Gulf & Western Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 7 (N.L.R.B. 1967)

GULF & WESTERN INDUSTRIES
Gulf & Western Industries , Inc., and Its
Wholly-Owned Subsidiary Electro-Chemical
Finishing Company and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW), AFL-
CIO. Case 7-CA-5727
June 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On March 29, 1967, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examimer's Decision and a sup-
porting 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Electro-Chemical
Finishing Company, Middleville, Michigan, its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
IT IS FURTHER ORDERED that the complaint
against Gulf & Western Industries, Inc., be, and it
hereby is, dismissed.
i We agree with the Trial Examiner that Respondent 's true motive for
discharging its 10 employees was their concerted activity in seeking im-
proved wages and working conditions . See Gullets Gin Company , Inc., 83
NLRB 1, enfd. in relevant part 179 F.2d 499, 502 (C.A. 5).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL M. SINGER, Trial Examiner: This case was
heard before me at Grand Rapids, Michigan, on January
17 and 18, 1967, pursuant to a charge filed on September
30 and a complaint issued on November 23, 1966.' The
issues litigated were whether Respondents violated Sec-
tion 8(a)(1) of the National Labor Relations Act: (1) by
unlawfully discharging and refusing to reinstate 10 em-
ployees because they engaged in a protected work stop-
page or strike in support of concerted demands for im-
proved wages and working conditions; and (2) by
threatening employees with disciplinary action or
discharge for wearing union insignia.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
All waived oral argument at the conclusion of the case.
Briefs were received from General Counsel and
Respondent.2
Upon the entire record in the case,3 the briefs, and my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENTS
Respondent Electro-Chemical Finishing Company, a
Delaware corporation with principal office and place of
business in Middleville, Michigan, is engaged at its Mid-
dleville plant (the only facility here involved) in elec-
troplating, metal stamping, and related operations and
processes. It annually ships therefrom to States other
than Michigan products valued in excess of $100,000 and
there receives from States other than Michigan products
valued in excess of $50,000. Electro-Chemical Finishing
Company is a wholly owned subsidiary of Respondent
Gulf & Western Industries, Inc.
Gulf & Western Industries, Inc., a Michigan corpora-
tion with principal office and place of business in
Houston, Texas, through its subsidiaries in various States
(including Michigan, Ohio, Pennsylvania, New York,
Florida, and Connecticut) is engaged in the manufacture
and sale of various manufactured products. It annually
ships through its subsidiaries products valued in excess
of $50,000 to States outside those in which the subsidia-
ries' plants are located.
I find that at all material times each Respondent has
been and is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, herein called the Union, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Work Stoppage 4
1. The concerted demands leading to the walkout
I Unless otherwise noted, all dates herein refer to 1966
2 General Counsel's motion-to strike out Respondent's brief because
filed 3 days late is hereby denied in view of satisfactory explanation.
3 Corrected by an order dated February 28, 1967.
4 The findings in this section are based largely on uncontradicted em-
ployee testimony (adduced by General Counsel) and credited testimony
of Plant Manager De Young (adduced by Respondent).
166 NLRB No. 15
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the afternoon of September 19, Respondent's 5
welders decided to talk to Plant Manager De Young
about better wages and working conditions. The next
morning some of them met outside the plant and, after
punching in for the 7 a.m. shift, went to the company
cafeteria. Seeing 10 of them (out of a total of around 12)
there, Foreman Davies asked them "what was going on,
if [they] were going to work." Told that they "wanted to
see Mr. De Young, plant manager, to get more pay and
safer and better working conditions," Davies said they
would have to do that on their own time and to punch out,
which they did. In the discussion with Davies, the men
identified themselves as a self-organized committee or
group, unaffiliated with the Union, which at that time was
conducting an organizational campaign. They told him
that jobs were available at other plants at higher wages,
that "jobs were a dime a dozen."
Shortly thereafter Superintendent Bartlett approached
the men in the cafeteria. When Bartlett asked them to
return to work, they told him that they would not do so
until they spoke with De Young.
At about 8 a.m., De Young, Bartlett, Davies, and
Company President Hepfer met with the welders in De
Young's office. When the welders said they wanted "to
negotiate" improved wages and working conditions, De
Young reviewed the Company's brief history since 1965,
including its job classification and wage structure, and
then said wages could not be reviewed before May 1967.
