Lock Joint Tube Co.

National Labor Relations Board - Board Decisions

Jun 15, 1960

127 N.L.R.B. 1146 (N.L.R.B. 1960)

1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lock Joint Tube Company and International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO
Lock Joint Tube Company and International Union of Electri-
cal, Radio and Machine Workers , AFL-CIO.' Cases Nos. 13-
CA-3026 and 13-IBC-6189. June 15, 1960
DECISION AND ORDER
,On December 17, 1959, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. In his report the Trial,
Examiner also made certain recommendations for the disposition of
challenged ballots in the representation case. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the cases, and hereby adopts the findings," conclusions, and recommen-
dations of the Trial Examiner, with the following additions and
modifications.
1. The Respondent alleges that in the conduct of the hearing and
in the preparation of the Intermediate Report the Trial Examiner
was biased and prejudiced. We have carefully scrutinized the entire
record and the Intermediate Report and do not agree that the Trial
Examiner has shown bias or prejudice in either.
2. In agreement with the Trial Examiner, we find that, by the
following conduct of Respondent's president, Woodka, after receipt
of the Union's letter of September 19, 1958, stating that it had filed
a representation petition with the Board, the Respondent violated
Section 8(a) (1) of the Act:'
I Referred to hereinafter as the Union.
3 The Respondent has excepted to all of the Trial Examiner 's credibility findings. The
Board does not overrule a Trial Examiner 's resolution as to credibility except where the
clear preponderance of all the relevant evidence convinces the Board that the Trial
Examiner ' s resolution was incorrect Standard Dry Wall Products , Inc, 91 NLRB 544,
enfd. 188 F . 2d 362 (CA. 3). No such conclusion is warranted in this case
3Baltim, o,e Steam Packet Company , 120 NLRB 1521, 1525
127 NLRB No. 141.
LOCK JOINT TUBE COMPANY 1147
Interrogating employees individually and in small groups as to
whether they had signed union cards, and informing them that they
did not have to answer his question because he would obtain the
information in any event; requesting the names of individuals who
had solicited signatures on union cards; telling employees that he
would not accept the Union, that plant operations would be curtailed
if necessary, that if they went on strike, they would be "walking out
there a long, long time," and that if the employees wanted a union he
would get them one.
3. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (3) and (1) of the Act by laying off 11 night-
shift employees on October 10, 1958, for the purpose of discouraging
union activities among its employees. The Trial Examiner's finding
is supported by the following circumstances :
As indicated above, the Respondent learned of the campaign to
organize its employees upon receipt of the Union's letter of September
19, 1958. After rejecting the Union's overtures toward recognition
and collective bargaining, the Respondent, by President Woodka,
embarked upon a course of conduct of patent hostility toward the
Union. It has been shown that Woodka interrogated employees as
to union membership and made threats of economic reprisal if the
Union were successful, all in violation of Section 8(a) (1) of the Act.
Further, on October 6 Woodka posted a notice requiring employees
to complete and return a job application by October 8.4 This action
was sudden and without precedent in the more than 30 years of the
Respondent's operations. Until October 6, 1958, the Respondent had
not seen the need for a job application form from its employees. That
this notice caused the employees to fear for the security of their jobs
is evidenced by their immediate protest. Without furnishing details
or specific identification of inquirers, Woodka testified that "various
attorneys . . . various manufacturers and . . . the FBI division of
the United States military," had sought information from the Re-
spondent about present and former employees. Woodka also testified
that the Respondent needed the application forms to learn the ability
and training of its employees in connection with contemplated changes
in the plant's operations, but gave no specifications. The peculiar
timing of the notice, the extraordinary haste with which the Respond-
ent sought to obtain the completed forms, and the unsatisfactory
explanation offered for the decision to require job applications, con-
vince us, and we find, that the job application requirement was but a
further manifestation of the Respondent's intent to discourage union
4 The Trial Examiner erroneously states that woodka testified that no applications were
distributed to the employees and that none was filled out However , Woodka testified
that applications were distributed on or about October 13 , 1958 , and all production
employees were required to fill them out.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity among its employees by creating the impression that their
jobs were in jeopardy.5
On October 7, after receiving the employees' protest against the
employment application, Woodka, as heretofore related, told assem-
bled employees that he would get them a union if they wanted one.
It also appears that many employees began wearing union buttons
in the plant on and after October 7. On the same date, Joseph Gondek,
the Respondent's production manager, learned that the night-shift
employees had met with a union representative at the plant gate on
the previous night.' Finally, on October 9, Woodka posted a notice
that the night shift was to be discontinued, effective October 10, and
that 11 of the approximately 15 employees on that shift were to be
laid off on the latter date.
The Respondent defends this layoff upon the ground of economic
necessity. To support this defense, Woodka, and Taxon, his chief
engineer, testified generally that a paucity of orders and a poor finan-
cial condition compelled them to discontinue the night shift and lay
off 11 employees. However, the Respondent did not introduce any
evidence to substantiate its position. It did not offer such evidence
as a comparative record of orders or production schedules, or a profit
and loss statement covering the period up to and including the month
of October 1958. Although the Respondent introduced into evidence
what purports to be the production schedule for October 1958, it was
not understandably explained and is beyond interpretation for pur-
poses of this case. Respondent's witness, Taxon, admitted that this
document did not, as of the time of the hearing, actually portray the
situation on October 7, the date of the alleged decision to end the
night shift and reduce the work force. On the other hand, employee
Banicki, whom the Trial Examiner credits, testified that the Re-
spondent's plant superintendent told him in July 1958 that there were
sufficient orders to keep the plant working until February 1959. The
Trial Examiner also credited the testimony of Kopczynski, a diemaker,
that at the time of his layoff on October 10, he had 10 or 12 weeks'
work left to do.
In view of the Respondent's course of conduct following receipt
of the Union's letter of September 19, 1958, and the Respondent's
failure to substantiate its defense of economic necessity, we find that
the layoffs of October 10 were part of a program to eradicate union
s Although this conduct is not alleged in the complaint as an unfair labor practice, we
have conicleied it as bearing upon the Respondent's motive in laying off employees
9 The Trial Examiner states that Leadman Lagodney informed Goudek of the meeting
on the morning of October 7. However, Lagodney's testimony is that he informed
Gondek the "next day " The Intermediate Report is corrected accordingly. The Respond-
ent asserts that it was not aware of this meeting at the time it allegedly decided to termi-
nate the night shift and lay off 11 employees However, we note that the Respondent was
informed of the meeting at some time on October 7, and that the announcement of the
decision was first communicated to the employees on October 9 In any event, the
Respondent was aware of union activity before October 7.
LOCK JOINT TUBE COMPANY 1149
activity. Accordingly, we find that by laying off the 11 employees,
the Respondent violated Section 8 (a) (3) and (1) of the Act.'
4. We agree with the Trial Examiner that the layoffs of October
23 were unlawful. On October 16 a hearing was held in connection
with the Union's representation petition. One week later, on October
23, the Respondent posted a notice announcing the layoffs of employees
Banicki, Rosploch, Bentkowski, Badur, Kershner, Resnick, and
«Tasielewski, effective at the close of the work shift on October 24.
However, on the morning of October 24 these employees with 16 others
went on strike to protest these layoffs. Although the layoffs were not
to be effective until the end of the workday on October 24 we find
the Respondent's announcement on October 23 constituted a construc-
tive layoff of the seven employees as of the earlier date.8
In finding these layoffs violative of Section 8(a) (3) and (1) of
the Act, we rely upon the following: 9
(a) The previous discriminatory layoff.
(b) During the 13 days following the first layoffs, the Respondent
continued to show hostility toward the Union's efforts to organize the
employees. Production Manager Gondek told an employee that
Woodka was "sore" and said that anyone in sympathy with "this
thing" was "just as liable" as if he had signed a card. Woodka told
employee Rosploch that he, Woodka, was aware of the latter's union
activity, and warned him "to take his union out that front gate." On
the afternoon of October 23 Gondek promised Nowinski permanent
employment if he did not go on strike.
(c) As in the case of the first layoffs, the Respondent asserts that
economic necessity forced a second reduction in its work force.
Woodka and Taxon testified that a further reduction in orders com-
pelled them to lay off seven employees. However, again, the Re-
spondent did not introduce evidence to substantiate this testimony,
which the Trial Examiner did not credit. On the other hand, em-
ployee Wasielewski testified that after the first week in October no
production orders were placed upon the plant bulletin board, as had
been the practice until that time. Employee Lagodney testified that
soon after the initial layoff, Gondek removed orders from the bulletin
board without responding to the former's questions as to why this
peculiar action was being taken. The Trial Examiner credited
Wasielewski's and Lagodney's testimony. Upon the record as a whole,
we find, as did the Trial Examiner, that the layoffs of October 23 were
discriminatorily motivated.
7 Heat Timer Corporation , 124 NLRB 1256 ; American Bottling Co , 99 NLRB 345, 352,
enfd 205 F 2d 421 (CA. 5), cert. denied 346 U S 921
8 Sebastopol Apple Growers Union, 118 NLRB 1181, 1230, enfd in rel. part 269 F 2d
705 (CA 9) ; Joseph N Fournier, Rome LsncoTn-Mercury Corporation, 86 NLRB 397,
405, enfd 182 F 2d 621 (CA 2). However, as these employees left their work 1 day in
advance of the layoff date , we shall not award them backpay for that 1 day.
