Respondent who
was engaged in the economic strike, and that he merely
sought temporary work at their plants. Based on the fore-
going uncontroverted testimony submitted by Alexander in
this proceeding, I find and conclude that he was an em-
ployee of Respondent on May 1, 1967, and, as such, is
entitled to vacation pay in the amount set forth next to his
name as indicated below.
2. Al D. Bond
Although duly subpenaed by the General Counsel, Bond
failed to appear at the hearing. The Backpay Specification
alleges that Bond was an economic striker on May 1, 1967,
the salient date. Respondent has moved for dismissal of the
case as to Bond on the ground that the General Counsel
has failed to sustain the burden of proof that Bond was a
striking employee on that date. I find no merit in
Respondent's contention. Ephrim J. Green, Respondent's
personnel manager, testified that Bond actively worked at
the plant until the strike commenced. Green stated that
Bond never submitted a "quit slip" to his office and com-
mented that Bond "must have" joined the strike because he
"didn't work after the strike started." Moreover, Respon-
dent offered no objective evidence to support its assertion
that Bond never became a striker. Accordingly, I find and
conclude that Bond is entitled to the amount of vacation
pay set forth opposite his name below. However, inasmuch
as Bond failed to present himself at the hearing and be
subjected to examination by Respondent's counsel, I shall
order that Respondent pay to the Regional Director for
Region 14 the calculated sum of vacation pay to be held in
escrow by him for a period not to exceed 1 year in order to
afford a reasonable opportunity for Bond to come forward
and be examined.10 In the event that Bond fails to do so
within the prescribed period of time, the sum transmitted
to the Director shall be returned to Respondent."
1. Walter L. Alexander
Alexander's testimony is undisputed and I find that he
began to work for Respondent on October 9, 1963, and
hence had more than 3 years of seniority with the Compa-
ny when the economic strike commenced on January 29,
1967. He worked as molder during his tenure of employ-
7 176 NLRB 263, 264.
'Shp opinion of December 1, 1970.
9 I am fortified in this conclusion by an appraisal of the evidence which
Respondent adduced in this proceeding, which is not at substantial variance
with the evidence which the Regional Director, the Board, and the court
considered when they made the determination that the 22 challenged voters
were "employees" of Respondent during the economic strike
3. Richard D. Brown
Brown was employed by Respondent on March 12,
1965, and performed the duties of a crane operator receiv-
ing a wage of $2.89 per hour. To accommodate his atten-
dance at college, he worked straight afternoons. At the
commencement of the strike, Brown picketed for a few
10 See Steve Alot Ford, Inc., 190 NLRB 661, 662 (1971)
ii James E Walker and Henry Smith , two of the challenged voters whom
I have heretofore found to be entitled to vacation pay, also failed to appear
at the hearing although subpenaed by the General Counsel . I shall therefore
recommend that the amounts of their vacation pay be also held in escrow by
the Regional Director and be returned to Respondent after a year should
these two individuals decline to come forward and submit to examination
DUNCAN FOUNDRY AND MACHINE WORKS 773
weeks and thereafter occasionally visited the picket line. In
February 1967 Brown searched for other work. In early
February, he was interviewed for job placement by Office
Manager Hutchinson of Crown Finance Company in Al-
ton, Illinois. It is uncontroverted and I find that, during the
interview, Brown notified Hutchinson that the former was
an employee of Respondent who was on strike. Hutchin-
son replied that he was looking for a full-time employee
and advised Brown that he would have to sever his employ-
ee-relationship with Respondent as a condition to employ-
ment with Crown Finance Company. Brown followed this
advice and, on February 10, 1967, dispatched a letter to
Respondent which recited that he had voluntarily quit his
job with the Company in order to take another position.
Brown began his employment with Crown Finance
Company on February 13, 1967, and worked on a full-time
basis until September 1967, receiving an hourly wage of
$2.30, some $0.59 less than he earned with Respondent.
Moreover, Brown's new employment necessitated chang-
ing his college schedule from attendance during the day to
attendance in the evening.
Respondent asserts that Brown, by voluntarily executing
a "quit slip" on February 10, 1967, thereby forfeited his
status"as an "employee" as of May 1, 1967, and therefore
does not qualify for vacation pay under the contractual
provision. I am not convinced that the execution of the
document in question constituted a permanent resignation
from Respondent's work force. The record shows that
Brown was in need of gainful employment during the strike
and sought a job with Crown Finance Company, even at a
substantial sacrifice to income, to satisfy that need. More-
over, it is uncontroverted that Brown would not have been
employed by the enterprise unless he produced evidence
that he had severed his ties with Respondent. As the court
of appeals noted in its slip opinion of April 6, 1972, in
considering the eligibility of Eddie Arnold, "the quit slips
executed by Arnold and the others were consistent with a
need to establish eligibility for interim employment else-
where and did not necessarily demonstrate a permanent
resignation."
Accordingly, I find and conclude that-Brown remained
an "employee" of Respondent on May 1, 1967, and that he
is entitled to the sum of vacation pay listed opposite his
name below.
underwent a 45-day probationary period, and has toiled
for the supermarket ever since.
Respondent contends that Dunham had acquired regu-
lar, permanent, and substantially equivalent employment
with National Super Markets, Inc., on March 13, 1967, had
therefore permanently abandoned his position with Re-
spondent prior to the qualifying date of May-1, 1967, and
consequently was disentitled to vacation pay for 1967. I do
not agree. Despite his employment with the grocery chain-,
Dunham continued to picket in support of the strike until
as late as May or June 1967, thus evincing a persisting
desire to support the economic strike in which he was in-
volved. Furthermore, Dunham did not apprise his new em-
ployer that he had relinquished any desire to return to
work for Respondent. In short, I find and conclude that
Dunham remained an "employee" of Respondent on the
critical date of May 1, 1967, and should be awarded the
sum of vacation pay listed next to his name below.
5. Stanley Morgan
Morgan was employed by Respondent on August 22,
1965, as a hand grinder on the evening shift and his hourly
rate of pay was $2.30. He testified without contradiction
and I find that he joined the strike on January 29, 1967,
and continued to picket until June 1967. During that peri-
od, he searched for employment but was unsuccessful until
June 13, 1967, when he was hired by National Marine Ser-
vice. It was stipulated and I find that Morgan' s entrance
wage was $2.00 per hour which was the contract rate for
"temporary, inexperienced helpers," that he worked only 2
days in the first week and was then laid off until July 5,
1967. Upon his recall, he has worked continuously for that
entity.
Respondent claims that Morgan's employment with Na-
tional Marine Service on June 13, 1967, was regular and
substantially equivalent, and that he therefore should not
be awarded any vacation pay for 1967. However, as chron-
icled heretofore,12 the Board has made it abundantly clear
the qualifying date on which vacation benefits are to be
computed is May 1, 1967. Accordingly, I find and con-
clude that, as Morgan maintained his status as an "employ-
ee" of Respondent on that date, he is entitled to the
amount of vacation pay set forth opposite his name below.
4. Carl R. Dunham
Dunham worked for Respondent for approximately 1
year prior to the strike as either a carpenter or swing grind-
er, and received the rate of $2.25 an hour. He testified
without contradiction and I find that he engaged in picket-
ing for 4 or 5 months after the commencement of the work
stoppage. On March 13, 1967, he applied for employment
at National Super Markets, Inc., in Alton, Illinois, at a
starting rate of approximately $2.49 per hour. His employ-
ment application reveals that he applied for "Any kind" of
work on a "Full time" basis, and that he was a striking
employee of Respondent. At the time of his hire, Dunham
did not advise National Super Markets, Inc., whether he
would return to his job with Respondent or that he had
unequivocally abandoned his employment there. Dunham
6. Conway B. Scott
Scott was subpenaed by the General Counsel to testify in
this proceeding but did not appear. The record evidence
relating to Scott, which is undisputed, came from the lips
of Respondent's Personnel Manager Ephrim J. Green.
Green testified that Scott left work at the inception of the
economic strike against Respondent. On April 17, 1967, he
visited the personnel office and announced to Green that
he had unequivocally decided to quit his employment with
the Company. Without objection, Respondent' s counsel
submitted into evidence a document dated April 17, 1967,
entitled "Service Record of Former Employee." Citing
12 See footnote 6, supra
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott's full name, job title, Social Security Number, and
dates of employment, there also appears on the document
after the phrase "Reason For Leaving" the comment "Quit
voluntarily 4-17-67." There is nothing in the record to in-
dicate that Scott executed the "quit slip" in order to qualify
for employment at another establishment.
At the hearing, the General Counsel candidly conceded
that, if Scott had voluntarily quit his job on April 17, 1967,
he would have forfeited his entitlement to vacation pay for
the year 1967. On the basis of the foregoing testimony and
documentary evidence, I find and conclude that Scott was
not an "employee" of Respondent on May 1, 1967, and
therefore is not entitled to the vacation pay set forth in the
Backpay Specification. I shall therefore deny it to him.