The men were assured that faulty equipment was being
corrected. One of the employees declared that the men
would not return to work until De Young "bargained"
about more money. Another pointed out that other facto-
ries were paying higher wages to general laborers than
Respondent was paying to welders. De Young testified
that he told the men, "the decision was theirs" and that
they "could either go back to work and accept what we
had to offer here or go outside and accept these other
positions. " 6 When one of the employees indicated
intention of the group to leave, a management representa-
tive told them to pick up their tools. No employee stated
that he was quitting or terminating his employment with
Respondent;7 nor is there evidence that any employee
sought to be paid off. After leaving the office, most picked
up their personal belongings as suggested by Respondent.
Later the same day (September 20), Respondent
(through Supervisor Davies) made out a "notice of
separation" for each employee, stating in identical lan-
guage that the employee "Quit-without reasonable
notice" because he "want[ed] more money." Each
5 For convenience, Electro-Chemical Finishing Company (whose em-
ployees alone are here involved) will be referred to as Respondent For
reasons hereafter stated (The Remedy section) the Recommended Order
herein will not be directed against Gulf & Western Industries, Inc
6In his preheanng affidavit, De Young had stated "I then
reemphasized our position and told them they should either quit or go
back to work "
7 De Young testified that he could not "honestly recollect anyone say-
ing we are going to quit " Bartlett admitted that none said "they were
quitting their Jobs "
" The employees invojved, all subjects of the complaint herein, are
Bernard Hause, Allen E Hayes, Sr, Phillip Justice, William Klump,
Wayne Martz, Frank Misak, Raymond Sinclair, Darcy R Thomason,
Merle Thompson, and James Vanderwood
9 Based on the credited, mutually corroborative testimony of Klump
and Thomason
10 Eight of the ten employees here involved made or renewed former
applications for jobs (filed before the events here involved) elsewhere on
or around September 20 and 21
"notice" also specified that the employee would not be
eligible for reemployment in the future.8
2. The applications for reinstatement
After leaving the plant, 6 of the 10 employees (Hayes,
Justice, Klump, Martz, Thomason, and Thompson) went
to a downtown restaurant and discussed the situation,
"wonder[ing] if [they] were right in what [they] were
doing." The men decided "to stick it out" and while
"waiting to see how things came out ... [to] go and put
. applications [for jobs] in at other places."9 The men
thereafter in fact made application at neighboring
plants. 19
The next morning (September 21), three of the men
(Klump, Hayes, and Thomason) met in Klump's home,
again discussed the walkout, and decided to talk to De
Young "to see if [they] couldn't get him to change his
mind." Later that morning De Young interviewed each
of the three separately. De Young testified that the men
asked if they "could have [their] old job back" "at the
same status" they had on December 19.11 He further
testified that he told each employee the Company was
"pretty disturbed that an employee would quit, like this";
that if rehired, he would "start over as a new employee,
that is to start over at the new rate ... wait their time for
their insurance program to get seniority and so forth";
and that he would give his decision on taking them back
the next day. On the same day, De Young told a fourth
employee, Misak, "basically the same thing." 12
In the evening of the same day (September 21), Hayes,
Thomason, and Klump again met at the latter's home, this
time with Union Representative Root,13 and decided to
go to the plant together the following morning to get De
Young's decision about returning to work.
The three together saw De Young in the morning (Sep-
tember 22). De Young told them in the lobby he would
"make this short and sweet"-that (in De Young's
words) "our decision was not to rehire any of these em-
ployees" since they "were unhappy at the time they were
with us. they had decided to leave us and walk out of the
plant to accept ... other positions." De Young added.
"what would prevent [the employees] from walking out
again if we would bring them back to work." When he
stated that the men "had the opportunity to go back to
work or quit yesterday," Thomason (according to De
Young) "quite emphatically said we didn't quit." De
Young replied that he would not discuss the matter
further. 14
1 1 According to De Young, Thomason also indicated that he wanted a
wage increase
12 On the previous evening (September 20), when Misak asked Super-
visor Lash about the possibility of returning to work, Lash suggested he
see De Young Misak spoke to De Young twice the next day The first
time, De Young told Misak he was "worried" that if rehired the "men
would quit again "
11 Klump's testimony that the union representative had also attended
the first meeting at Klump's home earlier in the morning appears to be in
error Neither Hayes nor Thomason identified Root as one of the atten-
dants.