9 Heat Tinier Corporation, supra; American Bottling Co , supra,
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. As stated hereinabove, the 7 employees scheduled for layoff on
October 24, and 16 other employees, struck on the morning of that
day and also began picketing the Respondent's plant. The Trial
Examiner found, and we agree, that the strike and the picketing were
in protest against the second layoff, which we have found was an
unfair labor practice. On December 4, 1958, the Respondent dis-
charged 22 of these employees allegedly because they had engaged
in such strike misconduct as to justify a refusal to reinstate them.
The Trial Examiner found that the discharged employees had not
engaged in strike misconduct sufficient to warrant discharge. On
the contrary, he concluded that the mass discharge was motivated by
the Respondent's desire to disfranchise these employees in anticipa-
tion of the Board election scheduled for December 11, 1958. This
conduct he found violative of Section 8(a) (3) and (1) of the Act.
In Rubin Bros. Footwear, Inc., et al.,10 the Board held that "the
honest belief of an employer that striking employees have engaged
in misconduct provides an adequate defense to a charge of discrimina-
tion in refusing to reinstate such employees, unless it affirmatively
appears that such misconduct did not in fact occur." This rule re-
affirms the General Counsel's burden of proving the essential elements
of an alleged discriminatory discharge. As further stated in Rubin,
the "honest belief" doctrine "merely places an employer's honestly
asserted belief in its true setting by crediting it with prima facie
validity."
In the instant case, the General Counsel has established that the
Respondent was engaged in a deliberate campaign to eradicate union
activity among its employees. The events leading to the layoffs of
October 10 and 23, as well as the layoffs themselves, were designed to
destroy whatever strength the Union might have attained, and to
discourage any further union activity among the Respondent's em-
ployees. We further find that the discharges on December 4, 1958,
coming 9 days after the Board order directing an election, and but 1
week prior to the date of the election itself, were part of the Respond-
ent's persistent, unlawful design rather than the result of a good-faith
belief that the strikers had engaged in misconduct.
Moreover, on the basis of the Trial Examiner's credibility deter-
minations, we find that the discharged employees had not in fact
engaged in misconduct. Accordingly, in agreement with the Trial
Examiner, we find that the Respondent's discharge of 22 strikers on
December 4, 1958, violated Section 8(a) (3) and (1) of the Act.
TIIE REMEDY
Having found, in agreement with the Trial Examiner, that the
Respondent has engaged in and is engaging in unfair labor practices
1099 NLRB 610, 611, enforcement denied 203 F. 2d 486 ( C.A. 5), reaffirmed by the
Board in BARD-TV, 122 NLRB 222, 226.
LOCK JOINT TUBE COMPANY 1151
in violation of Section 8(a) (3) and (1) of the Act, we shall adopt the
Trial Examiner's recommended remedy, modified as follows :
On October 10, 1958, the Respondent discriminatorily laid off
employees Biskupski, Botka," Bleich, Bolka, Egyhazi,12 Krzyzaniak,'3
Topolski, Kopezynski, Deckard, Pishnoff, and Sroda. The Respond-
ent and the General Counsel stipulated that of these employees, all,
except Biskupski and Deckard, were sent offers to return to work on
or about November 24, 1958.14 Biskupski received an offer to return
to work on November 26, 1958, and returned to work on November 28,
1958. Bleich returned to work on November 26, 1958. Of the re-
mainder of this group, Kopczynski, Pishnoff, and Botka notified the
Respondent that they had obtained permanent employment elsewhere.
The Respondent and the General Counsel also stipulated that em-
ployees Egyhazi, Topolski, Krzyzaniak, Bolka, and Sroda did not
respond. We regard this failure to respond as a rejection of the offer.
We shall order the Respondent to offer Deckard immediate and full
reinstatement to his former or a substantially equivalent position
without loss of seniority or other rights and privileges. We shall
also order the Respondent to make him whole from October 10, 1958,
the date of his layoff, to the date of the Respondent's offer of rein-
statement.15 As to the remaining employees in this group, except
Biskupski, we shall limit the remedy to the payment of backpay for
the period from October 10, 1958, the date of their layoff, to November
24, 1958, the approximate date of the Respondent's offer of reinstate-
ment to them.16 Biskupski shall receive payment of backpay for the
period from October 10 to November 26, 1958, the date of the Respond-
ent's offer of reinstatement to him.l'
The Respondent discriminatorily laid off employees Banicki, Ros-
ploch, Bentkowski, Wasielewski, Badur, Kershner, and Resnick on
October 23, 1958, effective at the close of the work shift on October
24, 1958. We shall order the Respondent to offer them immediate and
full reinstatement to their former or substantially equivalent positions
without loss of seniority or other rights and privileges. We shall also
order the Respondent to make whole each of these employees from
11 The name of this employee is incorrectly spelled "Bodka" in the Intermediate Report.
The correct spelling is "Botka."
13 The Trial Examiner inadvertently omitted the name of C Egyhazi from the list of the
employees to whom the Respondent sent offers of reinstatement
11 The name of this employee is incorrectly spelled "Krzyaniak" in the Intermediate
Report. The correct spelling is "Iirzyzaniak "
14 The Trial Examiner incorrectly states that the Respondent's offers of reinstatement
were sent to these employees on November 25, 1958 The General Counsel stipulated that
such offers were sent "on or about November 24, 1958 "
11 O.-ark Hardwood Company, 119 NLRB 1130, 1133, 1156; The Rivolu Mtlls, Inc , 104
NLRB 169, 172, enfd 212 F. 2d 792 (CA 6).
"Brookville Glove Company, 116 NLRB 1282, 1293, RJ Oil d Refining Co. Inc,
108 NLRB 641, 648; cf. G. TV. Emei son Lumber Corn pany, 101 NLRB 1046, 1060
17 Ibid.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 24, 1958, the effective date of their layoffs, to the date of the
Respondent's offer of reinstatement."
We have also found that the Respondent unlawfully discharged
the following named unfair labor strikers on December 4, 1958:
J. Chrzan W. Kuntz E. Wojtas
X. Debaets W. Lagodney S. Repczynski
'S. Hes J. Niesen A. Ruckert
S. Jaroszewski W. Nijak M. Schiettecatte
Z. Kendziorski J. Nowinski D. Tarwacki
We shall therefore order the Respondent to offer them immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any persons hired on and after October 24,
1958. We shall also direct the Respondent to reimburse the foregoing
employees for any loss of pay they may have suffered by reason of
the Respondent's discrimination against them. Ordinarily a discrim-
inatorily discharged employee is entitled to backpay from the date
of discharge. However, as these employees were on strike at the time
of the discharge, we shall follow the Board's practice and award
backpay from the date on which they made unconditional applica-
tions for reinstatement or, where no application has been made, from
5 days from the date of this Order to the date of the Respondent's
offer of reinstatement.19
All of the employees listed in this section of the Decision shall be
made whole in accordance with the Board policy and procedure set
forth in F. W. Woolworth Company, 90 NLRB 289.
The Challenged Ballots in Case No. 13-RC-6189
The Respondent challenged the ballots of 27 voters in the represen-
tation election held on December 11, 1958, upon the grounds that they
had been engaged in an economic strike and had been replaced. As an
additional ground for its challenges to the ballots of 22 of these voters,
the Respondent alleged that they had been discharged on December 4
for misconduct. The Respondent also challenged the ballots of em-
ployees Kopczynski and Botka upon the ground that they had ob-
tained permanent employment elsewhere prior to the election. It
also appears by stipulation of the Respondent and the General Coun-
sel that employees Egyhazi, Bolka, Sroda, Topolski, and Krzyzaniak
failed to reply to offers of reinstatement sent to them by the Re-
spondent on or about November 24,1958.
In view of our findings hereinabove that the strike was caused by
unfair labor practices and that the December 4 discharges were u1_1_
Is Ozark Hardwood Company, supra ; The Revolt Mills, Inc, supra.
11 Florida Citrus Canners Cooperative , 124 NLRB 1182 ; Dunkirk Broadcasting Corpora-
tion, et al., 120 NLRB 1588, 1592.
LOCK JOINT TUBE COMPANY 1153
lawful, the Respondent's challenges are overruled except as to the
ballots of Kopczynski and Botka who were permanently employed
elsewhere on the date of the election. As to the latter we find they
were ineligible to vote 20 and shall therefore sustain the Respondent's
challenges to their ballots. We further find that employees Egyhazi,,
Bolka, Sroda, Topolski, and Krzyzaniak were also ineligible to vote
because of their failure to respond to the Respondent's offers of rein-
statement made prior to the date of the election which we have con-
strued to be a rejection of such offer. We shall therefore sustain the,
Respondent's challenges to these ballots.