7. Larnell Tharpe
Tharpe entered Respondent's employment in 1951 and,
when he joined the economic strike on January 29, 1967, he
received an hourly wage of $2.61. Tharpe, who worked as a
molder on a rotating shift, picketed from the inception of
the strike until July 1967. It is his undenied testimony and
I find that he unsuccessfully sought interim employment
during the period from January to July 1967. In July 1967,
Tharpe left Alton, Illinois, (his hometown and the site of
Respondent's plant) and ventured to Tennessee where he
obtained a construction job with a starting hourly rate of
$2.24 which was later escalated to $2.45. Tharpe did not
inform his new employer that lie was a striker against Re-
spondent, nor did he state that he sought permanent em-
ployment. In light of the facts that Tharpe was an econom-
ic striker on May 1, 1967, who had not previously quit his
job with Respondent and who had not obtained regular
and substantially equivalent employment elsewhere prior
to May 1, 1967, I find and conclude that Tharpe was an
"employee" on that critical date who is entitled to the sum
of vacation pay listed opposite his name below.
Upon the basis of the foregoing findings and conclu-
sions, I recommend that Respondent's obligation to make
whole striker employees under the terms of the Board's
Order as enforced by the court decree will be discharged
by payment to the striker employees named below of the
amounts set forth opposite their names, together with inter-
est thereon at the rate of 6 percent per annum, calculated
in the manner set forth in Local 138, International Union of
Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk
Contractors' Association,` Inc., et al.), 151 NLRB 972 (1965),
less any lawfully required tax withholding.
Walter L. Alexander $195.60
Eddie W. Arnold 327.60
Al D. Bond 110.40
Ulysses S. Bowie - 608.00
Richard D. Brown 115.60
Donald E. Bryant 166.80
Paul E. Cappel 221.60
Ollie Covington 190.20
Louis E. Dodge 534.40
Carl R. Dunham 133.20-
Richard G. Dunham 108.80
Bernie M. Gonzales 181.21
Charles F. Henson 116.00
Leon Hicks 114.00
Adolph W. Kruse 553.60
Stanley Morgan 109.20
Carl N. Patton 108.40
Robert C. Ragan, Jr. 240.00
Donald Reynolds 211.20
Wilbert Schwab 263.20
Nathaniel Sheppard 432:80
Edd Simmons 312.80
Henry Smith 176.40
Larnell Tharpe 432.00
Ray A. Tolbert 240.80
James E. Walker 162.00
T. Willie Walker 130.00
Burrel Wilkins 177.60
SECOND SUPPLEMENTAL DECISION
On January 18, 1974, I issued a Supplemental Decision
in this proceeding in-which I found that 22 discriminatees
who cast challenged ballots in an election conducted be-
tween January 26 and 28, 1968, during the course of an
economic strike against Respondent, were entitled to, vary-
ing sums of vacation pay, as set forth in that Decision. I
also found that six nonvoting claimants should be compen-
sated for vacation pay from May 1, 1967, when their eligi-
bility for this award vested.' Thereafter, the Board remand-
ed the proceeding, stating:
The Board is of the opinion that the critical date for
establishing the employee status of the nonvoting
claimants and hence their eligibility for vacation pay
is September 13, 1967, rather -than the May 1, 1967,
date found by the Administrative Law Judge. Accord-
ingly, the Administrative Law Judge-is to determine
the employee status and eligibility for vacation pay of
each of the six nonvoting claimants whom he ,found
entitled to payment in accordance with the September
13, 1967, date.2 -
In addition, the Board is of the opinion that the Ad-
ministrative Law Judge must make specific findings of
fact and conclusions of law based thereon as to the
entitlement to vacation pay of each of the 22 vacation
pay claimants who voted in the January 1968 election.
Such findings of fact and conclusions of law are to be
made in light of the record developed at the hearing
held before the Administrative Law Judge between
September 10 and 13, 1973.
i An existing collective-bargaining agreement between Respondent and a
labor organization entitled the Employees ' Association contained , inter a/a,
a provision for the payment of vacation benefits, based on length of service
to employees who worked continuously during the preceding year,, who
received earnings in at least 60 percent of the pay periods preceding May I
of the year of payment, and who were employees on May I of the payment
year Respondent does not challenge the propriety or accuracy of the math-
ematical computations regarding the amounts of vacation pay due to the
claimants herein as they appear in the Backpay Specification.
2 As chronicled in the Supplemental Decision , some of Respondent's em-
ployees embarked upon an economic strike on January 29, 1967, which
terminated on January 31, 1968. In its original Decision ( 176 NLRB 263),
the Board determined that Respondent had discriminated against these
strikers by withholding their grant of vacation pay on and after September
13, 1967, while affording this benefit to employees who remained at work or
strikers who returned to their duties prior to that date.
DUNCAN FOUNDRY AND MACHINE WORKS 775
In conformity with the remand, I hereby make the follow-
ing:
striking employee on and after September 13, 1967, and is
entitled to the amount of vacation pay set forth 'opposite
his name below.3
FINDINGS OF FACT AND CONCLUSIONS
A. Vacation Pay Entitlement of the Six Nonvoting
Claimants
1. Walter L. Alexander
Based on the record made herein, I find that Alexander
began to work for Respondent on October 9, 1963, and
hence had more than 3 years of seniority with the Compa-
ny when the economic strike commenced on January 29,
1967. He worked as a molder during his tenure of employ-
ment and was paid at the rate of $2.64 per hour. Alexander
joined the strike at its inception and continued to picket
until July 1967. In March 1967, Alexander obtained a posi-
tion as- a chip puller with-the Schwinn Bicycle Company in
Chicago, a job which he began in July of that year, and was
paid at the rate of $2,12 per hour, a cutback of more than
50 cents. In October 1967, Alexander procured another po-
sition with- Ingersoll Products where he received an hourly
rate of $2.98. It is undisputed and I find that, when he
applied for employment at both Schwinn and Ingersoll, he
informed those employers that he was an employee of Re-
spondent, that he was engaged in an economic strike, and
that he merely sought temporary work at their plants.
When the strike terminated, Alexander remained with In-
gersoll because he had then acquired tenure with that com-
pany. Based on the foregoing uncontroverted testimony
submitted by Alexander in this proceeding, I find and con-
clude that he remained an employee of Respondent be-
tween September 13, 1967, and January 31, 1968, and is
entitled to vacation pay for 1967 in the amount set forth
next to his name as indicated below.
2. Al D. Bond
-Bond, although duly subpenaed by the General Counsel,
failed to appear at the hearing. The backpay specification
alleges that Bond was an economic striker on May 1, 1967.
Respondent moved for dismissal of the case as to Bond on
the ground that the General Counsel failed to sustain the
burden of proof that Bond was a striking employee of Re-
spondent during the critical period on and after September
13, 1967. I find no merit in Respondent's contention.
Ephrim J. Green, Respondent's personnel manager, testi-
fied that Bond actively worked at the plant until the strike
commenced on January 29, 1967. Green stated that Bond
never submitted a "quit slip" to his office, and commented
that Bond "must have" joined the strike because he "didn't
work after the strike started." Moreover, Respondent of-
fered no objective evidence to support its assertion that
Bond never became a striker, or had ever abandoned his
engagement in the strike, or had obtained permanent and
substantially equivalent employment at any time between
September 13, 1967, and January 31, 1968, with another
employer. I therefore find and conclude that Bond was a
3. Richard D. Brown
Brown was employed by Respondent on March 12,
1965, and performed the duties of a crane operator at a
wage of $2.89 per hour. To accommodate his attendance at
college, he worked straight afternoons. At the commence-
ment of the strike, Brown picketed for a few weeks and
thereafter occasionally visited the picket line. In the month
of February 1967, Brown searched for other work. In early
February, he was interviewed for job placement by Office
Manager Hutchinson of Crown Finance Company in Al-
ton, Illinois. It is uncontroverted and I find that, during the
interview, Brown notified Hutchinson that the former was
an employee of Respondent who was on strike. Hutchin-
son replied that he was seeking a full-time employee and
advised Brown that he would have to sever his employee-
relationship with Respondent as a condition of employ-
ment with Crown Finance Company. Brown followed this
advice and, on February 10, 1967, dispatched a letter to
Respondent which recited that he had voluntarily quit his
job with the Company in order to take another position.
Brown began his employment with his new employer on
February 13, 1967, and worked on a full-time basis until
September 1967, receiving an hourly wage of $2.30, some
59 cents less than he earned with Respondent. In Septem-
ber 1967, he became a part-time employee of Crown, and
earned $2.45 an hour. Moreover, Brown's new employment
necessitated changing his college schedule from attendance
during the day to attendance at night.
