Luzerne Hide and Tallow Co.

National Labor Relations Board - Board Decisions

May 4, 1950

89 N.L.R.B. 989 (N.L.R.B. 1950)

In the Matter of FREDRICA CLAUSEN, DOING BUSINESS AS LUZERNE HIDE
AND TALLOW COMPANY 1 and STERLING KISHBAUGH, SR.
In the Matter of FREDRICA CLAUSEN, DOING BUSINESS AS LUZERNE HIDE
AND TALLOW COMPANY and LEE SCHELL
In the Matter of FREDRICA CLAUSEN, DOING BUSINESS AS LUZERNE HIDE
AND TALLOW COMPANY and LESTER ROTH
In the Matter of FREDRICA CLAUSEN, DOING BUSINESS AS LUZERNE HIDE
AND TALLOW COMPANY and HENRY ERTWINE
In the Matter of FREDRICA CLAUSEN, DOING BUSINESS AS LUZERNE HIDE
AND TALLOW COMPANY and HOWARD D. YODER
In the Matter of FREDRICA CLAUSEN, DOING BUSINESS AS LUZERNE HIDE
AND TALLOW COMPANY and HARRY KISHBAUGH
In the Matter of FREDRICA CLAUSEN, DOING BUSINESS AS LUZERNE HIDE
AND TALLOW COMPANY and BEATHIER SCHLOYER
Cases Nos. 4-CA-157, 4-CA-158, 4-CA-159, 4-CA-160, 4-CA-161,
4-CA-162,4-CA-163.-Decided May 4, 1950
DECISION
AND
ORDER
On December 29, 1949, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that she cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief,
and the General Counsel filed a brief. The Respondent requested oral
argument. This request is hereby denied because the record, excep-
tions, and brief, in our opinion, adequately present the issues and posi-
tions of the parties.
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
' The complaint was amended at the hearing to show the name of the Respondent as
it appears herein.
R Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a three -member panel
[Members Houston, Reynolds, and Murdock].
89 NLRB No. 119. 989
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case, and hereby
adopts- the findings, conclusions, and recommendations of the Trial
Examiner with the modifications noted below.
1. The Respondent contends that Section 9 (f), (g), and (h) of
the Act requires the dismissal of the complaint as to some of the
charging parties who are admittedly officers of a noncomplying union.
For the reasons stated in the Intermediate Report, we agree with the
Trial Examiner in his finding that Section 9 (f), (g), and (h) does
not affect these individuals in their right to file charges alleging viola-
tions of the Act.'
2. We agree with the Trial Examiner that Section 10 (b) of the
Act does not prohibit the introduction of evidence of events which
occurred before the prescribed 6-month period. That section prevents
the issuance of a complaint based upon such acts. It does not foreclose
the Board from accepting evidence of those events for the purpose of
throwing light upon acts which happened within the 6-month period."
3. The Trial Examiner found that the 6-month period specified in
Section 10 (b) of the Act dates back not from the time of the filing of
the charge but from, its service upon the Respondent. On the cir-
cumstances of this case, we agree with this holding.5 However, at one
point in his Report, the Trial Examiner seemed to construe the date
of mailing of the charge as the date of service. Since it is not ma-
terial here to decide whether the mailing of the charge or the receipt
thereof by the Respondent constitutes service, we do not pass upon
the apparent resolution of this question by the Trial Examiner.
4. The Trial Examiner found that by the Respondent's statement
to the striking employees on July 1, 1948, the Respondent violated
Section 8 (a) (1) of the Act; however, he found that due to the run-
ning of the limitations of Section 10 (b), the violation was not re-
dressable. The Trial Examiner also found that such acts of the
Respondent on July 1 did not prolong the strike and therefore did not
convert the economic strike into an unfair labor practice strike.
Agreeing, as we do, with the finding that the Respondent's conduct on
July 1 did not prolong the strike, we find it unnecessary to reach any
conclusions as to the nature of that conduct. We therefore do not
adopt the finding of the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act on July 1, 1948.
J B. F. Goodrich Company, 88 NLRB 550; Augusta Chemical Company, 83 NLRB 53.
4 Crowley's Milk Companyy, Inc. (Paterson Division), SS NLRB 1040; Arelson Maun-
fecturing Company, 88 NLRB 761.
5 We do not pass upon the question of which would be the crucial date if the service
of the charge preceded the filing thereof.