The Trial Examiner recommended that the Charging Union's chal-
lenges to ballots of the 12 employees hired on or after November 4,,
1958, as replacements for employees discriminatorily laid off or dis-
charged be sustained. We agree and shall sustain these challenges.2k
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Lock Joint Tube
Company, South Bend, Indiana, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activity on behalf of Inter-
national Union of Electrical, Radio and Machine Workers, AFL-CIO,,
or any other labor organization of its employees, by discharging,,
laying off, refusing to reinstate, or otherwise discriminating against
employees in regard to hire or tenure of employment or any term or
condition of employment.
(b) Interrogating employees concerning their union activities,
affiliations, or sympathies in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act.
(c) Threatening employees with a reduction in plant operations or
other economic reprisals because of their adherence to International
Union of Electrical, Radio and Machine Workers, AFL-CIO, or any
other labor organizations.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to form
labor organizations, to join or assist International Union of Electrical,
Radio and Machine Workers, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
20 Union Manufacturing Company, 102 NLRB 1626.
a The Rivoli Mills, Inc , supra.
560940-61-vol 127-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of mutual aid or protection as guaranteed in Section 7 of the Act, and
to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the following named employees immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, in the manner
set forth in the section entitled "The Remedy" in the Intermediate
Report as modified by the section entitled "The Remedy" in the
Board's Decision :
N. Deckard V. Kershner, Jr. X. Debaets
R. Banicki L. Resnick S. Hes
E. Bentkowski F. Wasielewski S. Jaroszewski
J. Badur E. Rosploch W. Lagodney
Z. Kendziorski W. Kuntz J. Nowinski
J. Niesen W. Nijak A. Ruckert
E. Wojtas S. Repczynski D. Tarwacki
M. Schiettecatte J. Chrzan
(b) Make whole the following named employees for any loss of
pay they may have suffered by reason of the discrimination against
them in the manner set forth in the section of the Intermediate Report
entitled "The Remedy" as modified by the section of the Board's
Decision entitled "The Remedy" :
M. Bleich W. Botka C. Kopczynski
C. Egyhazi B. Sroda R. Bolka
E. Pishnoff T. Topolski
W. Biskupski B. Krzyzaniak
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of back-pay and right of
reinstatement due under the terms of this Order.
(d) Post at its plant in South Bend, Indiana, copies of the notice
attached hereto marked "Appendix." 22 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it fora period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to
221n the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
LOCK JOINT TUBE COMPANY 1155
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the challenges to the ballots of employees
Egyhazi, Bolka, Kopczynski, Botka, Agnew, Hayes, Olds, Smith,
Cousins, Krienke, Orban, Sroda, Krzyzaniak, Topolski, Szajko, Etter,
McFarland , Palkowski , and Wisniewski be, and they hereby are,
sustained.
IT Is FURTHER ORDERED that the challenges to the ballots of employees
Banicki, Badur , Kuntz, Bentkowski , Schiettecatte , Lagodney, Nijak,
Resnick, Jaroszewski , Nowinski , Chrzan, Repcynzski , Tarwacki,
Kershner, Debaets, Ruckert , Hes, Rosploch , Wasielewski , Wojtas,
Kendziorski , and Niesen be, and they hereby are , overruled.
IT IS FURTHER ORDERED that the Regional Director for the Thirteenth
Region shall , within 10 days from the date of this Order, open and
count the ballots the challenges to which have been overruled, and
shall thereafter serve upon the parties a supplemental tally of ballots,
including therein the count of these ballots.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in and activity on behalf
of International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, or any other labor organization of our employees,
by discharging, laying off, refusing to reinstate, or otherwise
discriminating against employees in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union
activities, affiliations, or sympathies in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1)
of the Act.
WE WILL NOT threaten our employees with a reduction in plant
operations or other economic reprisals because of their adherence
to International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, or any other labor organization.
I`TE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of fie right to self-
organization, to form labor organizations, to join or assist Inter-
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Union of Electrical, Radio and Machine Workers,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in other concerted activities for purpose of mutual aid or
protection as guaranteed in Section 7 of the Act, and to refrain
from any and all such activities.
AVE, WILL offer the following named employees immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay they may have suffered by reason of discrimination
against them :
N. Deckard Z. Kendziorski
R. Banicki W. Kuntz
E. Bentkowski W. Lagodney
J. Badur J. Niesen
V. Kershner, Jr. W. Nijak
L. Resnick J. Nowinski
F. Wasielewski E. Wojtas
J. Chrzan S. Repczynski
X. Debaets A. Ruckert
S. Iles AT. Schiettecatte
S. Jaroszewski D. Tarwacki
WE WILL make whole the following named employees for any
loss of pay they may
tion against them :
M. Bleich
C. Egyhazi
E. Pishnoff
W. Biskupski
W. Bolka
have suffered as a result of the discrimina-
R. Bolka
C. Kopczynski
B. Sroda
T. Topolski
B. Krzyzaniak
LOCK JOINT TUBE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served in the above-entitled CA case , a complaint
and notice of hearing thereon were issued and served by the General Counsel of
the National Labor Relations Board. Thereafter, on May 26, 1959 , the Board
issued its order directing a hearing to resolve certain issues raised by challenged
ballots in the above -entitled RC case. On July 10, 1959, General Counsel issued
LOCK JOINT TUBE COMPANY 1157
and served an order consolidating the said cases and a notice of consolidated hear-
ing I An answer was thereafter filed by the above-named Respondent Employer.
Pursuant to notice, a hearing involving allegations of unfair labor practices in viola-
tion of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended,
and issues raised in the above-described Board order of July 10, 1959, was held in
South Bend, Indiana, between September 22 and October 2, 1959, before the duly
designated Trial Examiner.
At the hearing all parties were represented by counsel and were afforded full
opportunity to introduce evidence pertinent to the issues, to examine and cross-
examine witnesses, to argue orally, and to file briefs. Argument was waived.
Comprehensive briefs have been filed by all parties.
On November 12, 1959, the Trial Examiner received a written motion to correct
the transcript of the proceedings in certain respects, the covering letter indicating
that service of the motion was being made upon the other parties. No objection to
said motion having been received, said motion is hereby granted, and is made a part
of the record. The transcript shall be corrected in accordance therewith.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Lock Joint Tube Company is an Indiana corporation, having its office and place
of business in South Bend, Indiana, where it is engaged in the manufacturing and
finishing of steel electrically welded and butted tubing
During the 12-month period preceding November 1, 1958, Lock Joint sold and
shipped finished products valued at more than $50,000 directly from its plant in
South Bend, Indiana, to points outside said State.
The Respondent Employer is engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers , AFL-CIO, is a
labor organization admitting to membership employees of the Respondent Employer.
III. THE UNFAIR LABOR PRACTICES
A. Background and major issues
All of the major issues in this case stem from self-organizational efforts begun by
Lock Joint's employees in September 1958. In substance, it is General Counsel's
contention that immediately upon discovery of such efforts management officials,
particularly President Woodka, began a countercampaign designed to discourage
employees in the exercise of their statutory rights. This unlawful action, General
Counsel urges, included illegal interrogation, threats of reprisal, and discriminatory
layoffs. On October 24, 1958, the majority of the employees went on strike, and it
is claimed by General Counsel that this strike was caused and prolonged by the
Respondent's unfair labor practices. On December 4, 1958, Woodka discharged
most if not all the striking employees, and General Counsel would have it found
that such employees were illegally dismissed because they were engaging in lawful,
concerted activities. As to this latter point in particular, the Respondent claims
justification for the discharges, alleging that all employees so discharged engaged in
misconduct during the strike, and that such misconduct was sufficient cause for
dismissal.
Comparatively, the Respondent's plant is not a large one. In early October 1958
(the year in which all events at issue occurred), it was employing less than 40 pro-
duction workers Joseph Woodka, president of the Company, was actively in charge
Of all policies, production, and sales. Of management authority tinder Woodka
were Fred Taxon, who had the title of chief engineer; Walter Briesch, plant super-
intendent, and Joseph Gondek, whose immediate responsibility was production.
Although the Company has been in production for many years,2 it does not appear
that its employees have ever been represented by a recognized bargaining agent.
'By the same order these cases were consolidated with Cases Nos, 13-CB-714 and
13-CB-724 As set forth in IR-823, issued by this Trial Examiner on October 27, 1959,
the last-mentioned cases were, upon joint motion , severed and a separate Intermediate
Report issued thereon
2 Woodka testified that lie began working for the Company In 1927.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodka's antipathy toward such statutory employee rights , however, was mani-
fested by him in early 1956, while organization was being conducted by a union
other than the one here involved, and when he sent to "employee and wife" letters
wherein he said, among other things:
Remember , under protection of the National Labor Board, a union organizer
or leader does not have to tell the truth.
Contained in the same letter-couched mainly in question -and-answer form-was
an admission of distinct relevance in determining Woodka's real motive in suddenly
laying off a substantial portion of his working force in October 1958. The letter
states:
Q. Why are we only working 32 hours now when you said you will do
everything to keep us going at least 40 hours?
A. You will be back on 40 hours next week . Before the year has ended, I
will see that each of you will make up the extra hours lost with overtime work.
I did this especially so you could see how it hurts if you are sent home when
you haven ' t any work . This, is exactly what will happen if we become
unionized; for then you become a specialist and you can not do other work.