Respondent asserts that Brown, by voluntarily executing
a "quit slip" on February 10, 1967, thereby - forfeited his
status as an "employee" of Respondent as of September
13, 1967, and therefore does not qualify for vacation pay. I
am not convinced that the execution of the document in
question constituted a permanent resignation from
Respondent's work force. The record shows that Brown
was in need of gainful employment during the strike and
sought a job with Crown Finance Company, even at a sub-
stantial sacrifice of income and working conditions, to sa-
tisfy that need. Moreover, it is uncontroverted that Brown
would not have been employed by Crown unless he pro-
duced evidence that he had severed his employment ties
with Respondent. As the court of appeals noted in its slip
opinion in this proceeding dated April 6, 1972, in consider-
ing the eligibility of Eddie Arnold, "the quit slips executed
by Arnold and the others were consistent with a need to
establish eligibility for interim employment elsewhere and
3 Because Bond did not respond to the General Counsel's subpena, I
ordered, in the Supplemental Decision , that Respondent pay to the Region-
al Director for Region 14 the calculated sum of vacation pay which was to
be held in escrow by him for a period not to exceed I year in order to afford
a reasonable opportunity for Bond to come forward and be examined More
than a year has elapsed since the issuance of that Decision . Accordingly, in
the event that the Regional Director is unable to summon Bond within 2
weeks from the date of this Second Supplemental Decision, I shall order
that Respondent's financial obligation to afford vacation pay to him in the
calculated amount be discharged.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not necessarily -demonstrate a permanent resignation."
I therefore find and conclude that Brown remained an
"employee" of Respondent on and after September 13,
1967, and that he is entitled to the sum of vacation pay
listed opposite his name below.
4. Carl R. Dunham
Carl Dunham worked for Respondent as a swing grind-
er, and received an hourly rate of pay of $2.25. He testified
that he engaged in, picketing for 4 or 5 months after the
commencement of the work stoppage on January 29, 1967.
The record shows that Dunham was hired by National
Food Stores on March 13, 1967, at the starting rate of
approximately $2.49 per hour , and performed the duties of
a stock and checking clerk . Dunham testified that , when he
was interviewed for the position with National Food
Stores, he informed the company that he was a participant
in the strike at Respondent . When questioned as to wheth-
er there was any discussion with his interviewer concerning
the permanency of his new employment , Dunham re-
sponded that , "We didn 't discuss it, really. He said he
didn't know what my intentions were, but he would try me
for 45 days and that is all he said ." However, Dunham
added, "I didn't tell him whether I was going back to work
or not" with Respondent.
On cross-examination, Dunham acknowledged that,
during his entrance interview with National Food Stores,
he was advised that, after the completion of a 45-day pro-
bationary period, "if I wanted to stay, if I worked out, I
could stay as long as I wanted to" and that "It [the job] was
permanent as long as I wanted to stay there." In his testi-
mony, Dunham initially denied that he told any official of
the supermarket that "if the job worked out [he] would stay
there." He then hedged by answering, "Not that I know
of." Finally, when shown an affidavit which he gave to a
Board agent, he admitted stating that "If it worked out, I
would stay, which I did." During his employment tenure
with National Food Stores , he received wage increases ev-
ery 6 months which reached an hourly figure of $2.75 by
February 11, 1968. Concluding his testimony, Dunham
never applied for reinstatement with Respondent after his
employment with the grocery store, and did not thereafter
actively support the strike.
On the basis of the foregoing, I am not persuaded that
Dunham remained an employee of Respondent following
his acquisition of tenure at National Food Stores. By his
own admission , his job with that company "worked out"
and he decided permanently to remain in that position.
Accordingly, f conclude that Dunham obtained regular,
permanent, and equivalent employment elsewhere prior to
September 13, 1967, and that he is not entitled to vacation
pay for 1967.
5. Stanley Morgan
Morgan was employed by Respondent on August 22,
1965, as a hand grinder on the evening shift and his hourly
rate of pay was $2.30. He testified and I find that he joined
the strike on January 29, 1967, and continued, to picket
until June 1967. During that period, he applied for a job
with National Marine Service and, on June 13, 1967, was
hired as a "temporary, inexperienced" laborer at a wage of
$2 an hour. Shortly thereafter , he was laid off for 2 weeks,
but, on July 5, 1967, was recalled and has worked regularly
and continuously with National Marine Service ever since.
After 90 days of his initial employment date, Morgan's
hourly rate escalated to $2.60 . When shown an affidavit
which he gave to the Board , Morgan acknowledged that,
after he returned from layoff on July 5, 1967, "I really took
this job as a permanent job. The company knew I was a
striker from Duncan . I think I told them , but I can't be
sure. I had intended to take thejob as a temporary one, but
they asked me if I intended to stay and I said I did." Dur-
ing cross -examination, Morgan repeated that he had ac-
cepted renewed employment with National Marine Service
on a permanent basis in July 1967, and that he had in-
formed that employer that he did not intend to return to
his job with Respondent.
Respondent claims that Morgan 's employment with Na-
tional Marine Service in July 1967 was regular, permanent,
and substantially equivalent, and that he therefore should
be denied vacation pay for 1967. In light of Morgan's testi-
mony that he began his employment in July 1967 with that
company on a permanent basis, I find merit in
Respondent's contention that Morgan was not an "em-
ployee" of Respondent on or after September 13, 1967, and
should consequently be disqualified from payment of vaca-
tion benefits for 1967. I shall therefore not award any vaca-
tion pay to him.
6. Larnell Tharpe
Tharpe entered Respondent's employment in 1951 and,
when he joined the economic strike on January 29, 1967,
received an hourly wage of $2.61. Tharpe, who worked as a
molder on a rotating shift, picketed from the inception of
the work stoppage until July 1967. It is his undenied testi-
mony and I find that he unsuccessfully sought interim em-
ployment during the period from January to July 1967. In
July 1967, Tharpe left Alton, Illinois (his hometown and
the site of Respondent 's plant), and ventured to Tennessee
where he obtained a construction job with a starting hourly
rate of $2.24 which was later escalated to $2.45. Tharpe did
not inform his new employer that he was a-striker against
Respondent , nor did he state that he sought permanent
employment. Tharpe testified without contradiction and I
find that the construction jobs on which he worked were
temporary in nature . Furthermore, Tharpe, a family man,
did not move his household to Tennessee until October
1967.
I find that, inasmuch as Tharpe had not quit his job with
Respondent and had not obtained permanent and substan-
tially -equivalent employment elsewhere prior to or after
September 13, 1967, he remained an "employee" of Re-
spondent on that critical date and until January 31, 1968,
and I conclude that he is entitled to the sum of vacation
pay listed opposite his name below.
DUNCAN FOUNDRY AND MACHINE WORKS 777
B. Vacation Pay Entitlement of the 22 Claimants Who
Voted in the January 1968 Election
1. Eddie W. Arnold
Arnold had worked for Respondent for 16 years as a
common laborer earning $2.58 an hour when he joined the
strike on January 29, 1967, and, it is undisputed and I find
that he picketed and otherwise supported the work stop-
page until its termination on January 31, 1968. Arnold tes-
tified that, a few weeks after the strike commenced, he was
summoned to the office of Respondent's Personnel Man-
ager Ephrim Green who inquired whether Arnold would be
interested in crossing the picket line and returning to work.
Arnold declined the offer "because I didn't want to cross
the picket line."
On a date prior to May 1, 1967, Arnold learned that a
custodial job was vacant in the Alton school system.
Armed with this intelligence, he visited the Alton School
Board on April 21, 1967, and was hired as a custodian on
May 1, 1967, at the rate of $382 per month, which works
out to $2.21 per hour. When he submitted his application,
Arnold did not list Respondent as a former employer, nor,
according to him, did he seek permanent employment. It is
Arnold's testimony that, when he was interviewed by As-
sistant Superintendent of Schools Ed Luman for the job,
no mention was made of the permanency of the position,
"They [Luman] just told me they had me on trial."
On June 19, 1967, Arnold visited Personnel Manager
Green to straighten out a car loan. During their meeting,
Arnold executed a "quit slip." When questioned as to the
reason for this personnel action, Arnold replied that "the
school board was putting pressure on me. They said that I
either sign a quit slip or go back to Duncan's and work."
After signing the slip, Arnold continued to support the
strike against Respondent while he remained in the employ
of the School Board. He further testified that he was not at
any time informed by his new employer that his job had
become permanent, and that he never returned to seek
reemployment with Respondent. When queried as to
whether he was interested in reinstatement at the foundry,
Arnold replied that "The first year I was; but after it was
like getting along for more than a year, I figured that I had
lost all my seniority and everything I had coming, and I
wasn't interested any more after one year."
LeRoy Fritz, the Alton School Board's administrative
assistant for personnel, was called to the stand by Respon-
dent and was interrogated about the contents of Arnold's
personnel record and the role that Fritz played in hiring
Arnold. Fritz testified that Arnold was hired on May 1,
1967, at a salary of $382 per month and, by July 1, 1968, he
had received wage increases which brought his monthly
salary to $409. In addition, Arnold received paid vacations,
sick leave, and paid holidays. According to Fritz, it was his
understanding that Arnold became a "regular employee"
on the date of his hire. However, Fritz, who on May 1,
1967, was the director of music and school-community re-
lations and was not ' involved in personnel matters, ac-
knowledged that it was Assistant Superintendent Luman
who actually hired Arnold, and that Luman had men-
tioned to Fritz that "quite a few Duncan people were ap-
plying."