LUZERNE RIDE AND TALLOW COMPANY 991
5. The complaint in paragraph 12 charged the Respondent with
interrogating and threatening her employees during the months of
June and July 1948. The record shows no evidence of interrogation
and threats within the period of limitations specified.by Section 10
(b) and the Trial Examiner made no findings in this respect. We
find, therefore, that the Respondent did not violate the Act as charged
in paragraph 12 and we will dismiss that part of the complaint.
Remedy
Having found that the Respondeit has engaged in unfair labor
practices , we will order that she cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act and to restore as nearly as possible the conditions which existed
prior to the commission of the unfair labor practices.
We have found that the Respondent has discriminated with regard
to the hire and tenure of employment of the employees listed in Ap-
pendix A. We will therefore order that the Respondent offer to each
of those employees reinstatement to his former or substantially equiva-
lent position , and make them whole for any loss of pay suffered by rea-
son of the Respondent 's discrimination against them . The offer of
reinstatement shall be without prejudice to their seniority and other
rights and privileges, and such reinstatement shall be effectuated in
the following manner :
All or such number as may be necessary of the persons hired after
July 6, 1948 , the date the employees listed in Appendix A uncondi-
tionally applied for reinstatement , shall be dismissed, if necessary, to
provide employment for those to be offered reinstatement. If, after
such dismissal , there are insufficient positions remaining for all the
employees who were on strike on July 6, the available positions shall
be distributed among all such employees , excluding Kotorski and
Murphy, without discrimination against any employee because of his
union membership , activity , or participation in the strike , following
such system of seniority or other nondiscriminatory practice as here-
tofore has been applied in the conduct of Respondent's business. Any
of the employees listed in Appendix A who are remaining , after such
distribution , for whom no employment is immediately available, shall
be placed on a preferential list, with priority among them determined
in accordance with such system of seniority or other nondiscriminatory
practice as heretofore has been applied in the conduct of Respondent's
business , and, thereafter , in accordance with such list , shall be offered
reinstatement to positions as .provided above , as such employment be-
comes available, and before other persons are hired for such work.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will further order that the Respondent make payment to each
of the employees listed in Appendix A of an amount equal to that
which each of such employees would have earned as wages during the
period from the day on which , absent discrimination against him, he
would have been reinstated had Respondent nondiscriminatorily filled
the vacancies existing on July 6 and which arose thereafter, in accord-
ance with and following such system of seniority or other nondiscrimi-
natory practice as heretofore has been applied in the conduct of the
Respondent 's business , to the date of the offer of reinstatement, less
his net earnings during the period.
We have found that the Respondent by its illegal acts violated Sec-
tion 8 ( a) (1) and ( 3) of the Act . We are of the opinion, upon the
entire record in this case, that the commission in the future not only
of such acts but of other unfair labor practices may be anticipated
from the Respondent 's conduct in the past . We shall therefore order
that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed to its employees in Section 7 of the Act.
We expressly reserve the right to modify the back-pay and reinstate-
ment provisions of our order herein, if made necessary by a change
of conditions in the future , or to make such supplements thereto as
may hereafter become necessary in order to define or clarify their
application to a specific set of circumstances not now apparent.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Fredrica Clausen,
doing business as Luzerne Hide and Tallow Company , her officers,
-agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of her
employees by discharging any of her employees or by refusing to
reinstate them because they have engaged in union or concerted ac-
tivity, or by discriminating in any other manner in regard to their
hire and tenure of employment or any term or condition thereof;
(b) In any other manner interfering with, restraining, or coercing
her employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
LUZERNE HIDE AND TALLOW COMPANY 993
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A immediate and
full reinstatement to their former or substantially equivalent posi-
tions 6 without prejudice to their seniority and other rights and
privileges in the manner set forth above in the section entitled
"Remedy" and place those employees for whom employment is not
immediately available upon a preferential list in the manner set forth
in said section and thereafter, in said manner, offer them employment
as it becomes available;
(b) Make whole the employees listed in Appendix A for any loss
of pay suffered by reason of Respondent's discrimination against them
in the manner set forth above in the section entitled "Remedy";
(c) Post immediately at its office and place of business at Nescopeck,
Pennsylvania, copies of the notice attached hereto and marked Ap-
pendix A.7 Copies of said notice, to be furnished by the Regional
Director for the Fourth Region, shall, after being duly signed by
Respondent's representative, be posted by Respondent immediately
upon receipt thereof, and maintained by her for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(d) Notify the Regional Director for the Fourth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED : (1) that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent has discriminated
with respect to the hire and tenure of employment of George Murphy
and Vincent Kotorski; and (2) that the complaint be, and it hereby is,
dismissed in respect to the allegations of paragraph 12 therein.