[Emphasis supplied.]
B. Events leading up to the first layoff
Among the plant employees Jerome Badur appears to have assumed leadership
in obtaining signatures upon authorization cards furnished him by John Barkley, a
field representative of the Charging Union. Between September 16 and 19, some
18 employees signed such cards and , on the latter date, Barkley notified Woodka
by letter that he was filing a petition with the Board seeking a "certification election."
In his written response dated September 22, Woodka said:
In reply to your letter of September 19, 1958, I do not consent to any
agreement with your affiliation for any of our employees.
I do not believe that your union represents the majority of our employees
and we will request a hearing by the National Relations Board [sic] in the
event the matter is brought to our attention by that Board.
Woodka also spent a good part of the same day in calling to his office plant
employees , individually or in small groups , where he interrogated them as to
whether or not they had signed union cards. To a number of them he said that
they did not have to tell him because he would find out anyway. If a hearing were
held, he explained , the Union would have to show him the cards . To several he
termed the IUE as "Communist ," and told at least two employees ,3 that "a union
like that he would never accept ." Two others were told that he would eliminate
another mill if necessary , and warned them that if the employees went on strike they
would be "walking out there a long, long time." 4 Woodka asked one group of
three to reveal the names of anyone who had approached them asking them to
sign cards .5
Woodka's overtly coercive interviews, described above, failed to diminish the
employees ' organizational activity . The president 's next move , while somewhat more
subtle-and more in line with his antiunion reduction of hours in early 1956-was at
least effective in that it aroused positive protest from the employees themselves.
He caused to be posted on the plant bulletin board a 2-page "Application for
Employment" form, and beside the form posted the following letter:
TO ALL FACTORY AND OFFICE EMPLOYEES
You will be given an application form for employment like the sample on
the Bulletin Board . You will receive this Tuesday and we Must have it
completed and returned on Wednesday October 8th.
Do Not fill in sections marked with an X. Fill in all other sections complete.
We must have the above information to keep proper records for all reports
required by various agencies , including governmental.
Although the plant had been in operation for more than 30 years, Woodka admitted
that never before had a requirement to fill out such forms been made. As a witness,
8 Chrzan and Dosmann.
4I{endziorski and Debaets.
s Nowinski , Nowaczewski , and Wojtas.
LOCK JOINT TUBE COMPANY 1159
Woodka gave reasons for this sudden action which, on their face, defy reasonable
belief. He declared:
We had never had any records of this type of information , giving us all of the
information that was needed here , plus the education , plus some of the former
employment or the ability of some of our employees . We have had from time
to time various attorneys , various manufacturers and on specifically just about
three days before we wanted this application filled out I had the FBI division
of the United States military come to us and ask of us information about a
certain employee.
As to this "FBI division of the United States military" Woodka could identify neither
the individual inquiring nor inquired about. He named no attorney and no manu-
facturer who had asked for such information . He cited no agencies , governmental
or otherwise , who required such records. And as to "ability," it appears obvious
that no such application form was necessary , particularly since many of his employees,
had been working at the plant for many years.
Employees met with the IUE representative that night and protested against the
employer's action. The union representative sent Woodka the following night letter:
YOUR ACTION TAKEN OCTOBER SIXTH REQUIRING ALL EM-
PLOYEES TO FILL OUT APPLICATIONS FOR EMPLOYMENT FORMS
OR SIMILAR TYPE FORMS IS CONSIDERED BY THE IUE AFL-CIO TO,
BE AN UNFAIR LABOR PRACTICE SINCE SUCH ACTION IS BEING
TAKEN AFTER THE IUE HAS PETITIONED FOR AN NLRB ELECTION
OF YOUR EMPLOYEES AND WHILE DISPOSITION OF SUCH PETI-
TION IS PENDING. WE WILL IMMEDIATELY FILE WITH THE NLRB'
UNFAIR LABOR CHARGES AGAINST THE LOCK JOINT TUBE COM-
PANY AND YOURSELF IF ANY ACTION IS TAKEN AGAINST ANY
IUE SUPPORTER IN THE LOCK JOINT TUBE PLANT AS A RESULT
OF YOUR CONTEMPLATED ACTION OR ANY OTHER ACTION RELA-
TIVE TO IUE'S CAMPAIGN IN THE LOCK JOINT TUBE PLANT. WE
URGENTLY REQUEST THAT SUCH ACTION SUCH AS REQUIRING
YOUR EMPLOYEES TO FILL OUT APPLICATION FOR EMPLOYMENT
FORMS BE POSTPONED UNTIL AFTER THE NATIONAL LABOR RE-
LATIONS BOARD CONDUCTS A CERTIFICATION ELECTION OF
YOUR EMPLOYEES.
At the same IUE meeting many employees who had not worn them previously
took union buttons and displayed them openly at the plant the next day.
Upon receipt of the above-quoted wire, Woodka assembled all employees. In
substance he told them that he had asked for such applications because "an FBI
agent ... came into the plant and wanted information on a certain person. .
He went on to say that the employees were being led by "two men, one of whom
has no dependents and one whose father has a business ," and because of the Union
he was losing money-since he could not go out and make "sales like he did before"
and "had to stay around the shop and watch what the men did." 6 Woodka also
told the assembly that-"If you boys want a union I will get you a union." 7
It appears that Woodka actually retreated from his posted "requirement" that
such applications be filled out. As a witness he said that no employee was required
to fill them out, and "none were given out to any of them to fill out." Had such
information been actually needed "for all reports required by various agencies, in-
cluding governmental ," as he had informed employees in his posted letter, it is
reasonable to believe that he not only would have been able to convince employees
of such necessity , had it existed , by displaying such "governmental " requirements,
but would also have insisted upon having the forms filled out . There is no evidence
that he obtained the "required" information by any other means.
The complaint does not allege either that the posting of the application require-
ment or the requirement itself was , per se, an unfair labor practice , and at the hear-
ing General Counsel stated that "at this time , at any rate" he was not so claiming.
Under such circumstances the Trial Examiner does not make a finding on this point
O The quotations are from the undisputed testimony of Jerome Badur, previously iden-
tified as one of the employee leaders in organization and whose father does run a business
7 The last quotation is from the credible and not specifically disputed testimony of
employee Kershner. With but few exceptions, Woodka was not confronted with specific
testimony of statements attributed to him by General Counsel's witnesses, but merely
denied allegations of the complaint read to him by his counsel. Such general denials, in
the opinion of the Trial Examiner, are of little more probative value than when appearing
in an answer.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in terms of the Act, but he does consider the event , in its setting , of probative value
in determining the Respondent 's real motive for layoffs which occurred shortly
thereatter
Backtracking for a moment, to maintain clarity and continuity, later in the evening
of October 6, and after he had dispatched the night letter quoted above, IUE
Representative Barkley met with all the employees on the night shift, at the company
gate, and off company property. Among others present were the above-identified
Jerome Badur and Leadman William Lagodney. The next morning Lagodney
promptly informed Production Manager Joseph Gondek of this meeting.8
On October 7, after management had been informed of the meeting of the night-
shift employees with the IUE representative at the plant gate, according to the
testimony of Chief Engineer Taxon, he and Woodka decided to "discontinue a
double-shift operation."
C. The layoff of October 10
With no previous warning of such action, all employees at the plant were con-
fronted 2 days later, on October 9, with the following bulletin signed by Woodka:
TO ALL EMPLOYEES OCTOBER 9, 1958.
Certain business developments and change of conditions beyond the control
of the Company, requires the discontinuance of the night shift effective at the
close of such shift Friday Night, October 10, 1958.
At such time it will be necessary to lay off the following employees for lack
of work:
Martin Bleich
Carl Egyhazi
Edward Pishnoff
Roman Bolka
Walter Biskupski
Norman
Walter Botka
Bert Sroda
Bert Krzyzaniak
Tadeusz Topolski
Chester Kopczynski
Deckard
The Company regrets the necessity for taking this action, but within the
foreseeable future, can see no opportunity of it being able to provide work
for this group.
All other night shift employees will report for work on the day shift beginning
at 8:00 A.M. Monday, October 13, 1958.
The named employees were, in fact, laid off on October 10.
General Counsel urges that this general layoff of nearly one-third of the produc-
tion force was discriminatory and for the purpose of discouraging membership in
,and activity on behalf of the IUE. In the opinion of the Trial Examiner, the
preponderance of credible evidence fully establishes a clear, prima facie case in
support of such allegations. In review, the following factors point unmistakably
to the existence of Woodka's anti-IUE motive:
1. The undisputed fact that in 1956, during another organizational campaign,
by his own written boast to all employees he had reduced working hours for a
,considerable period in order to demonstrate what would happen if the plant were
"unionized."
2. Woodka's openly expressed hostility toward the IUE during his many interviews
with employees on September 22, when he labeled the organization as "Communist"
and declared that he would never recognize "a union like that," and when he inter-
rogated such employees as to whether or not they had signed union cards.
3. Woodka's next move in posting a letter "requiring" all employees to fill out a
detailed application for employment form which, from its very nature could rea-
sonably only have had-and as the wire of protest showed did have-a coercive
effect upon the employees by implying that they might have to seek other em-
ployment.