Personnel Manager Green testimonially recalled that, in
June 1967, he had a conversation with Arnold in which the
latter informed him that Arnold was quitting the foundry,
although Green initially maintained that Arnold made no
mention that he was required to present a "quit slip" to his
new employer which Green acknowledged was the Alton
School Board. Green then stated that "I mentioned that I
was surprised or sorry because of his length of service,
length of time that he had been there. He said, `I have not
been very active in the union,' but he said, `I am afraid to
cross the picket line.' I asked why he was quitting and he
said he was taking other work. Again, he said, `I sure don't
want to sign a slip to show that I am quitting,' but he did
come in and say he was quitting. This was his way of say-
ing that he didn't want to quit." Green later reiterated that
Arnold "disliked signing the quit slip and I took that to
mean that he didn't want to leave." When pressed on the
issue, Green conceded that he could not remember wheth-
er Arnold had informed him that a "quit slip" was needed
by his new employer. Accordingly, I credit Arnold's testi-
mony and find that, on June 19, 1967, he told Green that
he was in need of the slip because "the school board was
putting pressure on me."
In sum, I find that, although Arnold obtained a job with
the School Board on May 1, 1967, he continued to support
the strike throughout its duration and harbored the hope of
returning to Respondent's employ because of his extensive
seniority, until the strike terminated and he believed that
he "had lost all my seniority and everything I had coming."
I further find, based upon his credited testimony, that As-
sistant Superintendent Luman hired Arnold on a "trial"
basis. I am not persuaded that Arnold's execution of the
"quit slip" on June 19, 1967, was either voluntary or mani-
fested his intention permanently to abandon his "employ-
ee" status with Respondent. I am fortified in this conclu-
sion by the slip opinion of the United States court of
appeals in this proceeding, dated April 6, 1972, in which
the court noted:
The Company objected most vehemently to the fact
that the Regional Director counted the ballots of six
employees who had executed `quit slips' and accepted
employment elsewhere. The first employee named by
the Company was Eddie Arnold who, according to the
statement, formally resigned on June 19, 1967, with-
drew from the profit sharing plan, and was perma-
nently employed by the Alton School Board.
The Regional Director verified the fact that Arnold
had executed a quit slip and withdrew from the plan;
he nevertheless concluded that Arnold had not volun-
tarily resigned. His investigation disclosed that Arnold
had approximately 16 years of seniority at Duncan
and his pay scale was about $2.58 per hour. His substi-
tute employment with the School Board was as a jani-
tor earning $360 a month. It is no doubt correct that
the new job was `permanent' in the sense that Arnold
would retain it if nothing better was available; it
seems equally clear, however, that the Regional Direc-
tor could properly conclude that Arnold told the truth
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he said that he would prefer to return to Dun-
can. The Regional Director concluded that the quit
slips executed by Arnold and the others were consis-
tent with a need to establish eligibility for interim em-
ployment elsewhere and did not necessarily demon-
strate a permanent resignation.
Accordingly, I conclude that Arnold remained an "em-
ployee" of Respondent on September 13, 1967, and still
occupied that status until the strike terminated. I shall
therefore award him vacation pay for 1967 in the amount
set forth below.
2. Ulysses S. Bowie
Bowie died prior to the hearing and the sole evidence
respecting his vacation pay eligibility derives from the un-
disputed testimony of his widow, Rose V. Bowie. Based
thereon, I find that, at the inception of the strike on Janu-
ary 29, 1967, Bowie was employed by Respondent as a
molder and earned an hourly wage of $2.73. During the
entire course of the work stoppage, he walked the picket
line. On an undisclosed date in September 1967, Bowie
enrolled in a federally funded school to study automotive
mechanics, a course which lasted until June 1968, and was
afforded a $30 per week transportation allowance. In July
1968, he obtained a job with Chevrolet Shell, a Division of
General Motors Corporation. He was not offered reinstate-
ment with Respondent until September 9, 1969.
On the evidence thus presented, I find and conclude that
Bowie did not obtain regular, permanent, and substantially
equivalent work, and did not abandon his engagement in
the strike, between September 13, 1967, and the strike's
termination on January 31, 1968. I therefore conclude that
his estate is entitled to the sum of vacation pay listed be-
side his name below.
3. Donald Bryant
At the time the strike began at Respondent's foundry,
Bryant was employed at the installation as a hand grinder
on castings and received the hourly wage rate of $2.66. He
joined the work stoppage at its commencement and picket-
ed for 4 months. In either March or April 1967, he ob-
tained employment with John Deere Company as a tractor
mechanic, and was paid $75.00 per week for 40 hours of
work, or approximately $1.87 an hour. Bryant's testimony
is uncontradicted and I find that, when he was hired by
Deere, he was told that the job was a temporary one.
Bryant advised Deere "that I was on strike, and that if I
got called back, the strike was over and I got called back,
that I would not, that I wouldn't be a permanent employ-
ee."
About a week after obtaining work with Deere, Bryant
quit his job and procured a similar position with Taylor
Implement Company at the same rate of pay. It is uncon-
troverted and I find that, when hired by Taylor, he was
apprised by the owner that the job was temporary and
would last for only 2 or 3 months. Bryant left Taylor's
employ in May 1967 to take a job as a tractor mechanic
with the Oliver Implement Company at a starting pay of
$2.75 an hour. When hired, Bryant was told "that I had a
job as long as they , as long as he was in business , and I told
hun that I was out on strike from [Respondent], and that if
they got it settled and went back to work, that I would go
back to Duncan's." Bryant worked for Oliver until 1968
when the business was sold . Inasmuch as the new owner
possessed mechanical skills, Bryant lost his job . He appar-
ently was out of work until 1969, when he obtained a posi-
tion with another company.
It is Bryant's undenied testimony and I find that he nev-
er signed a "quit slip" for Respondent, and had never in-
formed Respondent that he had no intention of returning
to its employment rolls. Sometime in 1969 , Bryant rejected
an offer of reinstatement at Respondent 's plant.
I find that, at no time, on or after September 13, 1967,
did Bryant procure permanent and substantially equivalent
employment with another employer, and that, at all times
material herein, he fully intended to resume his employ-
ment with Respondent when the strike ended. I therefore
conclude that Bryant was an "employee" of Respondent
between the dates of September 13, 1967, and January 31,
1968, and is entitled to the sum of vacation pay listed next
to his name below.
4. Paul Cappel
It is undenied and I find that Cappel worked for Re-
spondent for 14 years and was a plant clerical employee at
the commencement of the strike on January 29, 1967, earn-
ing $2.68 an hour for a 45-hour week. He joined the strike
at its inception and continued actively to support it until its
abandonment on January 31, 1968. During the work stop-
page, he obtained temporary employment through a local
construction union and toiled for approximately four dif-
ferent employers as a common laborer at an hourly rate of
$4 on a sporadic basis. Cappel did not return to work with
Respondent at the end of the strike, testimonially explain-
ing that "I would say during the strike if it had been set-
tled, and' picketing, why I would have went back; but, af-
ter, no."
I find and conclude that Cappel is entitled to the vaca-
tion pay calculated below because, in my judgment, he
failed to procure permanent and substantially equivalent
employment during the entire span of the strike, inclusive
of the critical period from- September 13, 1967, to January
31, 1968.
5. Ollie Covington
Covington had been employed by Respondent as a chip-
per and received $2.62 per hour when the strike began. It is
undisputed and I find that he joined the work stoppage
and picketed from 6 to 8 months thereafter. In March or
April, after an unsuccessful search for interim employ-
ment, he went on state aid and was referred to the City of
Alton Park Department where he was paid $278 per
month. On September 1, 1967, he received a 6-month pro-
bationary job with the Alton Recreation Department as a
temporary, seasonal employee, paying $1.85 an hour. At
the time he applied for the latter position, he was tendered
a temporary slot "because I was on strike, and they offered
me a job, you know, and I didn't have a quit slip from
DUNCAN FOUNDRY AND MACHINE WORKS 779
Duncan, they said, well, they would let me work until the
strike was over. If I wanted to stay on steady, to go through
training, they would give me a better position." Covington
completed his probationary period on March 1, 1968, and
was certified by the State Civil Service Commission on
April 15, 1968, as a permanent member of the cadre, at
which point his pay was escalated from $2.25 to $2.85 an
hour. Rounding out Covington's uncontested testimony, he
returned to Respondent's plant in either October or No-
vember 1967 to check on a loan which he maintained with
the credit union. In the course of his visit, he spoke with
Respondent's Personnel Manager Ephrim Green about
discharging the indebtedness. During their conversation,
"it came up about me going back to work there, and I told
him I would not cross the picket line."
In light of the foregoing, I find and conclude that Cov-
ington did not obtain permanent, substantially equivalent
employment between September 13, 1967, and January 31,
1968, and did not abandon the work stoppage during that
period. I therefore conclude that he should receive the
amount of vacation pay reflected opposite his name below.