14 In his prehearing affidavit , Superintendent Bartlett, who accom-
panied De Young, quoted De Young as saying "he was not going to take
any of the fellows back - that they were unhappy with the pay as it was
when they were working here and what assurance did he have that they
wouldn 't continue to be unhappy if they came back as new employees He
said irregardless [sic] of that the decision has been made that we are not
going to take back any of you fellows Thomason said that they didn't quit
Cliff (De Young) said they were offered the opportunity to go back to
work and in my eyes when you walked out the door you quit "
GULF & WESTERN INDUSTRIES
When employee Misak telephoned De Young the same
morning about returning to work. De Young told him.
"the answer is no ... try some later date." To Martz.
who asked the following week "if he could have his job
back." De Young said, "my decision was not to rehire
any of the employees that had quit." And around the
same time (September 29). Supervisor Davies told em-
ployee Vanderwood who "asked him if [he] could come
back to work." that the Company "wasn't hiring any-
body."
The record does not disclose whether Thompson.
Justice, Sinclair, or Hause made a formal personal
request for reinstatement. 15 De Young indicated at the
hearing that they would have received the same answer
as the others. He admitted that the Company not only had
job openings but was in need of welders when the men
personally applied for reinstatement.
The record establishes that on Friday. September 23,
some of the terminated employees (Klump, Hayes.
Thomason. Thompson. and Justice) picketed the plant.
publicizing the existing dissatisfaction over wages and
working conditions.
3. Conclusions
a. The unfair labor practices
The undisputed facts show that the 10 welders in
question engaged in a work stoppage after reporting to
work on September 20. Within an hour they presented
their grievances on wages and working conditions to
Plant Manager De Young. In attempting to persuade De
Young of the justice of their cause, they pointed out.
among other things, that other employers were paying
higher wages. De Young in effect gave them the choice of
working under existing wages and working conditions or
quitting to seek other jobs. Undesirous of working under
existing conditions, the employees left in concert and
Respondent removed them from its payroll, marking their
individual records "Quit-without reasonable notice"
because they "want[ed] more money."
Section 7 of the Act guarantees to employees the rights
of self-organization. collective bargaining, and "other
concerted activities" for "mutual aid and protection." It
is settled that concerted work stoppages and strikes in
protest of working conditions fall within the ambit of such
protected concerted activity. N.L.R.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9; N.L.R.B. v.
Guernsey-Muskingum Electric Cooperative, Inc., 285
F.2d 8, 12 (C.A. 6). It is also established that "if men
strike in connection with a current labor dispute their ac-
tion is not to be construed as a renunciation of the em-
ployment relation and they remain employees for the
remedial purposes specified in the Act." N.L.R.B. v.
Mackay Radio & Telegraph Co., 304 U.S. 333, 347.
"There [is] clearly no quitting by them except in the
sense that they [refuse] to work as demanded during the
continuance of the strike." J. A. Bentley Lumber Co. v.
N.L.R.B., 180 F.2d 641, 642 (C.A. 5). Consequently,
while an employer, guilty of no unfair labor practice. has
the right to continue business by supplying places left
vacated by strikers, he may not under the Act terminate
'5 Justice was among the employees who picketed the plant on Sep-
tember 23 (infra). Plant Manager De Young 's prehearing affidavit identi-
fies Thompson as another picket.
9
the employee status of striking employees or discriminate
against them because they are on strike. "Any such dis-
crimination in putting them back to work is prohibited by
Section 8." Mackay, supra at 346.
The basic issue here is whether Respondent in fact
discharged the 10 welders because they concertedly
refused to work under Respondent's conditions. Assum-
ing that standing alone and without more, De Young's
September 20 - ultimatum that the welders choose
between status quo or quitting was insufficiently
unequivocal to support a finding of discharge, accom-
panying circumstances leave little doubt that this was
really Respondent's intention. Admittedly. none of the
welders said he was quitting or ending his employment.
They wanted only "to negotiate" or bargain for improved
wages and working conditions. None of them asked to be
paid off, nor was there other manifestation on their part
to call it "quits" for good. 16 Respondent lost no time in
seizing upon the employees' action to precipitately cut off
the employment relationship. As the employees were
merely leaving the office (as distinguished from their
jobs), it directed them to remove their personal gear.
Respondent then sua sponte made uncommunicated,
self-serving entries on its personnel records, branding
them as "quits," and ineligible for future employment
with it, although all were good workers. It thereafter
refused to permit any of them to return to work even
though none had yet been replaced and it admittedly was
in need of welders. Employees who reported to work
within 24 hours were all told that if they were rehired at
all, it would only be as "new" employees with loss of all
accumulated seniority and benefits. Respondent persisted
in its insistence that the welders had "quit" in the face of
employee denials. And Respondent's wholesale ban
against reemployment applied to all, irrespective of their
proven skill and efficiency.