See The Chase National Bank of the City of New York, San Juan, Puerto Rico
Branch, 65 NLRB 827 . Approximately 1 month after July 6, driver Lee Schell was
offered a position as night laborer . This would have meant a small reduction in hourly
rate and the loss of the opportunity to earn overtime. The position offered is found
not to have been one substantially equivalent to Schell 's position prior to the strike.
IIn the event that this Order is enforced by decree of a United States Court of
Appeals, there shall be inserted before the words, "A DECISION AND ORDER," on this
notice, the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS
ENFORCING."
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the amended Act.
WE WILL OFFER to the employees named below immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, to the extent and in the manner
ordered by the National Labor Relations Board, and make them
whole for any loss of pay suffered as a result of the discrimina
tion against them.
Lee Schell. Howard Yoder
Sterling Kishbaugh, Sr. Harry Kishbaugh
Lester Roth Beathier Schloyer
Henry Ertwine
All our employees are free to become or remain members of any
labor organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to hire or tenure of em-
ployment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such
labor organization.
FREDRICA CLAUSEN, DOING 13USINESS AS
LUZERNE HIDE AND TALLOW 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.
LUZERNE HIDE AND TALLOW COMPANY 995
INTERMEDIATE REPORT
Mr. Julius Topol, for the General Counsel.
Falvello & Falvello, by Messrs. Rocco C. Falvello and Conrad A. Falvello, of
Hazleton, Pa., for Respondent..
TATEME\T OF TIIE CASESS
Upon charges duly filed on December 29, 194S, by Sterling Kishbaugh, Sr., Lee
Schell, Lester Roth, Henry Ertwine, Howard D. Yoder, Harry Kishbaugh, and
Beathier Schloyer, individuals, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Fourth Region (Philadelphia,.
Pennsylvania) issued a complaint dated September 20, 1949, against Fredrica
Clausen, doing business as Luzerne Hide and Tallow Company,' herein called
Respondent, alleging that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,.
61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice
of hearing thereon were duly served upon Respondent.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged that (1) eight named employees' of Respondent who engaged in
a lawful strike on June 30, 1948, and applied for reinstatement on or about July
6, 1948, were discharged on the latter date and at all times thereafter denied
reinstatement; (2) on or about Jtily 8, 1948, Respondent discharged Beathier
Schloyer and at all times thereafter has refused to reinstate him ; and (3) during
June and July 1948, and at all times thereafter, Respondent has threatened her
employees with discharge and acts of reprisal because of their union membership,
support, and activities and has interrogated them concerning their union affilia-.
tion and activities. Respondent's answer denied the commission of any unfair
labor practices but admitted the allegations of the complaint with respect to the
nature and extent of its business operations.
Pursuant to notice, a hearing was held from October 11 to 14, 1949, inclusive, at
Berwick, Pennsylvania, before the undersigned Trial Examiner, Martin S. Ben-
nett, duly designated by the Chief Trial Examiner. The General Counsel and
Respondent were represented by counsel and all parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues.'
At the hearing, the undersigned denied in its entirety a motion to dismiss the.
entire complaint which had been previously filed by Respondent with the.
Regional Director and referred by the latter to the undersigned for ruling.
The contents of the motion are discussed below. Ruling was reserved on a
notion by Respondent to dismiss the complaint on the ground that a violation
of the Act had not been established; it is disposed of hereinafter. A motion
was made by the General Counsel to conform the pleadings to the proof purely
with respect to formal matters and was granted. At the close of the hearing,
the parties were afforded an opportunity to argue orally and to file briefs
and/or proposed findings of fact and conclusions of law with the undersigned,
' The complaint was amended at the hearing to show the name of Respondent as it
appears herein.
x Their names are Lee Schell, Sterling Kishbaugh, Sr., Lester D. Roth. Henry Ertwine,
George Murphy, Vincent Kotorski, Howard D. Yoder, and Harry Kishbaugh.
:' The exclusion of and restrictions placed upon certain testimony offered by the General
Counsel are discussed below.