6. Lewis Dodge
Dodge toiled for Respondent for 31 years and was a
layout and drillpress man in the machine shop when the
strike began, earning $3.19 per hour. It is undisputed and I
find that he joined the picket line at its inception and en-
gaged in picket duties for an unspecified number of weeks
thereafter. In addition he performed the task of keeping
records for the Union regarding the amounts of money
spent in payment for picketing activities from the com-
mencement of the work stoppage until after its conclusion
on January 31, 1968.
It was stipulated and I find that, on February 16, 1967,
Dodge applied for employment with the Lenhardt Tool
and Die Company. On his application form, he listed Re-
spondent as his former employer but did not state that
reason for leaving work. Dodge was hired by Lenhardt on
February 20, 1967, to perform the same job which he held
at Respondent's foundry, and received an entrance rate of
$3.85 an hour. On September 1, 1967, Dodge was raised to
the rate of $4.20 an hour as required under an existing
contract between Lenhardt and the Union, and this figure
jumped to $4.54 per hour on November 4, 1968. Dodge
continued in Lenhardt's service until November 26, 1969,
when he retired.
Dodge testified that, when he visited Lenhardt's foundry
in quest of a job, he was interviewed by owner Dixie Len-
hardt and the latter's son. It is Dodge's undenied testimony
and I find that, during the colloquy, the elder Lenhardt
expressed his awareness of the strike at Respondent's facil-
ity, and of Dodge 's desire to resume his employment with
Respondent when it terminated.4 In Dodge 's words, "Mr.
Lenhardt brought the subject up ... to begin with, and he
sari, `I'm sure that you would want to go back [to Respon-
dent] with the amount of seniority you've got if this is set-
tled,' and really that's about all I can remember of it. Then
he was aware of the fact that I would go back to Duncan if
it was settled ." Dodge further testified without contradic-
tion , and I find, that he was never told by Lenhardt that his
employment possessed any degree of permanence, or that
he informed anyone at Lenhardt that he intended to re-
main with that enterprise when the strike ended.
On the basis of the foregoing , uncontradicted testimony
of Dodge, I find that he was an "employee" of Respondent
on September 13, 1967, and until the strike 's conclusion on
January 31, 1968, and that he continued as an economic
striker throughout the course of the work stoppage. I con-
clude, therefore, that Dodge should be awarded the
amount of vacation pay for 1967 which appears below op-
posite his name.
7. Richard Dunham
Richard Dunham was employed by Respondent for ap-
proximately a year prior to the commencement of the
strike, and regularly worked in the foundry pouring cast-
ings at an hourly wage of $2.54. It is uncontroverted and I
find that he joined the picket line when the job action start-
ed, and picketed for 8 months. In February or March 1967,
he got a job as a carpenter's helper and laborer with a Jake
Frech, for whom he had toiled in a similar capacity prior to
his employment stint with Respondent, and was paid at the
rate of $2.50 per hour. According to Dunham's undisputed
testimony, "when we were out on strike, I was talking to
him [Frech] at a cafe one morning and he asked me if I
wanted to help them for a while while I was off, so I took
it.... He just asked me if I was interested in helping
them some while I was on strike down there." The employ-
ment with Frechwas far from regular, for the record shows
that Dunham worked but 4 days a week, and was totally
unemployed during the winter and whenever the weather
was inclement. Frech died during Easter of 1969, and,
thereafter, Dunham became self-employed. He was not of-
fered reinstatement by Respondent until August 8, 1969,
which he eschewed.
On the basis of Richard Dunham's uncontradicted testi-
mony, I find that he persisted in the strike after September
13, 1967, and failed to obtain permanent and substantially
equivalent employment with other employers between that
date and the conclusion of the strike on January 31, 1968.
I, accordingly, conclude that he should be paid the sum of
vacation money set forth opposite his name below.
4It should be noted, as found elsewhere in this Decision, that Adolph
Kruse and Wilbert Schwab also applied for and received jobs with Lenhardt
on the same dates. As heretofore found, Dixie Lenhardt knew of the strike
against Respondent because he sought to receive the Union's permission to
cross the picket line in order to obtain some parts from Respondent's plant
Moreover, I have found that Kruse, who was a member of the Union's
negotiating committee , solicited temporary employment for the strikers with
Lenhardt
8. Bernie Gonzales
Gonzales worked at two or three different jobs with- Re-
spondent prior to the strike on January 29, 1967, and
earned $2.69 an hour. He joined the picket line on that
date, and regularly picketed until the middle of November
1967. Thereafter, he supported the strike on weekends until
its termination on January 31, 1968. At the end of Febru-
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 1967, he obtained work as a construction laborer
through the referral hall of a local construction union, and
toiled for 15 to 20 employers on jobs which were generally
of short duration.
It is uncontroverted and I find that, in November 1967,
he applied with the Ford Motor Company for "any" avail-
able position and, on November 14, 1967, he was hired in
the classification of "balance of chassis" at a rate of $3.28,
plus a cost-of-living bonus of 23 cents. On his application,
he made no mention of his prior employment with Respon-
dent. Gonzales' testimony is uncontroverted and I find
that, when he and other applicants were hired, the person-
nel manager "told us that this was just temporary until they
got all of their regular employees back and when they did
get them back, the ones they needed from this bunch they
would keep and the ones they didn't, well, that is, if they
didn't quit the first day, a lot of guys were there half an
hour or five minutes and left." 5 Gonzales was not told
what the term of his employment would be. However, after
90 days, which would fall in February 1968, he completed
a probationary period and was paid at the rate of $3.38,
and received various fringe benefits. Gonzales was contin-
uously employed by Ford thereafter.
In view of Gonzales' undenied testimony that he sup-
ported the strike throughout its existence, that he obtained
sporadic employment in the construction industry from the
end of February until November 14, 1967, and that he was
hired by Ford on the latter date as a temporary employee
and did not reach permanent status until the conclusion of
his probationary period in February 1968, I conclude that
Gonzales remained an "employee" of Respondent on Sep-
tember 13, 1967, and continued in that capacity until the
end of the strike on January 31, 1967. I conclude that he is
entitled to vacation pay in the sum set forth opposite his
name below.
9. Charles Henson
Henson's testimony is undisputed and I find that he
worked for Respondent as a press operator at an hourly
wage rate of $2.73 until the strike. With the institution of
the picket line, he joined the work stoppage and continued
to support it throughout its course. In early February 1967,
the area in which he lived experienced a heavy ice storm.
In quest of part-time work, Henson presented himself to
the local street and water commissioner, was hired as a
common laborer at the rate of $1.75 per hour, and worked
approximately 20 hours a week until February 1968, when
he accepted a full-time job with that employer. When he
first sought employment, he advised the commissioner that
he was on strike at Respondent's plant, and the employing
municipality deferred making him a permanent offer until
the stoppage of work had ended.
In light of the foregoing, I find that Henson was a striker
on and after September 13, 1967, and that he did not pro-
cure permanent and substantially equivalent employment
from that date until January 31, 1968. I conclude that he is
entitled to vacation pay for 1967 in the sum set forth be-
low.
10. Leon Hicks
Hicks had worked for Respondent as a crane operator
on a rotating shift before the strike started and was paid at
the rate of $2.40 or $2.47 an hour. He testified that he
picketed for approximately 4 months, or until May 1967.
The parties stipulated, the record establishes, and I find
that Hicks sought and procured a job with Sterling Steel
Casting Co., along with three other strikers, on April 20,
1967, as a yard laborer at an hourly wage of $2.40.6 His
employment application bore the notation that Respon-
dent was his previous employer and that he was unem-
ployed due to the work stoppage. Pursuant to a labor con-
tract between Sterling and the Union, Hicks became the
beneficiary of a variety of employee-benefits after serving a
probationary period of 20 workdays.
Hicks also testified that, at the time of his employment,
Sterling was aware that he was on strike and he was in-
formed that the yard position was temporary in nature.
However, about 6 or 8 weeks after his employment, Ster-
ling experienced a recession in yard work and Hicks' three
fellow strikers were laid off while he was retained. Hicks
explained this happenstance on the ground that he learned
that a crane operator's classification was open and, being
experienced in that line due to his prior employment as a
crane operator with Respondent, he applied for and was
awarded this job with Sterling. According to Hicks, "They
[Sterling] asked me could I handle the job, you know. They
said they needed a man to work the outside crane and they
wanted to keep me on, you know. . . . I stayed on up
there." When questioned during his examination as to
whether he joined the Union while at Sterling, Hicks made
the curious comment that he had, "After about three
months, after they found out that I was going to stay." (Em-
phasis supplied.)
With the assumption of his new duties as a crane opera-
tor, Hicks' hourly wage was escalated by 15 cents, and he
worked regularly and continuously for the company until
the end of 1968, when he was furloughed because of lack
of work. He was thereafter recalled to duty by Sterling.