All the circumstances carefully considered. I am per-
suaded that none of the employees quit; that Respond-
ent's described activities were not activated by any belief
that they had quit; and that Respondent discharged these
employees because of their concerted activity in seeking
improved wages and working conditions. Cf. N.L.R.B. v.
Stowe Spinning Co., 165 F.2d 609, 615 (C.A. 4); Staub
Cleaners Inc., 148 NLRB 278. 295. I am fully persuaded
and I further find that when De Young told the welders
reporting to work that "he was pretty, disturbed" at the
walkout, that he was "worried" that if rehired they would
again "quit," and that "what would prevent them from
walking out again if we should bring them back to
work."-De Young was only expressing Respondent's
"resentment against employees for pressing their rights
under the Act." Gullett Gin Company, Inc. v. N.L.R.B.,
179 F. 2d 499, 502 (C.A. 5). I conclude that Respond-
ent's treatment of the employees as "quits" on Sep-
tember 20 was in reality a discharge for engaging in a pro-
tected strike. See Staub Cleaners, supra; Frick Com-
pany, 161 NLRB 1089. Cf. N.L.R.B v. Comfort, Inc.,
365 F.2d 867.875 (C.A. 8).
In reaching the above conclusion I am mindful of the
fact that after leaving De Young's office, many of the weld-
ers made or brought up to date applications for employ-
ment elsewhere. This in itself does not, however, compel
is The record shows that four (Hayes, Klump, Thomason, and Justice)
did not pick up their checks until September 23 when they also picketed
because of De Young's refusal to rehire them
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the inference that they had chosen to terminate the em-
ployer-employee relationship of Respondent. Cf. The
Northern Virginia Steel Corporation, 132 NLRB 714,
731, enfd. 300 F.2d 168. 175 (C.A. 4). There is nothing
unusual for employees idled by work stoppages to search
for other jobs to tide them over a strike, nor, indeed, even
for fully-employed and satisfied employees to seek to
better themselves by applying for positions at other
establishments. Such applications do not establish that
the applicants are necessarily unemployed. This is par-
ticularly true where, as here, the men had decided on this
course while "waiting to see how things came out." 17
Moreover, there is no evidence that Respondent knew of
any job applications when it removed the employees from
its payroll on September 20.
I conclude that the walkout of September 19 was pro-
tected concerted activity; that the employees engaging
therein were economic strikers; and that by discharging
them on September 20 Respondent interfered with,
restrained, and coerced employees in the exercise of
rights guaranteed by Section 7, thereby violating Section
8(a)(1), of the Act.18
b. The welders' offers to return
The law is settled that a strike, although initially un-
dertaken for economic reasons, may be converted into an
unfair labor practice strike where the employer commits
unfair labor practices tending to prolong the strike. Philip
Carey Manufacturing Company, Miami Cabinet Divi-
sion v. N.L.R.B., 331 F.2d 720, 729 (C.A. 6), cert. de-
nied 379 U S. 888; N.L.R.B. v. Giustma Bros. Lumber
Co., 253 F.2d 371, 374 (C.A. 9). On and after the date of
conversion of the character of the strike, its legal posture
is the same as that of a strike initially caused by unfair
labor practices. with the strikers thereafter entitled to
reinstatement upon request. irrespective of their having
been replaced during the remainder of the strike. Mastro
Plastics Corp v. N.L.R.B., 350 U.S. 270, 278.
' r Respondent relies heavily on the testimony of its witness Gerald
Mater , personnel director of Bliss Manufacturing, that all seven or eight
employees whom he interviewed on September 20 and 21 had stated they
"quit" Respondent and that he so noted on their applications Mater con-
ceded that the notations regarding "quitting" were in his handwriting, that
he was uncertain as to the specific answers given him since he "inter-
viewed so many from this place," but recalled "getting basically the same
answer" from all Employee witnesses of General Counsel denied telling
Mater that they had quit , denied knowledge of Mater 's notations on the
applications, and credibly insisted that they had informed him merely that
they had walked out over poor working conditions It is a matter of com-
mon knowledge that persons seeking employment do not volunteer or
even perhaps admit to prospective employers their connection with strike
activity Even assuming that the employees here intentionally concealed
from the prospective employer the fact that they had walked out on their
last employer , and even assuming that they used the euphemism "quit,"
such action while not to be condoned would be understandable in view of
the known reluctance of some employers to hire strikers Moreover, an
employer in need of help may hesitate to employ strikers who may turn
out to be temporary employees - only to return to their old jobs on settle-
ment of the strike
'" Respondent 's alternative theory that even if the employees did not
quit voluntarily they walked out for unlawful objectives - thereby losing
protection of the Act-does not require extended consideration Respond-
ent argues that by seeking to "negotiate" wages and working conditions
the welders constituted themselves a labor organization within the broad
meaning of that term under the Act, that by attempting to seek "premature
recognition" as collective-bargaining representative in the face of the then
pending UAW campaign , they were in effect "attempting to force
As found, on September 20 Respondent unlawfully
discharged 10 welders because they exercised their statu-
tory right to strike Within the next few days. Respondent
informed these welders when they presented themselves
for work, that if they were permitted to work at all, it
would only be as new employees. Later, it advised them
that it would not hire them even as new employees.