4. Management's being informed on the morning of October 7 of the meeting of
the night-shift employees with the IUE representative late the previous night.
5. The fact that many employees who previously had not worn buttons began
wearing them on October 7.
6. Undisputed evidence that at least 9 of the 11 employees laid off had indicated
their IUE affiliation by wearing such buttons on October 7 or earlier.
On the other hand, the Respondent urges that the layoff was caused by economic
necessity. Having observed management witnesses as they testified and having
carefully reviewed all their testimony, the Trial Examiner is not persuaded that the
Respondent's claim posseses merit-at least of sufficient probative value to outweigh
8 Lagodney's testimony that he so informed Gondek is unrefuted.
LOCK JOINT TUBE COMPANY 11 6 11
General Counsel's strong case. In the first place, although management officials,
asserted at length that various company records showed many things, not a single
document establishing any of the asserted claims was produced at the hearing-
although as to certain of them Woodka admitted that they were in existence.°
To the Trial Examiner it appears unnecessary here to set out in detail all of these
unsupported assertions made by management witnesses.
The following points are representative of their unconvincing nature:
1. Taxon, who claimed that he "suggested" the layoff to Woodka, testified while
holding in his hands certain documents which he called "master production,
schedule[s]." "Had we continued to operate two shifts," he said, "mill No. 1
would have been out of the schedule, would have been out of work on the 17th
of the same month, October 1958." When counsel for IUE objected to this as the
witness' conclusion, Taxon declared, "That's what the record shows." He con-
tinued to state that the same records showed that for mill No. 2 there were no
orders beyond October 15, for mill No. 3 beyond October 20, and for mill No. 4
beyond October 15. And he further said that such records showed this to be
the state of affairs on October 7, 1958. Yet upon being questioned on these records
the following colloquy occurred:
TRIAL EXAMINER: You have no sheets then to show you precisely what was,
the situation on October 7th.
The WITNESS: Not in themselves, no.
Taxon's later testimony establishes clearly not only that he had no actual record
of the work schedule status as of October 7 but that as of that date he stopped
scheduling work for the two shifts. There is no competent evidence in the record
of any orders, of any date, and particularly of none which may have come in on
October 7 and thereafter, which might have been allocated, had management
wished, to the mills on a two-shift operation.
2. When asked as to his reasons for deciding to lay off the night shift, Woodka
told his own counsel: "We had a further reduction in orders." When counsel for
the IUE objected to Woodka's unsupported conclusion, counsel for the Respondent
conceded: "This witness is not competent to testify as to the facts of the
order[s]... . No other witness was called by the Respondent who was offered
as "competent" to testify as to the "facts of the orders." Taxon admitted that if
orders were not turned over to him he could not schedule them for production. No,
orders themselves or records of orders were brought forward at the hearing.
3. Woodka also claimed that his "financial situation" necessitated the layoff.
Although he admitted that records showing such situation were in existence, they
were not offered at the hearing to support his claim. Woodka also advanced his
financial situation as a reason for interviewing his employees on September 22, and
claimed that just before this he had received from his accountants a report showing
that for the first 6 months of the year he had had a "nice" loss of "approximately
twenty thousand dollars." Not only is it unreasonable to believe that not until
September had the active head of a going concern had an accounting of his profit
and loss for the 6 months ending June 30, but his later testimony refutes even the
possibility. He then admitted that "as president of the company," he maintained
"an awareness constantly of the cash position , financially ," of the Company. Fi-
nally, not long before the layoff, Woodka had completed the construction of a new
addition to the plant , costing about $ 130,000.
In short, the Trial Examiner is convinced and finds that the preponderance of
credible evidence sustains the allegations of the complaint as to the layoff of
October 10. Woodka's motive clearly was to discourage IUE membership and
activity. The layoff of the 11 named individuals was discriminatory, and interfered'
with , restrained , and coerced employees in the exercise of rights guaranteed by
Section 7 of the Act.to
9 That failure to produce records may be considered by a Trial Examiner as a factor in•
determining relevant issues has been approved by the Board in Missouri Transit Conipani,
etc, 116 NLRB 587, 588, 601.
10 General Counsel adduced a good deal of credible testimony, which the Trial Examiner
believes unnecessary to relate here since the above conclusions rest upon even broader
grounds, from a number of employees and the shipping clerk regarding Woodka's claim of
lack of work Much of such testimony is not specifically contradicted For example,
Glenn Brown, in charge of shipping and part of whose duties it was to handle purchase
orders as well as production orders, testified without credible contradiction that in the
month of October there were work orders on hand for which production had not been
started-and he cited a specific customer 's order which had not been started before the
walkout of October 24 . He also testified that although it was his duty to receive re-
1 1 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this point the Trial Examiner concludes and finds that certain of the items of
conduct noted heretofore, leading to the conclusions as to the unlawful layoff, also
constitute violations of Section 8(a)(1) of the Act. Such conduct includes:
Woodka's interrogation of employees on September 22 as to whether or not they
had signed cards and as to who had asked them to sign, his statement to them that
he "would never accept" a union like IUE, his threats (1) that he would eliminate
another mill if necessary and (2) that if they went on strike they would be "walking
out there a long, long time," and finally, his statement to all assembled employees on
October 7 that if they wanted a union he would get them one.li
D. Events leading to the second layoff and the walkout
On October 16 about a week after the above-described unlawful layoff, the
Regional Office conducted a hearing on the petition filed by the IUE. It is undis-
,puted that at this hearing IUE Representative Barkley placed on a table before
Woodka and his counsel signed union cards, proffering them for inspection. It is
likewise uncontradicted that Woodka's counsel told Barkley that the Company
would not consider recognizing the IUE as the collective-bargaining agency for the
employees 12
On or about October 19, Production Manager Gondek told employee Niesen,
according to the latter's uncontradicted testimony, that "Joe" (Woodka) was "sore"
and had said that anyone in sympathy with "this thing" was "just as liable" as if
he had signed a card.
During the same period Woodka warned employee Rosploch that he wouud get a
2-week layoff if caught putting union literature on the plant bulletin board.
Woodka further told him that he knew he was one of the organizers, and warned
him to "take his union" out of the front gate.
On October 23 Superintendent Briesch warned employee Ruckert that if he went
on strike he could be replaced by the "right-to-work" law. During the afternoon
of the same day Gondek told employee Nowinski that he could be replaced if he
struck, but promised that if he would not go on strike he could always have a job
at the plant.13
Also on October 23 Woodka posted a notice announcing the layoff of seven more
employees-all of whom this time were unquestionably known by management to be
IUE adherents, since they had openly been wearing union buttons. The notice listed
the following for layoff at the close of the work shift the next day, October 24:
Richard Banicki Jerome Badur
Edward Rosploch Verling Kershner, Jr.
Edmund Bentkowski Louis Resnick
Frank Wasielewski
Among other things the notice said:
The Company regrets the necessity for taking the following action, but within
the foreseeable future, can see no opportunity of it being able to provide work
for this group.
That night 22 employees gathered at Barkley's home and voted unanimously to
strike the next day in protest against the layoffs.
E. The strike
About 9:30 a.m. on October 24, 23 workers walked out-only 7 production
'employees remaining-and proceeded to picket the plant carrying signs bearing
legends protesting, among other things, against the "unfair layoffs."
turned goods, none were received either in September or October, nor had there been any
customer complaints Employees testified, without contradiction, that in previous years
the slack seasons were usually in the early part of the year, while the peak was in
October and November Kopczynski, a chemaker who had been hired by Woodka in
April 1958 and promised steady work, testified that when he was suddenly laid off he had
about "ten or twelve" weeks' work, still uncompleted, ahead of him
u The Trial Examiner is of the opinion that it was unmistakable and forthright inter-
ference for the employer here to assemble all employees, during working hours, and
announce that he would assume the right which Congress specifically accorded to them.
52 The same attorney, appearing for the Respondent at these proceedings, admitted that
he represented the Employer at the 11-hearing on October 16
13 Gondek denied only his promise of continued employment if the employee did not
strike His denial is not credited. As noted above, it is undisputed that Gondek told
employee Niesen that Woodks would hold TUE sympathizers "liable."
LOCK JOINT TUBE COMPANY 1163
Soon after the walkout began, Woodka went to the front of the plant and while
walking inside the fence apparently made note of the employees picketing. As he
neared IUE Representative Barkley he called out, within hearing of striking em-
ployees, "Thanks a lot, Barkley, for letting me hire a new work force." His remark
was heard by employees.
Either just before or after his remark to Barkley, Woodka told Leadman Lagodney,
who at that time had not yet joined the strikers, that "them guys out there are all
fired," and to prepare to break in new help.14
F. Conclusions as to the latter layoffs and nature of the strike
Although the October 24 walkout occurred before the close of the shift that day
and so before actual effectuation of the layoff notice posted the day before, this fact
is of hearing upon the backpay issue, not the question of Woodka's motive in order-
ing the layoff.
The Trial Examiner concludes and finds that Woodka's motive in precipitating
this latter layoff was unlawful, and identical in nature with his purpose in ordering
the October 10 layoff. The action was plainly designed to rid the plant of union
adherents.