After a careful review of the evidence relating to Hicks,
I am convinced and find that, in mid-1967, Hicks applied
for and won a position with Sterling as a crane operator,
the same job he had held with Respondent, and was
awarded a wage increase of 15 cents an hour, giving him an
hourly rate which exceeded the compensation paid by Re-
spondent. I find that, upon embarking on this job with
Sterling and joining the Union, he decided to remain and
did remain in Sterling's employ until long after the strike
against Respondent had been abandoned. Accordingly, I
conclude that, prior to September 13, 1967, Hicks had ob-
tained regular, permanent, and substantially equivalent
employment with Sterling and thereby relinquished his sta-
tus as an "employee" of Respondent. I therefore conclude
6 Hicks' memory regarding the dates of his employment with Sterling was
By this, Gonzales meant that Ford's employees had concluded a strike extremely vague and confusing, as was his recollection of his entrance sal-
against that company on November 13, 1967, and had begun to return to ary. Hicks testified that he was paid $2 87 per hour when he began, while his
work personnel record shows the figure to be $2.40.
DUNCAN FOUNDRY AND MACHINE WORKS
that Hicks is not eligible for vacation pay for 1967.
11. Adolph Kruse
Kruse, who worked for- Respondent for 40 years, is an-
other discriminatee who died between the end of the work
stoppage and the hearing herein. His widow, Molly Kruse,
testified that, when the strike began, her husband joined
the picket line, although she was unable to recall the period
of time in which he picketed. On February 16 or 17, 1967,
he obtained a job with Lenhardt Tool and Die Company,
was laid off on March 7, 1967, and then procured a posi-
tion with a firm called Rotary Rand, Inc., on a temporary
basis. In connection with Kruse's employment with Len-
hardt, discriminatee Wilbert Schwab testified that he ac-
companied Kruse for an interview with Dixie Lenhardt,
the owner of the company. It is uncontroverted and I find
that, during the interview, Lenhardt was aware that both
Kruse and Schwab were on strike at Respondent's plant
because Lenhardt "had parts at Duncan Foundry to be
machined and he wanted these out, permission to go
through the picket line to get these parts. He contacted the
union to get permission to go into the foundry." Schwab
further related that, in his conversation with the Union,
Lenhardt was asked by Kruse, a member of the Union's
negotiating team, "if it would be possible to get temporary
employment for some of the men. When we were inter-
viewed, our years of experience and the fact that it was
temporary employment were all discussed." According to
Schwab's undenied testimony, when he and Kruse were
hired by Lenhardt, it was understood by and between the
parties that their employment tour would be temporary in
nature.'
Regarding Kruse's employment with Rotary Rand, Otto
F. Becker, the office manager, testimonially recalled that
he had a brief conversation with Kruse during his job inter-
view and that Kruse was hired on April 10, 1967. Becker
could not recall whether Kruse made any mention during
the entrance interview about being on strike at
Respondent's installation. However, Becker acknowledged
that he did not hire Kruse, but summarily referred him to
Respondent's owner for a concluding interview after he
learned that Kruse had been a former employee. Becker
further testified, on the basis of company records, that
Kruse completed his probationary period on May 12, 1967,
received 10-cent wage increases through October 1967, was
laid off on December 29, 1967, and was rehired on June 14,
1968. However, Becker's testimony does not establish that
Kruse's employment was on a permanent basis.
Ephrim J. Green, Respondent's personnel manager, re-
called that, on July 8, 1967, Kruse visited the former's of-
fice and inquired about the payment of his profit share
which had accrued because Kruse "didn't think he would
be back to work." However, Green admitted that Kruse
7 The parties stipulated that, on the basis of Lenhardt's personnel records,
Kruse applied for employment with Lenhardt on either February 16 or 17,
1967, listing Respondent as a former employer with the notation "close
down plant or shop" as the reason for leaving. Kruse, according to the
records, was hired on February 20, 1967, as a specialist earning $3.85 per
hour. He was terminated on March 7, 1967, with no reason assigned for the
termination.
781
had never been recalled to work with Respondent since the
inception of the strike. Finally, Buddy W. Davis, a union
staff representative, testified that Kruse was a member of
the Union's negotiating team which met and bargained
with Respondent until September 1967, and that the Union
compensated him for the wages he lost during his interim
employment for time spent while engaged in the bargaining
process.
On the basis of an amalgam of the foregoing evidence; I
am not convinced that Kruse either abandoned his partici-
pation in the strike on or after September 13, 1967, or ob-
tamed permanent and substantially equivalent employ-
ment elsewhere during the period ending January 31, 1968.
I therefore find and conclude that Kruse' s estate is entitled
to the vacation pay for 1967 which is set forth below oppo-
site his name.
12. Carl Patton
Patton was employed as a laborer by Respondent when
the strike occurred and earned $2.47 per hour. He testified
that he picketed for 6 months after the commencement of
the strike. Sometime prior to March 15, 1967, Patton went
to a local union hiring hall, apparently in search of work,
and learned that a vacancy existed in the ranks of the Illi-
nois Terminal Railroad. On March 15, 1967, Patton was
interviewed by a personnel officer of the railroad and was
told, according to Patton, that "It was temporary. They
hired help for the summer, and they still do that. While I
was at the steel mill hall, and they said they were going to
be hiring down there for the summer. . . . That day they
took me right over, and I took my physical and everything,
but they told me that it is just a division gang that they put
on to put in railroad ties through the summer , and they do
lay off, you know, in the fall, and they had a bunch of guys
retire, and I was lucky enough to stay." In October. 1967,
Patton stated that he was offered and accepted permanent
employment with the Illinois Terminal Railroad.
At the hearing, the parties stipulated that, based on Illi-
nois Terminal's records, Patton applied for work on March
14, 1967, and was hired as a laborer with a seniority date of
March 20, his first day of work. On his application form,
Patton indicated that he had worked for Respondent and
that his reason for leaving was due to the strike. Patton's
entrance rate of pay was $2.67 per hour for a 40-hour week,
and the hourly rate reached the figure of $3.05 by January
1, 1969. He satisfactorily completed a 60-day probationary
period, and was awarded many fringe benefits pursuant to
a contract between Illinois Terminal and a labor organiza-
tion, some of which exceeded those granted by Respon-
dent. From March 20, 1967, until the date of the hearing
herein, Patton worked continuously for that company
without experiencing any layoffs. The parties further stipu-
lated that John W. Horan, the director of labor relations
and personnel for Illinois Terminal, although not directly
involved in the hiring of Patton, would have testified if
called to the stand that "the company's policy in 1967 was
not to hire full time temporary employee help and that
record shows Patton was hired full time."
In view of the stipulation of the parties, I am unwilling
to credit Patton's testimony that, when he was employed
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the railroad, he was told that the job was merely "tem-
porary" and would last only until the fall. By May 1967,
Patton had passed his probationary test and began to re-
ceive the full benefits of the collective -bargaining agree-
ment. He worked regularly and continuously with Respon-
dent since his date of hire on March 20 , 1967, which also
was the predicate for his seniority. Under the circum-
stances, I conclude that Patton accepted regular, perma-
nent, and substantially equivalent employment with Illi-
nois Terminal Railroad prior to September 13, 1967, and
that he, therefore , was. not an "employee" of Respondent
on and after that date. I shall, accordingly, deny him a
vacation payment for 1967.
13. Robert C. Ragan, Jr.
Ragan's testimony is uncontradicted and I find that Ra-
gan toiled for Respondent for 11 years and , on January 29,
1967, when he joined the strike, he was employed as a
crane operator and was paid $2.85 an hour. He continuous-
ly picketed until sometime in November 1967. In early
February 1967, he obtained a temporary job with Hutton
Ford earning $40 per week for a 40-hour week. This job
lasted for approximately 2 weeks. Thereafter, he obtained
jobs with at least 13 construction firms as a common labor-
er, but did not work on a steady basis. After the: strike
ended on January 31, 1968 , he returned to the plant and
spoke to Respondent's Personnel Manager Ephrim Green
about returning to work . Green did not reinstate Ragan
because "they [Respondent] didn't have enough work to
call me back right then, at that time." Ragan was not of-
fered reinstatement by Respondent until 1969 when he
spurned working for his former employer.
In light of the foregoing undenied testimony , I find and
conclude that Ragan continued to support the work stop-
page on and after September 13, 1967, and did not obtain
permanent, equivalent employment thereafter in the salient
period. Accordingly, I conclude that Ragan is entitled to
vacation pay for 1967 in the amount indicated below.
14. Donald Reynolds
Reynolds' testimony is undenied and I find that he
worked a split shift for many years for Respondent as a
janitor cleaning the bathhouse and the main office. With
the commencement of the strike on January 29, 1967, he
walked the picket line and served in the Union's soup
kitchen for- 6 or 7 months thereafter. In either March or
April 1967, he took his car in for service at Walts Oldsmo-
bile and, while the repair was being attended to, he en-
gaged in a conversation with the service manager in which
Reynolds mentioned that he was on strike and out of work.