Respondent's action naturally engendered resentment
among the welders and forcefully demonstrated to them
that their only hope of work with Respondent was by con-
tinuing the strike as long as there was hope of success.
Accordingly, I find that Respondent's September 20 un-
fair labor practice prolonged the strike. I further find that
the strike, while initially economic in character was trans-
formed into an unfair labor practice strike when the unfair
labor practice became known to employees reporting to
work on September 21.
There remains the question as to which strikers are en-
titled to reinstatement. It is settled that an employer's
reinstatement and basic pay obligation does not come into
play until strikers abandon the strike and evidence an un-
conditional willingness to return to work, usually by way
of applications for employment. N.L.R.B. v. Globe Wire-
less, Ltd., 193 F.2d 748, 752 (C.A. 9).19 The credited
evidence establishes that 4 of the 10 welders (Klump,
Hayes, Thomason, and Misak) made unconditional appli-
cations to return to work on September 21; and a fifth
(Martz) a week later (September 28), and a sixth (Van-
derwood) on September 29. 1 find that Respondent's
obligation to reinstate these employees accrued on the
dates indicated.
While it is true that employees normally manifest
willingness to return to work by applying for reinstate-
ment (either personally or through their representative).
under well-established legal principles an actual applica-
tion for reinstatement is not a sine qua non to the right to
reinstatement and backpay where the employer's conduct
has made it plain that such application would be super-
fluous, a mere empty formality, or would be rejected.
N L.R.B. v. Anchor Rome Mills, Inc., 228 F.2d 775, 780
Respondent to commit" an 8(a)(2) violation since a "real question of
representation" existed, that the unit in which representation was
sought-limited to welders - was "totally inappropriate ", and that their
attempts to force Respondent to grant them wage increases during the
pendency of the UAW organizational campaign could be "construed as
an attempt to undermine the UAW's organizational activity" in violation
of Section 8(a)(1) of the Act
Respondent's contentions are ingenious afterthoughts To begin with
the welders sought no recognition as collective-bargaining representative,
either for themselves or for others As they told Respondent, they acted
independently of any union, to enhance their individual positions
Secondly, as Respondent further recognizes, the granting of wage in-
creases during an organizational campaign "is not per se a violation of
Section 8(a)(I )," and certainly not if unmotivated by antiunion considera-
tions The instant case presents a typical situation where employees,
dissatisfied with working conditions, collectively seek to petition their em-
ployer to rectify grievances The guarantees afforded by the Act were in
no way diminished by the circumstance that the employees acted on their
own rather than through a union See N L R B v Washington Aluminum
Company, Inc , 370 U S 9, 14, Morrison-Knudsen Company, Inc v
N L R B , 358 F 2d 411, 413 (C A 9), Guernsey-Muskingum Electric
Cooperative, Inc v N L R B 285 F 2d 8, 12 (C A 6)
19 "it had been the Board's practice not to award back pay to em-
ployees discriminatorily discharged while on strike during the period
when they remain on strike on the theory that until it appears that the em-
ployees who desire employment have given up the strike it cannot be
established that the loss of pay was conclusively attributable to the em-
ployer's conduct " Buzza-Cai doza, 97 NLRB 1342, 1344
GULF & WESTERN INDUSTRIES 11
(C.A. 5); Piasecki Aircraft Corporation, 280 F.2d 575,
585, 590 (C.A. 3). In such circumstances the employer's
obligation to reinstate becomes effective as soon as un-
conditional willingness to return to work is manifested by
abandonment of the strike. Sea View Industries, Inc., 127
NLRB 1402, 1403, 1438. It is clear from the undisputed
evidence that Respondent here had no intention of restor-
ing or permitting any of the striking welders to return to
their former positions. Indeed, applicants personally ap-
plying for reinstatement to their former positions were ex-
pressly so advised by Plant Manager De Young. It is
reasonable to assume that this company policy became
known to the two welders (Justice and Thompson) as to
whom there is no evidence of personal application for em-
ployment. Justice and Thompson had made common
cause with welders such as Klump, Hayes, and
Thomason who picketed Respondent on September 23,
after Respondent's rejection of personal applications for
reinstatement. In addition, Justice was on the Union's or-
ganizing committee (infra). Under the circumstances,
reinstatement demands by Justice and Thompson would
have been futile gestures and, hence. Respondent's
obligation to reinstate them became effective as soon as
they manifested unconditional willingness to return to
work by abandoning the picketing; i.e., September 23.