This conclusion is firmly supported by the following:
1. The undisputed fact that a few days before this action, at a Board proceeding,
and despite proffered representation proof, counsel for the Respondent told the
IUE representative that the Respondent would not consider recognizing the IUE.
2. Gondek's statement to employee Niesen after that hearing to the effect that
Woodka was "sore" and would hold IUE sympathizers as "liable" as those who had
signed cards.
3. Woodka's warning to Rosploch (who was on the October 24 layoff list) that
he knew he was one of the "organizers" and his direction to him that he "take his
union" out of the front gate.
4. The findings and conclusions heretofore made as to the antiunion cause of the
October 10 layoff.
5. The complete lack of merit in the Respondent's claimed reasons for ordering
the second layoff, including:
(a) Woodka's contention that it was necessitated by a further reduction in orders.
As in other matters his claim on this matter is without any documentary support,
and his unsupported testimony has heretofore been found unreliable. On the con-
trary, there is credible testimony by employee Wasielewski (also included in the
October 24 layoff), not convincingly explained by management witnesses, to the
effect that production orders, which customarily had been posted on the bulletin
board in the plant, were removed after the early part of October. His testimony is
corroborated by Leadman Lagodney, who placed the removal date as after the
October 10 layoff. It is uncontradicted that when Lagodney asked Gondek regard-
ing the removal of such orders, Gondek gave him no reply. Finally, as noted
earlier, his counsel conceded at the hearing that Woodka was not competent to
testify as to the facts of orders.
(b) The Respondent's claim to the effect that the second layoff was merely
an extension of the first and for the same economic reasons. It has previously been
found that the reasons advanced for the October 10 layoff lack any credible docu-
mentary support, although Woodka admitted that company records were kept and
available.
The Trial Examiner believes it unnecessary to burden this report with analysis of
the question as to whether or not specific individuals were laid off out of seniority
on October 24, or whether or not the selection of such individuals was otherwise
discriminatory. The question of such individual discrimination would be pertinent
only: (1) if it were assumed or found that there was merit in the Respondent's
claim of economic necessity for the layoffs, or (2) if appraisal of management's
testimony as to reasons for certain selections were necessary to determine the merit,
or lack of merit, in its evidence as to the motive for the layoff in general. It has
been found that the motive for precipitating both layoffs was unlawful. It follows
that all- employees thus laid off were illegally discriminated against, whether selected
by seniority or not.is
14 The Trial Examiner cannot credit Woodka's eventual denial that he made this state-
ment to Lagodney, since it was finally pressed from shim by his counsel. Until it became
clear to Woodka that a flat "no" was expected of him lie said merely that he could
recall no conversation of this nature
is One point, however, so clearly demonstrates the untrustworthiness of the testimony
of management witnesses that it warrants comment. Although in relating their claimed
reasons for selecting certain individuals for the latter layoff, both Woodka and Taxon
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further found that by discriminatorily posting the layoff notice on October
23, and by the above-quoted remarks in F 1, 2, and 3, by counsel, Gondek, and
Woodka, the Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act.
Contrary to the Respondent's contention, the preponderance of credible evidence
fully supports the allegation of the complaint that the walkout or strike beginning
on October 24 was caused by the Respondent's unfair labor practices. Management
officials and counsel had made it clear by coercive statements and direct action that
employees were being denied their statutory rights. And by bearing picket signs
protesting against the "unfair layoffs" the employees openly publicized the reason
for the action. On the morning of October 24 Woodka could have had no reason-
able doubt as to why his employees were striking or as to what he must do to remedy
the situation.
That Woodka in effect welcomed the strike, also, is made clear by his above-
quoted remarks to the IUE representative and to his own leadman-thanking the
one for making possible, and telling the other to prepare for, a new work force.
G. The discharges of December 4
As found above, an overwhelming majority of the Respondent's employees demon-
strated their adherence to the IUE as their bargaining representative on October 24
by going on strike. Not only did all who walked out that day remain on strike,
but they were shortly joined by others of the seven who remained in the plant at
the time of the walkout. The uncontradicted testimony of Captain Andrew Orban
of the South Bend Police Department is to the effect that the morning the strike began
he was asked by IUE Representative Barkley and employees on the picket line to try
to persuade the mayor of South Bend to conduct an immediate election. According
to the captain, the mayor agreed but Woodka declined to do so without permission
of counsel. And a few days before, as found heretofore, the Respondent's counsel
had made it plain that whether or not the IUE represented a majority-card proof
having been offered in the presence of a Board agent-Woodka would still refuse
to recognize the labor organization.
On November 25, however, the Board issued its order directing that an election
be held, and stating that the critical date for eligibility to vote should be the payroll
date immediately preceding issuance of the order, which was November 21. The
same order contained the usual phrase: "Ineligible to vote are employees who have,
since that period, quit or been discharged for cause and have not been rehired or
reinstated before the election date and employees on strike who are not entitled to
reinstatement." Upon receipt of this direction, Woodka promptly took action which,
were it to be considered legal, would effectively silence the elective voice of almost
all strikers, including those whom Woodka had illegally laid off in October. He
sent 22 striking employees letters of discharge on December 4 and omitted their
names from the eligibility list.
Each letter of discharge stated that the reason for termination was "misconduct in
connection with current strike activities." All letters were of the same text; none
cited any specific item of misconduct claimed.
Although counsel for the Respondent in the answer alleged no affirmative defense
to the allegation in the complaint that these discharges were violative of the Act,
and declined at the hearing to specify reasons for these discharges until the close
of General Counsel's case, he thereafter orally claimed that the December 4 dis-
missals were because all the individuals involved, at one or more occasions between
October 24 and that date, had engaged in misconduct justifying the discharge action,
and he was thereupon permitted to produce evidence pertinent to his claim.
The employees to whom letters of discharge were sent are:
William Kuntz Morris Schiettecatte Zigmunt Kendziorski
Eugene Wojtas Xavier Debaets William Lagodney
Stanley Jaroszewski Arthur Ruckert William Nijak
Joseph Niesen Jerome Badur Stanley Hes
Edmund Bentkowski Edward Rosploch Richard Banicki
Verling Kershner, Jr. Louis Resnick Frank Wasielewski
Joseph Chrzan Stanley Repczynski John Nowinski
Donald Tarwacki
blandly referred to employee "classifications," the former finally admitted on cross-
examination that employees had never been informed that any such classifications existed.
No records were produced to support the claim, and it appears obvious to the Trial
Examiner that had the employees in fact been classified, in some form each worker's
classification would have been somewhere recorded.
LOCK JOINT TUBE COMPANY 1165
A great deal of confused, inconsistent, and even contradictory testimony was
elicited from the Respondent's witnesses as to events which they claim occurred on
October 24, 27, and 28 and November 3, 4, 5, 7, 13, 14, and 28.
As briefly yet as comprehensively as possible the Trial Examiner will: (1) appraise
the evidence and note his determination as to just what did happen on specific
occasions, and (2) set out his conclusion as to whether or not individuals involved
actually engaged in "misconduct" reasonably warranting discharge, applying the
test of Board standards on this subject both articulately and fully set forth in its
recently filed brief with the United States Court of Appeals, Tenth Circuit, in
N.L R.B. v. Wichita Television Corporation, Incorporated, d/b/a KARD-TV, on
petition for enforcement of its Decision and Order 122 NLRB 222.
At the outset, it may be well to dispose of one facet of the Respondent's argument
in its brief. Counsel refers to "unlawful conduct" on the part of strikers during
the material period. The record contains no evidence that any striker, at any time,
has been found guilty of law or ordinance violation, by any magistrate or court, or
that any striker has ever been arrested, or that any charges were ever drawn by
Woodka-although it appears from the latter's testimony that police officers were
present a good part of the time. It seems unnecessary to consider further what
seems to be only a statement of opinion by counsel, no matter how honestly held.
Furthermore, it may be well to stress here the fact that the principal issue, as
raised by the Respondent, is not one of each employee's qualification for reinstate-
ment, in compliance with a remedial order, but whether or not there is sufficient
merit in the Respondent's claim of misconduct as the reason for the dismissals to
overweigh the prima facie case of General Counsel, who throughout the proceedings
retained the burden of his allegation that the (or a) reason for the discharges was
to discourage IUE membership and activity.
October 24 (first incident): Early in the afternoon of the first day of the strike,
and for the first time in 5 years according to his own testimony, another local
employer, William Jontz, appeared at the plant as passenger in the cab of his truck
driven by James Woods. Woodka and Jontz were the chief witnesses for the Re-
spondent as to what happened after Jontz and his truck arrived. Their testimony
is not only so mutually inconsistent but also, when considered in the light of General
Counsel's rebuttal witness, Captain Orban of the South Bend Police Department, so
clearly distorted and deceptive of the whole truth, as to cast discredit upon all of
their testimony. According to Woodka, who claimed he first saw the truck arrival
from his office window, some distance away, at least 14 strikers whom he named
were so circling in front of the gateway as to prevent the truck's entry for 15 minutes.