The service manager inquired as to whether Reynolds de-
sired to work for the agency washing cars. Reynolds
thought the manager was jesting, but when the latter as-
sured him, "No, we could use you for a while to wash
cars," Reynolds accepted the position. Reynolds worked in
this capacity for a few months , and was then laid off for a
few days. He returned to work until August 1967, when the
agency's employees embarked upon a work stoppage. A
month later, he was recalled to work and stayed with that
company until 1969.
Reynolds testified and I find that he understood that his
employment with Walts Oldsmobile would be on a tempo-
rary basis because "I told them I just wanted to work until
I was called back to [Respondent ] and that is what I told
him." According to Reynolds, "The boss, Dave Wilson was
the manager , he -knew I was going to go back , if I was
called back to Duncan , because he.talked to me about I
could make a pretty good career there." When the strike- at
the automobile agency terminated, Reynolds was asked to
stay on but he stated that "my mind wasn't made up to
stay because I said I felt I had a lot of years in at Duncan
and I would have liked to have gone back." Reynolds was
never recalled to work by Respondent, nor did he reapply
for his former position because, in his words , "I figured I
would be called back if they wanted me to come back."
I find that Reynolds joined the picket line on January
29, 1967, and actively supported the strike by picketing and
working in the union kitchen until the end of June.or July
1967. Based on his uncontroverted testimony , he continued
to throw his lot in with the Union throughout the strike
and obtained temporary employment with Walts Oldsmo-
bile in anticipation of his recall to work with Respondent
at the strike 's end . I conclude that Reynolds was an em-
ployee in strike status on and after September 13, 1967,
and, during the material period , had failed to gain a perma-
nent, substantially equivalent position elsewhere . Accord-
ingly, I conclude that he is entitled to vacation pay in the
amount listed beside his name below for 1967.
15. Wilbert F. Schwab
Schwab had been employed by Respondent as a machin-
ist for 14 years when the strike began at its plant, receiving
the rate of $3.14 an hour. He picketed until May or June
1967, and, thereafter, he paid other strikers to perform this
chore for him until July or August 1967. The parties stipu-
lated and I find that, on February 16, 1967, he applied for
a job with Lenhardt Tool and Die Company, together with
Adolph Kruse , and was hired as a machinist at the starting
rate of $3.85 per hour with a 10-percent shift differential
for working nights. The completed application form, while
listing Respondent as a former employer, contains no in-
formation as to Schwab 's reason for leaving Respondent's
employ. It was further stipulated and I find that, on Sep-
tember 1, 1967, Schwab received an increase in wages
which brought his hourly rate to $4.20 plus the night shift
premium of 10 percent, and was afforded substantial over-
time work. Schwab fractured his leg on March 8, 1968, and
returned to Lenhardt's employ on November 15, 1968,
where he worked until January 14, 1969, when he left to
accept a position with LaClede Steel Company.
Schwab testified that, when he and Kruse applied for
work with Lenhardt, they informed that employer that they
were on strike at Respondent's plant and that they sought
temporary employment. However, unlike Kruse, who
worked but 84 hours with Lenhardt's, Schwab not only
labored steadily for that company until March 8, 1968,
when he broke his leg, in the same job as he held with
Respondent, but by September 1, 1967, his hourly wage
rate reached $4.62, which was $1.48 more than he earned at
DUNCAN FOUNDRY AND MACHINE WORKS
Respondent's plant without regard to the substantial over-
time for which he was paid. Moreover, Schwab further tes-
tified that, after the strike terminated, he did not apply for
reinstatement with Respondent because "There was more
men with seniority than I that had not had a chance to go
back and I had employment so I never responded." (Empha-
sis supplied.) Furthermore, Schwab's identification with
the work stoppage ceased in July or August 1967, at which
time he stopped paying others to picket for him.
In view of Schwab's testimony and the stipulation of the
parties, I find that, on February 20, 1967, Schwab obtained
permanent, regular, and substantially equivalent employ-
ment with Lenhardt Tool and Die Company, and that, in
July or August, he abandoned his interest in the strike.
Accordingly, I conclude that Schwab was not an "employ-
ee" of Respondent on and after September 13, 1967, and
that he is disentitled to vacation pay for 1967.
16. Nathaniel Sheppard
Prior to the commencement of the strike, Sheppard
worked for Respondent as a chipper and was paid $2.67 an
hour. Sheppard testified that he joined the picket line for 2
months, and then paid someone to perform this duty for 3
or 4 months more. During the strike, he obtained a part-
time job with a furniture company in order to pay off a bill
which he owed to the store. Sheppard stayed on this job for
2 or 3 weeks, delivering ^ furniture for an hourly wage of
$2.00 and working approximately 20 hours per week.
Sheppard,further testified that, in March 1967, he was
interviewed for a job with Chevrolet Shell, a Division of
General Motors Corporation, by a Leo Taylor. According
to Sheppard, Taylor reported at the interview that "the job
was temporary at the time . They only had a contract
through to November. They might extend it but he said he
didn't know." Sheppard was hired as a press operator at
the rate of $3.38 per hour, and worked until December
1969 when the plant closed. After 90 days of employment,
he joined an incumbent union and received wage increases
periodically until his terminal hourly rate was $4.10. Shep-
pard stated that he worked regularly and continuously dur-
ing his entire tour with Chevrolet Shell.
James H. Gleason, Jr., Chevrolet Shell's supervisor of
hourly personnel, testified without contradiction, and the
personnel records of that enterprise establish, that Shep-
pard applied for a job on March 6, 1967, and was hired on
March 29, 1967, as an assembler and/or machine operator
at a base hourly rate of $2.91-, plus- a 21-cent cost-of-living
allowance . His seniority dated from March 29, 1967. By
the end. of 1967, having fulfilled his probationary period,
Sheppard earned an hourly wage of $3.75. Although Glea-
son acknowledged that applicants were told that Chevrolet
Shell was under contract with the U. S. Government and
that the work would last only during the duration of that
agreement, his testimony is uncontroverted and I find that
all applicants were considered by his company as perma-
nent employees and no individual was employed on a tem-
porary basis.
On the basis of the foregoing, I accept Gleason' s testi-
mony that Sheppard and all other applicants became per-
manent employees of Chevrolet Shell on the dates of their
783
hire, and I do not credit Sheppard 's contrary assertions
premised allegedly on the information obtained during his
interview with Taylor. I find that, on March 29, 1967,
Sheppard was hired by Chevrolet Shell as a regular, perma-
nent employee in a substantially equivalent position as that
held with Respondent, that he actively abandoned the
picket line on this date , and that he continuously worked
for that company until December 1969. I therefore con-
clude that Sheppard was not an "employee" of-Respondent
on and after September 13, 1967, and is disqualified from
receiving vacation pay for 1967.
17. Eddie Simmons
Eddie Simmons worked for Respondent as a molder
prior to the work stoppage, and was paid $2.61 an hour. He
picketed for about 5 months, and then abandoned this ac-
tivity. He testified that, on March 17, 1967, he obtained a
job with Chevrolet Shell cleaning the offices at night for
$1.38 per hour. According to Simmons, he was told during
his entrance interview that "they [Chevrolet Shell] had a
year's contract, up until November 1967." However, he ac-
knowledged that he was also informed that the contract
"could be" extended, that "There wasn't anything defi-
nite," and that, if the contract was renewed, "They would
have more work." In his application, Simmons noted -that
he had worked for Respondent and that he was on strike
against the foundry. He testimonially_related, additionally,
that he did not tell Chevrolet Shell that he would toil for it
only-for so long as the strike persisted. Following his initial
cleaning job, Simmons was transferred to the duties of ma-
chine operator and paid at the rate of- $3.28 an hour. He
received wage increases thereafter and, on May 7, 1968, he
was promoted to foreman. He left his employment as a
supervisor with Chevrolet Shell on December 31, 1969, and
returned to General Motors' hourly employment rolls.
As indicated elsewhere, Chevrolet Shell's Supervisor
Gleason testified without dispute, and I have found, that
all applicants for employment are hired on n-a permanent
basis, and no temporary work is available. Moreover, when
hired, Simmons was not told that he would be laid off in
November 1967. On the foregoing state of the record, I am
persuaded and find that on March 1967 Simmons received
regular, permanent, and substantially equivalent employ-
ment with Chevrolet Shell, abandoned the strike a few
months later, and remained in that enterprise's employ.
Accordingly, I conclude that he was not an "employee" of
Respondent on and after September 13, 1967, and is disen-
titled to vacation pay. -
18. Henry Smith
Smith is another discriminatee who, although subpe-
naed, did not appear at the hearing. The only evidence
relating to the vacation pay eligibility of this individual
comes from the testimony of Respondent's Personnel Man-
ager Green and the personnel records of Chevrolet Shell.