Although it would appear that applications for rein-
statement by the two remaining welders, Sinclair and
Hause, who also failed to file personal applications,
would have proved equally futile, there is no evidence
that they were aware of Respondent's policy against rein-
stating former strikers. Because of the absence of
evidence indicating their unconditional willingness to
return to work,20 Respondent's reinstatement and
backpay obligation as to these two men has not yet
become operative.21
B. Threats of Discharge For Wearing Union Insignia
The complaint, as amended at the hearing, alleges that
Harold Dawson. a supervisor and company agent,
threatened employees with discharge if they persisted in
wearing union (UAW) insignia in the course of their em-
ployment. Respondent denies commission of the acts in
question and, in addition, disavows responsibility for his
conduct.
1. Respondent's responsibility for Dawson's conduct
During the time material herein Dawson worked under
the overall supervision of Davies, an admitted supervisor.
Dawson described himself at the hearing as a "group
leader." He worked on the night shift while Davies was
on the day shift and was the only management representa-
tive in the welding department on his shift. Although ad-
mitting to be "in charge" of the night-shift welders,
Dawson claimed he "couldn't make a decision of my
own." He testified that Davies. whose hours overlapped
the second shift, would leave him instructions for trans-
mittal to other employees and that, when necessary. he
could "get a hold" of Davies at home (by telephone) for
further instructions. On the other hand, it is admitted that
Dawson did, and could, assign work to welders on his
shift, received from and discussed with employees wage
increase requests, recommended and obtained wage in-
creases for them.22 and attended management meetings
with foremen and executives. Dawson recalled attending
a meeting at which Plant Manager De Young "advised"
the attendants not to talk to employees about the
Union.23 It is clear that employees had regarded Daw-
son as a supervisor and part of management.
Based on the foregoing and the entire record, I find that
Dawson had "authority, in the interest of the employer
. responsibly to direct" employees under him within
the meaning of Section 2(11) of the Act and, therefore,
that he was a supervisor for whose conduct Respondent
is accountable. See N.L.R.B. v. Edward G. Budd Manu-
facturing Co., 169 F.2d 571, 575-576 (C.A. 6); Jas. H.
Matthews & Co. v. N.L.R.B., 354 F.2d 432, 434-435
(C.A. 8); N.L.R.B. V. Syracuse Stamping Company, 208
F.2d 77. 79 (C.A. 2). "To be sure, [Dawson was] not
high in the factory hierarchy and apparently did not have
the power to hire or fire. But [he] did exercise general
authority over the employees and [was] in a strategic
position to translate to [his] subordinates the policies and
desire of the management." IAM, Tool and Die Makers
Lodge No. 35, [Serrick Corp.] v. N.L.R.B., 311 U.S. 72,
80.
2. Dawson's conduct
On August 1 and 25, the Union sent Respondent let-
ters apprising it of the organizational drive and composi-
tion on the Union's organizing committee.24 In mid-Sep-
tember employees were wearing union insignia, including
buttons and pen holders with the Union's name inscribed.
Employee Vanderwood testified that around September
13, while at his workbench in the welding shop. Dawson,
his superior, stated that "if we wore union buttons that we
could be fired." Vanderwood was not wearing a union
botton at the time, but "a lot of men" near him were; and
employees continued to wear such buttons after the in-
cident, but none was discharged for it.
Martz testified to a similar incident in mid-September.
Dawson told him at work "all of the bad points that he
could think of" against unionization. According to Martz,
Dawson said that "if the union gets in that we would have
to go through a classification test and would finally wind
up with less money than we were getting," adding "we
could be discharged for wearing [union buttons] in the
shop, and we had better keep them out of sight." Martz
wore a union button at that time.25
20 For ought that appears, they may have left the area of employment or
found other positions in this area more satisfactory to them. The record
shows that Sinclair began to work for Bliss Company on September 27.