Jontz, however, who was in the truck, made no such claim-or any claim-of
appreciable delay in entering the premises, and he said that when he pulled up at
the gate there were "two or three men there." According to Jontz, all that happened
at this juncture was that some unidentified picket told his driver not to go in but
that they backed in anyway. After the truck had reached its destination on the
premises, according to Woodka, pickets completely blocked the gateway exit with a
number of cars, thus preventing Jontz from leaving the premises. Jontz, on the
other hand, admitted that he made no attempt to leave, and in fact was ordered not
to leave by Captain Orban. The real truth of this incident was more nearly ap-
proached later, through the testimony of a disinterested person, Captain Orban, and
of strikers involved. Jontz became angry when his driver was told not to go in (the
police officer stated that Jontz admitted to him that he got "mad") and shoved
down on the driver's foot and the accelerator, causing the truck to back suddenly
and violently enough to knock down and injure one of the pickets. (It is here noted,
as an example of Woodka's withholding the whole truth, that he denied hearing of
any "accident" that afternoon, although both Jontz and the police captain were in
his office.) After removing their injured fellow-striker to a safe spot, pickets
promptly telephoned for police assistance and then placed a number of their cars
at the gate in such a way as to make certain that Jontz did not leave before the
police arrived. According to Captain Orban, as soon as he arrived and asked the
strikers to move their cars they did so.
It appears to the Trial Examiner unnecessary to belabor this incident further.
Whether or not the strikers were morally justified in blocking the driveway until
the police arrived, it is clear that the police took no punitive action. Their purpose
was plainly that of holding Jontz there until police came, as presumably any normal
group of citizens would have done. Their conduct may not be considered, by any
reasonable standard. to have been misconduct warranting discharge.
In passing, it is to be noted that in this occurrence is depicted the sole incident
revealed by the record of personal injury during the strike-and it was a picket who
was injured.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 24 (second incident) : This claimed item of misconduct occurred late in
the afternoon of the same day, at a time when the few employees who had remained
at work left the plant in their cars. Woodka's testimony about it reveals little, not
only by reason of his unreliability as a witness, as heretofore found, but also be-
cause he admitted that he was at least 110 feet away at the time. There is testimony
by nonstriking employee Nowaczewski that as he drove through the gate striking
employee Stanley Hes told him not to come in to work the following Monday or he
would be sorry. Hes denied making the statement, and the denial is credited.
Nowaczewski did return to the plant the following Monday morning, and according
to his own testimony merely turned around and went home. He made no claim that
anyone threatened him with any violence that day. Furthermore, even if Hes had
actually made the remark, it would not constitute a reasonable basis for a mis-
conduct discharge, under the circumstances of this case, in the opinion of the
Trial Examiner.
October 27: The testimony of the Respondent's witnesses as to this date is so
confused and mutually inconsistent as to be wholly untrustworthy. Although
management witnesses testified largely from memoranda which they claimed were
made at the time, Woodka and Gondek would have it found that a few nonstriking
employees tried to, but were prevented, from entering two separate gates at the same
time. Woodka said that one nonstriker, Martell, was prevented by strikers from
entering for a "good fifteen minutes" and that he, himself, then told Martell to go
home. According to the testimony of Martell, also a witness for the Respondent,
he merely drove slowly up to the circling pickets, was told by striker Badur that
"we wouldn't touch you for anything," but "we want to get a union in here."
Apparently he turned around and left-nothing in his testimony indicates that he
was threatened by the pickets or told to go home by Woodka. Two of the Re-
spondent's witnesses (Jastrzebski and Naumowicz) required the services of an inter-
preter, and their testimony is not clear. Even if the former is to be believed, the
only thing that happened to them is that one picket, Banicki, when they arrived in
the same car, told them that they would not be prevented from going in, but he
could not guarantee their coming out. The latter's story, however, is to the effect
that all Banicki said was "go home, don't interfere."
As to this incident there was neither violence nor threat of violence, and clearly
no misconduct warranting discharge of any picket.
October 28. The sole import of this alleged incident, even if Woodka were to be
believed, is that he was delayed for a few minutes in driving through the circling
picket line into the premises. He claimed that he stopped his car in the road before
the gate, waited for some 10 or 12 minutes, and then drove through. Having ob-
served Woodka not only as a witness but at counsel's table for nearly 2 weeks, the
Trial Examiner is inclined to agree with General Counsel's contention in his brief
that Woodka would have been far out of character to sit idly, saying nothing, for
that length of time, had he believed the pickets were trying to bar his entry to his
own plant. For this and the many other reasons heretofore set out the Trial
Examiner cannot credit his account of this incident.
November 3: Three minor incidents involving neither violence nor threats of
violence are claimed as misconduct. The first concerns Woodka and an office
worker, Pat Martell. It is the former's claim that he was delayed for 15 minutes in
entering the piemises by circling pickets. Martell, however, in the car with him said
that the delay was no more than 3 minutes. Under circumstances of this wide
variance in estimate of time, the Trial Examiner can rely upon the testimony of
neither witness. Further, since Woodka stated that the chief of police was there at
the time, it is unreasonable to infer that the strikers on this occasion forcibly pre-
vented his entry. As to the second item, there is inconsistent testimony from non-
strikers Naumowicz, Jastrzebski, and Nowaczewski; that of the first two, as noted
before, requiring the aid of an interpreter. It appears that these three arrived at a
gate in one car and stopped outside the entry. As witnesses they were not in agree-
ment as to whether striking employee Banicki, or Stanley Ladd, not an employee
but a union representative, told them that one of them should go in but the others
remain outside. There appears to have been no serious misconduct, even if Banicki
himself made the statement. There was no threat of violence. As to the third
trivial incident, it seems that nonstriker Andrew Sloboda drove up to the picket line,
heard some profane language from unidentified persons, and so went home.
The Trial Examiner is unable to find credible evidence of any specific misconduct
warranting discharge on the part of any striker that morning.
November 4: The testimony of the Respondent's witnesses clearly points to an
occasion of attempted entrapment on this morning. Again it involved Jontz and his
truck. According to Jontz he was told by Woodka to be at the plant at precisely
LOCK JOINT TUBE COMPANY 1167
10:45, and that the police would be there. So, also, was Woodka and his camera,
as well as a newspaper photographer. The credible evidence, not found in the in-
consistent testimony of Jontz and Woodka, but in the testimony of Woods, the
truckdriver, is to the effect that while the truck did drive up near the gate, it stopped
outside the gate and no effort was made to back into the premises. Jontz and
Woodka talked for awhile, Woodka took a picture, and then the truck drove away.
The Trial Examiner perceives no act on the part of any picket which may reason-
ably be characterized as misconduct.
November 5: For the first time since picketing began at the plant gates, it appears
that on this morning a car window was broken. The car was driven by E. Szajko,
who had apparently been hired the day before to take the place of a striking em-
ployee. The record is barren, however, of any identification of who broke it, or
how it was broken. Woodka did testify that he noted down the names of certain
individuals near the gate that morning, but he also said that there were at least six
individuals also there-including two women-whom he did not know. Szajko
himself failed to testify-if he knew-how his window was broken. It appears to.
be the Respondent's position that the 8 pickets Woodka did see near the gate must
be held responsible for what more than 100 unidentified individuals may have
done-since it was established that immediately across the road from the gate were
about 100 persons, unidentified, who may or may not have appeared there as a result
of Woodka's advertisement the day before for new employees. Whoever broke the
window, if it was broken from outside, the incident was isolated, and there is no
evidence that any applicant for employment was prevented from entering the
premises. It was admitted by Woodka that he interviewed a number of such appli-
cants in his office.
November 7: Late in the afternoon, when a number of nonstrikers were leaving
the plant, a large mob of unidentified people, and many police, were gathered out-
side the gate. There can be no question but that the mob was unruly and dis-
orderly, and that the exit of the cars was impeded for about one-half hour. The
back window of one car was broken. Among the mass of several hundred people-
according to management witnesses-Taxon named some rune strikers as being near
the gate. No police officers were called as witnesses. Even if Taxon's identification
of nearby pickets be accepted, he testified as to no action on their part which could
be found as misconduct. As to the broken window, new employee Leonard Cousins
said he saw striking employee Chrzan break it. The Trial Examiner cannot accept
his unsupported identification. In the first place, Cousins admitted he did not know
Chrzan at the time, but that someone else gave him the name several weeks later.
In the second place, Cousins could not recall who else was in the car with him.
Finally, another witness for the Respondent, Szajko, who left the premises in the
car immediately behind Cousins, said he saw Chrzan when they reached certain
railroad tracks some 400 feet away.
In short, while there was disorder on this occasion, there is no substantial identifi-
cation of any one of the strikers as having done anything except be in the neighbor-
hood. There is no evidence of any arrests or of any charges filed against any picket.
Since identification failed, the Trial Examiner can make no finding that any picket-
engaged in any specific misconduct.
November 13: Additional support for the above conclusion that the strikers may
not reasonably be held responsible for disorder of unidentified individuals in a mob
is found in the facts of an incident of November 13, nearly a week later. According
to Taxon, as he was leaving the plant that day with a number of nonstriking em-
ployees in his car, some 13 pickets whom he identified were circling in front of the
exit gate. Police were there, opened the way, and Taxon went through. There is
no evidence that he was stopped or prevented from leaving or that any damage was
done to his car. Clearly there was no misconduct on this occasion.