8S9227-51-voi. S9-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel argued orally and briefs have been received from the
General Counsel and Respondent. In addition, after the close of the hearing,
the undersigned granted a motion by the General Counsel to correct certain
errors in the transcript of testimony.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Fredrica Clausen, doing business under the trade name of Luzerne Hide
and Tallow Company, has her principal office and place of business at Nesco-
peck, Pennsylvania, where she is engaged in the preparation and sale of animal
hides, meat scraps, and tallow. Respondent annually purchases, in the course
and conduct of her business, raw materials valued in excess of $70,000, of
which more than 25 percent is shipped and transported to Respondent's plant
at Nescopeck, Pennsylvania, from points outside the Commonwealth of Penn-
sylvania. Respondent annually processes and sells prepared hides, meat scraps,
and tallow valued in excess of $100,000, of which approximately 75 percent is
shipped and transported to points outside the Commonwealth of Pennsylvania.
Respondent has contended in proceedings before the Pennsylvania Labor
Relations Board, she herein admits, and the undersigned finds, that she is
engaged in commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
Local Industrial Union 1644 is a labor organization affiliated with the
Congress of Industrial Organizations and admits employees of Respondent to
membership.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's motion to dismiss the complaint
Prior to the hearing, Respondent filed a motion to dismiss the complaint which
was referred by the Regional Director to the undersigned. In essence, it is
contended that some of the individuals who filed the charges upon which the -
instant complaint is based were officials of Local Industrial Union 1644, CIO,
herein called the Union ; that the officials of said labor organization had not
and have not complied with the provisions of Section 9 (f), (g), and (h) of
the Act; and that as a result the complaint was improperly issued. The mo-
tion also urged dismissal of the complaint on the ground that it had been
issued in violation of the 6-month proviso to Section 10 (b) of the Act; this
latter contention is discussed in a later section of this report.
Turning to the earlier part of the motion, it is conceded by the General
Counsel that the Union, which is the labor organization involved in this pro-
ceeding, has not complied with the filing requirements of Section 9 (f), (g), and
(h) of the Act. In addition, it appears that at least four of the various charging
parties named above were officials of the Union. Respondent vigorously con-
tends that the filing of charges by these individuals constitutes fronting in
behalf of the Union and is a stratagem in order to provide access for the Union
to the enforcement machinery of the Board which it is denied by the Act.
* As will appear below, the Pennsylvania Labor Relations Board has dismissed various
representation and unfair labor practice proceedings involving Respondent on the ground
that Respondent is engaged in interstate commerce.
LUZERNE HIDE AND TALLOW COMPANY 997
It is true that soon after the amended Act became effective the Board decided
ns a matter of administrative policy that it would refrain from issuing orders,
in instances where complaints had issued under the original Act, which would
Tequire an employer to bargain with a labor organization which had not com-
plied with the provisions of Section 9 (f), (g), and (h) of the amended Act.
Marshall and Bruce Company, 75 NLRB 90. There the Board distinguished
bargaining orders intended to remedy violations of Section 8 (5) of the original
Act from other types of remedial orders intended to remedy violations of the
other subsections of Section 8. It was recognized that a bargaining order looks
to the future and is in effect tantamount to a certification of a bargaining
representative. And as a union may not be certified under the amended Act
Euless it has complied with Section 9 (f), (g), and (h), the Board has adopted,
-with the approval of the courts, the administrative policy of limiting its bar-
gaining orders in these cases to correspond with the policy of the amended
Act as to certifications. N. L. R. B. v. Brozen, 166 F. 2d 812 (C. A. 2) ; W. W.
Cross and Company v. N. L. R. B., 174 F. 2d 875 (C. A. 1) ; and Inland Steel
Company v. N. L. R. B., 170 F. 2d 247 (C. A. 7).
But the Board has recognized that this policy has no application to cases
involving violations of other subsections of Section 8, such as Section 8 (3),
.and to its substantially equivalent parallel under the amended Act, Section
8 (a) (3). This is because individual employees, and not labor organizations,
benefit primarily from an order under Section 8 (3) or Section 8 (a) (3).
Andrews Compahiy, 87 NLRB 379, 25 LRRM 1117. This policy gives full effect
.to the purposes of Congress to deny to noncomplying labor organizations the
benefits of the amended Act while keeping intact the protection against em-
ployer reprisal for union activity, protection which is extended to employees
both under the initial and amended Act alike. And it preserves to individuals
.the right to file charges under the amended Act as they had under the original
Act where the violations alleged do relate, as is the case here, to protection of
the charging individuals against employer reprisal for union activities.