Green testified that no "quit slip" appeared in Smith's
file upon inspection, that Smith had not worked for Re-
spondent since the inception of the strike, and that Green
had not observed him on the picket line. Chevrolet Shell's
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records demonstrate that, on March 31, 1967, Smith filed
an application for employment but did not list Respondent
as a former employer nor did he indicate that he was a
striker. He was hired on April 13, 1967, his seniority date,
as an assembler and/or machine operator and received pe-
riodic wage increases until, by December 18, 1967, he at-
tained an hourly rate of $3.01. The records also show that
Smith worked regularly and continuously for that compa-
ny until he was laid off on December 11, 1969, due to the
expiration of the Government contract.
As heretofore found, all employees hired by Chevrolet
Shell were taken aboard as permanent employees. No evi-
dence to the contrary has been adduced Accordingly, I
conclude that Smith procured regular, continuous, and
substantially equivalent employment with Chevrolet Shell
on April 13, 1967, and was not an "employee" of Respon-
dent on and after September 13, 1967. 1 therefore conclude
that he is not entitled to any vacation pay for 1967.
19. Ray Tolbert
This claimant worked before the strike with Respondent
for 12 years as a crane operator on a rotating shift, and was
paid $2.85 an hour. He testified without contradiction, and
I find, that he actively picketed throughout the strike. Dur-
ing the work stoppage, he obtained employment on refer-
rals by a local construction union as a construction laborer
and earned $34 for a full day's work. However, this em-
ployment was sporadic and, while his longest job lasted for
3 months, Tolbert did not work every day and sometimes
would experience weeks of unemployment. While on these
jobs, he did not acquire seniority. On January 4, 1968, he
was awarded a part-time position with the City of Roxana
Street Department which was made permanent the follow-
ing April.
In view of the foregoing, including the facts that Tolbert
actively supported the strike for its entire term, and did not
obtain regular, permanent, and substantially equivalent
employment on and after September 13, 1967, and before
January 31, 1968, I conclude that he remained an "employ-
ee" of Respondent after September 13, 1967, and during
the critical period, and that he is entitled to the amount of
vacation pay set forth opposite his name below.
20. James E. Walker
Although duly notified of the pendency of the hearing
herein, Walker failed to appear and be examined. The only
evidence relating to him was elicited from the testimony of
James Gleason, Jr., supervisor for the hiring of hourly per-
sonnel at Chevrolet Shell, a Division of General Motors
Corporation, and Ephrim Green, Respondent's personnel
manager.
Gleason testified that he interviewed Walker for employ-
ment with Chevrolet Shell which manufactured missiles for
the Unites States Army, and that Walker was employed on
April 20, 1967, as an assembler and/or machine operator at
a base rate of $2.91 per hour. He was employed by Chevro-
let Shell until August 22, 1969, when he voluntarily quit
and left the area. During the course of his employment,
Walker was awarded wage increases on May 20, July 16,
and October 16, 1967, and January I and November 25,
1968, at which point his hourly rate was $3.49. According
to Gleason, all employees at Chevrolet Shell were hired
exclusively for permanent positions, and Walker was
employed with this understanding. Gleason further related
that he was unaware that Walker had previously worked
for Respondent.
Green stated on the stand that he assumed that Walker
hadjoined the strike on January 29, 1967, although he nev-
er observed Walker's presence on the picket line, and never
heard from Walker thereafter. Green added that
Respondent's personnel files did not contain a "quit slip"
for this individual.
Due to Walker's absence from the witness stand, I can
only conclude, on the basis of Gleason's and Green' s testi-
mony, that Walker left Respondent's employ on January
29, 1967, and gained regular , permanent employment with
Chevrolet Shell from April 20, 1967, until he quit on Au-
gust 22, 1969, inclusive of the critical period between Sep-
tember 13, 1967, and January 31, 1968. I therefore con-
clude that Walker was not an "employee" of Respondent
on and after September 13, 1967, and I shall deny vacation
pay to him for 1967.
21. T. Willie Walker
T. Willie Walker labored for Respondent as a chipper
and was paid at the rate of $2.62 an hour until he joined
the strike. He testified that he picketed from that date until
May 1967 While he was employed by Respondent, he
worked on a sporadic, part-time basis for an automobile
dealer washing cars. On April 24, 1967, he' applied for a
position with Chevrolet Shell and was hired on May 8,
1967, as a machine operator at a starting rate of $3.33 per
hour. During his employment interview, Walker was in-
formed that Chevrolet Shell "didn't know how long the job
would last. They wasn't sure whether it would be a year or
two years or what, because it was what you would call a
government job, making ammunition for the army." Walk-
er admitted that, during this session, he did not tell the
interviewer that he had previously worked for Respondent
or that he was on strike. With the acquisition of the job at
Chevrolet Shell, Walker ceased picketing. Walker received
periodic wage increases until he was laid off on December
11, 1969, when work ran out and the plant was closed.
Rounding out his testimony, Walker disclosed on the stand
that he received an inquiry from Respondent's Personnel
Manager Green in either 1968 or 1969 as to whether he
wished to return to work with Respondent, and Walker
replied that "I told him I couldn't return under the condi-
tions."
In light of the foregoing recorded evidence, I find that
Walker abandoned his participation in the strike on May 8,
1967, when he accepted a job with Chevrolet Shell. Despite
the fact that the company had geared its production to
U. S. Army needs, its contract with the Government con-
tained an indefinite terminal date which, in Walker's case,
provided him with more than 2-1/2 years of permanent,
uninterrupted, and substantially equivalent work. Al-
though offered reinstatement and job security by Respon-
dent in either 1968 or 1969, and after the strike had termi-
DUNCAN FOUNDRY AND MACHINE WORKS
nated, Walker refused the offer "under the conditions."
Accordingly, I conclude that Walker was not an "employ-
ee" of Respondent during the critical period from Septem-
ber 13, 1967, to January 31, 1968, and is therefore not enti-
tled to vacation pay for 1967.
22. Burrel Wilkins
Wilkins died after the strike began and before the hear-
ing in this proceeding. While alive, he worked for Respon-
dent as a molder. According to the testimony of his wife,
Elsie, Wilkins joined the strike and picketed for an unde-
fined span of time. He obtained a job with Chevrolet Shell
in April 1967. She testified that her husband's tenure at the
plant was temporary because she claimed that she had seen
a document received from Chevrolet Shell which bore out
her assertion . When asked whether she could produce this
document at the hearing, Mrs. Wilkins stated that her
home had been burglarized and that the item was missing.
Mrs. Wilkins finally stated that her husband had been em-
ployed by Chevrolet Shell for only 5 or 6 weeks when he
first commenced work at that plant, and did not achieve
permanent status until the fall of 1968, probably in August
of that year.
Mrs. Wilkins' testimony regarding her husband's work
history with Chevrolet Shell is belied by the records of
General Motors and the credited testimony of Chevrolet
Shell's employment supervisor, Gleason. These records
clearly demonstrate that Wilkins was hired by Chevrolet
Shell on April 20, 1967, as a handler-machine operator at
the base rate of $2.91 an hour plus a cost-of-living allow-
ance of 21 cents. On his employment application, he did
not list his prior employment with Respondent. Following
his hire, Wilkins received 5-cent increases at the end of 30
and 90 days, and other increases throughout his regular,
continuous employment with that company which termi-
nated on December 11, 1969, when Chevrolet Shell ceased
business operations. Moreover, Gleason testified that the
company had no practice of sending notifications to em-
ployees concerning the permanency of their employment,
785
and that employees are led to understand during their en-
trance interview that their job was of a permanent nature,
subject to the future termination of the Government con-
tract on which they were working.
On the record before me, I find that , on January 29,
1967, Wilkins joined the strike and thereafter picketed. I
find that, on April 20, 1967, he obtained a regular , perma-
nent, and substantially equivalent job with Chevrolet Shell
and that he continued to work for that organization until
December 11, 1969 . I therefore conclude that , having ac-
quired this position , Wilkins was not an "employee" of
Respondent on and after September 13, 1967, and is not
entitled to vacation pay for 1967.
Upon the basis of the foregoing findings and conclu-
sions, I recommend that Respondent 's obligation to make
whole those striker-employees whose entitlement to vaca-
tion pay for 1967 has heretofore been defined will be dis-
charged by payment to them of the amounts set forth op-
posite their names listed below, together with interest
thereon at the rate of 6 percent per annum , calculated in
the manner set forth in Local 138, International Union of
Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk
Contractors ' Association, Inc., et al.), 151 NLRB 972 ( 1965),
less any lawfully required tax withholding.
Walter L. Alexander $ 195.60
Eddie W. Arnold 327.60
Al D. Bond 110.40
Ulysses S. Bowie 608.00
Richard D . Brown 115.60
Donald E. Bryant 166.80
Paul E. Cappel 221.60
Ollie Covington 190.20
Louis E. Dodge 534.40
Richard G . Dunham 108.80
Bernie M. Gonzales 181.21
Charles F. Henson 116.00
Adolph W. Kruse 553.60
Robert C. Ragan, Jr. 240.00
Donald Reynolds 211.20
Larnell Tharpe 432.00
Ray A. Tolbert 204.80