November 14: Equally trivial is this incident. Again it appears that Woodka
voluntarily stopped his car in the road, waited a few minutes, and then went in with
no attempt having been made by pickets to prevent it. Since Woodka testified that
there were three policemen there at the time-and made no claim that he asked them
for assistance-it is apparent that whatever delay occurred was of his own volition.-
November 28: This is the last day of incidents claimed by the Respondent as
misconduct warranting discharge. The evidence reveals neither violence nor threat
of violence by any of the several pickets circling at the plant gate. While there is.
testimony that on this occasion IUE Representative Barkley did put a hand on the
arm of one newly hired employee and tell him not to go in, this same employee
admitted that he decided not to go in and willingly accepted Barkley's invitation to,
ride back into town with him. And that afternoon, as nonstrikers left the plant,
they were called names. The Trial Examiner discerns no credible evidence in the:
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record that any picket that day engaged in misconduct of a nature reasonably war-
ranting discharge.
In conclusion, the Trial Examiner finds no merit in the Respondent's claim that
misconduct on the part of the named 22 pickets was the cause of their discharge.
The evidence adduced by the Respondent falls far short of being convincing that
under any circumstances would a reasonable employer consider the conduct above
described as sufficiently serious for discharging 22 employees.16 And it falls equally
short of outweighing the facts which support General Counsel's case.
From the very beginning of the strike-and even before it began-Woodka openly
expressed his intention of ridding the plant of IUE sympathizers. He unlawfully
laid off many employees. Immediately after the walkout he made it clear that all
participants were through. The Trial Examiner is convinced that Woodka had no
intention from October 24 on of reinstating any of the strikers.
His action of sending the letters appears from the record to have no other reason-
able explanation than that found in the timing. Within a few days after November
25 he was confronted with the Board's order directing an election, in which either
he or his counsel presumably observed the provision that employees "discharged for
cause" would not be eligible to vote. He thereupon sent out the discharge notices,
and at the election through his observers challenged the ballots of such employees
on the grounds that they had been discharged for cause
The Trial Examiner is convinced and finds that the real reason for the 22 dis-
charges of December 4 was Woodka's intent to prevent these employees from
exercising their voting rights at the Board election, and his continuing intent to
discourage membership and activity in the IUE. Being discriminatory, and for the
purpose stated, the discharges also constituted interference, restraint, and coercion
of employees in the exercise of rights guaranteed by the Act.
H. The challenged ballots
At the election on December 11, 1958, the Respondent challenged the ballots of
27 voters on the ground that they had been strikers in an economic strike and had
been replaced.17 As additional grounds for its challenge of 22 of this number the
Respondent claimed that they had been discharged on December 4 for misconduct.
The Trial Examiner finds no merit in either ground. As found at length above, the
strike was caused by the Respondent's own unfair labor practices And it has also
been found that the claimed reason for the December 4 discharges was a mere
pretext. .It is therefore recommended that the Respondent's challenges of the said
27 ballots be overruled, and the ballots counted.
The Respondent also challenged the ballots of C. Kopczynski and W. Botka on
the ground-conceded by General Counsel to be a fact-that sometime after
November 24 they notified the Respondent that they had quit and obtained employ-
ment elsewhere. The fact appears to the Trial Examiner to be immaterial These
2 employees, as found above, were among the 11 discriminatorily laid off on October
10. They continued to be employees, within the meaning of the Act, until they
were reinstated or declined reinstatement offered by the Respondent. No offer of
reinstatement had been made to them on or before November 21, the critical date
of the eligibility list. It is therefore recommended that the Respondent's challenges
as to these two employees be overruled and that their ballots be counted.
The IUE, at the same election, challenged the ballots of 12 employees, all of whom
had been first hired on November 4 or thereafter 18 It has been found above that
on October 10 and 23 the Respondent unlawfully laid off a total of 18 employees.
Had the Respondent not illegally created these vacancies, it is reasonable to believe
that none of the 12 named in the footnote below would have been hired. The Trial
Examiner therefore recommends that the challenges to their ballots be sustained,
and that their ballots not be counted.
16 Furthermore, the Trial Examiner believes that Woodka is of a nature possessing
normal human impulses, and under no circumstances would delay exercising his employer
right to discharge for as long a period as many weeks after a genuine cause came to his
attention
17 Badur, Kuntz, Bentkowski, Bolka, Sroda, Schiettecatte, Lagodney, Egyhazi. Nijak,
Resnick, Samszewski, Noimmnski, Chrzan Repezynski, Tarwacki, Kershner, Dehaets, Ruckert,
-Hes, Topolski, Banicki, Rosploch, Wasielewski, Krzyamak, Wojtas, Kendziorski, and
Niesen
13 Agnew, Hayes, Olds, Smith, Cousins, Krienke, Orban, Szajko, Etter, McFarland,
Palkowski, and Wismewski
LOCK JOINT TUBE COMPANY 1169
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that on October 10, 1958, the Respondent unlawfully laid off
the following employees:
(a)
Walter Bodka Tadeusz Topolski
Martin Bleich Chester Kopczynski
Roman Bolka Norman Deckard
Carl Egyhazi Edward Pishnoff
Burt Krzyzaniak Burt Sroda
Walter Biskupski
During the hearing the parties stipulated that of the above-named employees in
group (a) the following were sent offers of return to work on November 25:
(b)
Topolski Krzyaniak Kopczynski
Pishnoff Bolka Botka
Bleich Sroda
It was also stipulated that of group (b) the following thereafter notified the Respond-
ent that they had taken employment elsewhere:
(c)
Kopczynski Pishnoff Botka
and that no response was received from Topolski, Krzyaniak, Bolka, and Sroda.
Bleich returned to work on November 26 and Biskupski accepted an offer to return
made on November 26.
In order that full rights may be restored to all employees unlawfully laid off on
October 10, and since the record does not establish clearly whether or not those
named in group (a) above who either failed or declined to return did so because
they preferred to make common cause with the other employees on strike, it will
be recommended that the Respondent offer immediate and full reinstatement to
their former or substantially equivalent positions each of the employees named in
group (a) above, except Bleich and Biskupski, without loss of seniority or other
rights and privileges. It will also be recommended that the Respondent make whole
each of the employees listed in group (a) above from October 10, 1958, to the date
of the Respondent's offer of reinstatement-such date being in the case of the
employees named in group (b), above, November 25, and of Biskupski November
26, 1958. These employees shall be made whole in accordance with Board policy
and procedure set forth in F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent unlawfully discharged the following
named 22 employees on December 4, 1958:
(d)
J. Badur Z. Kendziorski L. Resnick
R. Banicki V. Kershner S. Repczynski
E. Bentkowski W. Kuntz E. Rosploch
J. Chrzan W. Lagodney A. Ruckert
X. Debaets J. Niesen M. Schiettecatte
S. Hes W. Nijak D. Tarwacki
S. Jaroszewski J. Nowinski F. Wasielewski
E. Wojtas
It will therefore be recommended that the Respondent offer them immediate and
full reinstatement to their former or substantially equivalent positions, without loss
of seniority or other rights and privileges, and make them whole for any loss of pay
560940-61-vo1 127-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of such discrimination in the manner prescribed by Board policy and
procedure as set out in the above-cited case.
In the opinion of the Trial Examiner the above-described unfair labor practices
indicate an opposition on the part of the Respondent to the purposes of the Act
generally. Therefore , in order to make effective the interdependent guarantees
in Section 7 of the Act , thereby minimizing industrial strife which burdens and
obstructs commerce , and thus effectuate the policies of the Act , it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminatorily laying off and discharging employees as found herein to
discourage membership in and activity on behalf of the above -named labor organi-
zation, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Gary Steel Products Corporation I and United Steelworkers of
America, AFL-CIO, Petitioner . Case No. 11-RC-1335. June
15, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Lewis Wolberg, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel [Mem-
bers Rodgers, Bean, and Fanning].
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
'The name of the Employer appears as amended at the hearing.
2 The hearing officer referred the following motions to the Board : ( a) A motion to
dismiss because the Employer had not received a request for recognition before the peti-
tion was filed ; and ( b) a motion to strike the testimony of Petitioner's witness Edward
Weeks because he refused to answer certain questions during cross -examination. As
to (a), the filing of the petition itself constitutes a sufficient demand, and as the
Employer declined to recognize the Petitioner at the hearing , the motion to dismiss is
denied, Gordon B. Irvine, 124 NLRB 217 , at footnote 3; as to ( b), this . referral was an
error as the Board's Rules and Regulations , Series 8 , as amended , Section 102.66(d)(3),
provide that such motions are directed to the discretion of the hearing . officer. However,
we do not consider the hearing officer 's rulings prejudicial to any of the parties and shall
not strike the testimony , but leave and consider the record as it was made before the
hearing officer . Winn-Dixie Stores , Inc., et al ., 124 NLRB 908 , at footnote 2.
127 NLRB No. 148.