2' In accordance with usual practice , however, the Recommended
Order herein will require Respondent to offer reinstatement to these two
employees , upon request.
The record does not support the allegation in the complaint (paragraph
13) that the employees who personally applied for employment did so also
on behalf of all 10 employees . Insofar as it appears , each applicant made
the application individually and for himself only.
'22 Dawson testified, "If he [an employee] was a good worker I would
put him in but that didn 't mean it would go through."
23 According to Dawson, Archie Lash, an admitted supervisory em-
ployee whom he described as a "group leader," also attended that meet-
ing.
24 The committee included the following employees whose terminations
are here in issue Hayes , Justice, Klump, Martz, and Thomason
25 Martz also described an incident in which Foreman Davies related
"all of the bad points" about unionization , recounted his unfavorable ex-
periences in union shops, and predicted that if the Union came in "produc-
tion would speed up, and they would be on us all of the time." General
Counsel adduced this testimony for background purposes only.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompson similarly testified that in September
Dawson told a group of employees in the welding depart-
ment that "we could be fired for ... wearing the UAW
literature." Thompson wore a pencilholder with the
legend "Vote UAW" at the time.
On direct examination Dawson in general terms denied
"ever" telling "a group of employees they could get fired
for wearing a union button." When asked on cross-ex-
amination whether he saw union insignia around the
plant, he first hedged and equivocated, but finally con-
ceded seeing some. I credit the more straightforward and
mutually corroborative and convincing testimony of em-
ployees Vanderwood, Martz, and Thompson.
The wearing of union insignia has long been recognized
as a traditional and effective instrument in the conduct of
organizational campaigns . See. e.g., Salant & Salant, In-
corporated, 92 NLRB 417, 426. Respondent's threats to
employees (through Dawson) that they could be
discharged for wearing them constituted unwarranted in-
terference with the right to self-organization, in violation
of Section 8(a)(1) of the Act. Kimble Glass Company v.
N.L.R.B., 230 F.2d 484, 485 (C.A. 6). enfg. 113 NLRB
577; N.L.R.B. v. Mayrath Company, 319 F.2d 424, 426
(C.A. 7); N.L.R.B. v. Essex Wire Corporation dlb/a
Essex Corporation of California, 245 F.2d 589, 593
(C.A. 9). Cf. Caterpillar Tractor Company, a Corpora-
tion v . N.L.R.B., 230 F.2d 357, 359 (C.A. 7).
CONCLUSIONS OF LAW
1. By discharging 10 of its welders for engaging in pro-
tected concerted activity (a strike) and by thereafter
refusing to employ 8 of the 10, evidencing unconditional
willingness to return to work, Respondent has interfered
with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act and has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. By threatening to discharge employees for wearing
union insignia in the course of their employment,
Respondent violated Section 8(a)(1) of the act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend the customary
cease-and-desist order and affirmative relief conven-
tionally ordered in cases of this nature. Having found that
Respondent violated Section 8(a)(1) of the Act by
discharging 10 employees because they engaged in pro-
tected concerted activities, I shall recommend that
Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, discharging , if necessary , any replacements in
order to provide work for said employees . However, in
accordance with the Board's practice in the case of
strikers who are unlawfully discharged before they are
replaced, their backpay will begin to run from the date, if
any, when they evidenced unconditional willingness to
return to work by application or otherwise rather from the
date of their discharge. Staub Cleaners Inc., 148 NLRB
278, 297. For reasons stated supra (section A, 3, b), that
date will be September 21, 1966 , for William Klump,
Allen E. Hayes, Darcy R. Thomason, and Frank Misak;
September 23, 1966 , for Phillip Justice and Merle
Thompson; September 28, 1966, for Wayne Martz; and
September 29 for James Vanderwood. Since it has not
been established that Bernard Hause and Raymond Sin-
clair evidenced willingness to return to work , no backpay
is provided for them. The backpay for the eight other ter-
minated employees shall run to the date when Respon-
dent has offered them reinstatement in the manner set
forth herein and shall be computed in accordance with the
formula stated in F. W. Woolworth Company, 90 NLRB
289. Interest shall be added at the rate of 6 percent per
annum. Isis Plumbing & Heating Co., 138 NLRB 716.
Because of the nature of the unfair labor practices en-
gaged in by Respondent , I deem it necessary to recom-
mend that Respondent be required to cease and desist
from infringing in any manner on employee rights guaran-
teed by Section 7 of the Act.
Although the complaint was issued against Gulf &
Western Industries , Inc., as well as Electro -Chemical
Finishing Company, the Recommended Order will not be
directed against the former. While Electro-Chemical
Finishing Company is a wholly owned subsidiary of Gulf
& Western , there is no evidence of centralized managerial
direction or control by one colhpany over the other and,
even more significantly , evidence of centralized or com-
mon labor relations policy. See M . Lowenstein & Sons,
Inc., 150 NLRB 737, 738, footnote 2; Mt. Clements Pot-
tery Company, 46 NLRB 714, 780-781, modified on
another point 147 F.2d 262 (C.A. 6). The fact that Plant
Manager De Young occasionally consulted with Wesley
Gross-an officer of another subsidiary of Gulf &
Western Industries , Inc., in Grand Rapids (Michigan
Plating & Stamping Co.), whose superior in that com-
pany, DeVries, is an officer of Gulf & Western-on
operational matters and that by "coincidence" Gross
happened to be in De Young's office when one of the
welders (Klump) applied for reinstatement , is of no
moment.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record , and pur-
suant to Section 10(c) of the Act, I hereby make the fol-
lowing:
RECOMMENDED ORDER
Electro-Chemical Finishing Company, Middleville,
Michigan , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing em-
ployees in the exercise of their right to engage in con-
certed activities for their mutual aid and protection, by
discharging , refusing to reinstate , or by otherwise dis-
criminating in regard to their hire , tenure of employment,
or any term or condition of employment.
(b) Threatening to discharge employees for wearing
union insignia in the course of their employment.
(c) Interfering in any other manner with , restraining,
or coercing any employee in his right to self-organization,
to form , join, or assist any labor organization , to bargain
collectively through representatives of his own choosing,
to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to the following 10 individuals immediate and
full reinstatement to their former or substantially
equivalent positions at which they would have been em-
GULF & WESTERN INDUSTRIES
ployed had they not been discriminated against, for en-
gaging in protected concerted activity, in the manner set
forth in the section of this Decision entitled "The
Remedy": Bernard Hause, Allen E. Hayes, Sr., Phillip
Justice, William Klump, Wayne Martz, Frank Misak,
Raymond Sinclair, Darcy R. Thomason, Merle Thomp-
son, and James Vanderwood.
(b) Make whole the following eight individuals for any
loss of wages suffered by them, in the manner set forth in
The Remedy section of this Decision: Allen E. Hayes,
Sr., Phillip Justice, William Klump, Wayne Martz, Frank
Misak, Darcy R. Thomason, Merle Thompson, and
James Vanderwood.
(c) Notify the employees listed in above paragraph (a)
if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and Univer-
sal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Decision.
(e) Post at its plant in Middleville, Michigan, copies of
the attached notice marked "Appendix."26 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 7, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply herewith.27
IT IS FURTHER RECOMMENDED that the complaint
against Gulf & Western Industries, Inc., be, and it hereby
is, dismissed.
26 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
13
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their right to engage
in concerted activities for their mutual aid and pro-
tection, by discharging, refusing to reinstate, or by
otherwise discriminating in regard to their hire,
tenure of employment, or any term or condition of
employment.
WE WILL NOT threaten to discharge employees for
wearing union insignia in the course of their employ-
ment.
WE WILL offer the following employees immediate
and full reinstatement to their former or substantially
equivalent positions at which they would have been
employed had they not been discriminated against:
Bernard Hause
Allen E. Hayes, Sr.
Phillip Justice
William Klump
Wayne Martz
Frank Misak
Raymond Sinclair
Darcy R. Thomason
Merle Thompson
James Vanderwood
WE WILL make whole the following individuals for
any loss of wages suffered by them as provided in the
section of the Trial Examiner's Decision entitled
"The Remedy:"
Allen E. Hayes, Sr. Frank Misak
Phillip Justice Darcy R. Thomason
William Klump Merle Thompson
Wayne Martz James Vanderwood
WE WILL NOT interfere in any other manner with,
restrain, or coerce any employee in his right to
self-organization, to form, join, or assist any labor or-
ganization, to bargain collectively through represent-
atives of his own choosing, to engage in concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
Dated By
ELECTRO-CHEMICAL
FINISHING
(Employer)
(Representative ) (Title)
NOTE: Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act, and Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.