Cf. Augusta Chemical Company, 83 NLRB 53. Moreover, this is consistent with
the language of the amended Act which imposes restrictions on access to the
processes of the Board only upon labor organizations as such and not upon
:individuals.
Accordingly, it is found that although some of the individuals filing the
-charges in the instant proceeding were officials of the Union, nevertheless, they
were not fronting for a labor organization in procuring the. benefits of the
processes of the Board for that labor organization but were rather filing charges
which sought to obtain redress for individual employees for conduct directed
.against said employees. It is found that the complaint, contrary to Respond-
•ent's contention, did not issue improperly, insofar as this aspect of Respondent's
motion is concerned.`
B. Sequence of events
1. The issues
The issues framed by the complaint as amended are whether (1) eight em-
ployees who engaged in a strike on June 30, 1948, were discriminatorily dis-
charged on July 6, 1948, and thereafter refused reinstatement; (2) Beathier
.Schloyer was discriminatorily discharged on July 8, 1948, and thereafter denied
In Case 4-CA-160, Henry Ertwine filed the charge in behalf of himself , George
lsiurphy, and Vincent Kotorski. The above rationale is deemed to be equally applicable
to the cases of the latter two.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement; and (3) Respondent has engaged in interrogation of and uttered
threats to employees during June and July 1948, and thereafter.
The record reveals that the history of the Union's organizational campaign
and Respondent's countermeasures during a period of several months ini-
mediately prior to the period covered by the complaint and with which this
report is directly concerned, as well as various proceedings involving Respondent
before the Pennsylvania Labor Relations Board, is an extensive one. Although
this earlier conduct is not alleged to be an unfair labor practice, and it appears
that timely charg s were never filed with respect thereto, the General Counsel
has based contentions in the instant proceeding upon this earlier history and
proceedings before the Pennsylvania Board. In view of those contentions, the:
undersigned deems it necessary to advert to this earlier history, albeit briefly..
2. The union campaign ; background
The organization of Respondent's employees by Local 1644 commenced on or
about March 1, 1948, and cards were distributed on or about March 17 by em
pioyee Norman Otter. The subsequent developments involve both Robert and
William Clausen, the sons of li'redrica Clausen, the owner of the business, both of*
whom are engaged in management of the operational end of the business, as well
as Mrs. Clausen who is concerned primarily with the office operations of
Respondent.
On March 18, Otter was discharged and employees were thereafter interrogated
concerning their union activities and membership by both Robert and Willi:nii
Clausen. On -larch 20. four employees. Sterling Kishbaugh, Jr. (not to be con-
fused with Sterling Kishbaugli, Sr., his father, whose nanie'appears in the instant
complaint), Paul Schaffer, Cleveland Hummell, and Robert Miller were dis-
charged, and on the following day Robert Clausen invaded a union meeting,
used abusive language to Frank Vrataric, a CIO field representative, in the pres-
ence of a group of Respondent's employees, and announced that all present were
discharged. There is also evidence of interrogation of and threats to employees
by all three Clausens during March, April, and May.
On March 29, 1949, the Union filed a petition for an election with the Pennsyl-
vania Board in Case No. 46, and on April 15, 1948, in Case No. 57, the Union filed
charges with that Board alleging interference, restraint, and coercion and also.
the discriminatory discharge in March of the five employees named above. The.
State Board issued a complaint in the latter case, held a hearing on May 14,1948,.
and issued a nisi decision on May 24, 1948, finding the five discharges to have-
been discriminatory, and also finding interference, restraint, and coercion.
The election in Case No. 46 was held on May 12 and apparently certain ballots
were challenged. No decision appeared until August 18, 1948, when a nisi_
certification of the Union was issued.
The Union filed additional charges, in Case No. 77, oil or about May 20,
alleging the discharge of John Morgan on May 1.0 to be discriminatory, and
also alleging interference, restraint, and coercion. The hearing was held on
June 7, and, on July 28, 1948, after the termination of the crucial strike in the
instant case, the Pennsylvania Board issued a nisi decision finding Morgan's
discharge to have been discriminatory and also finding interference, restraint,
and coercion. Still later, on October 5, 1948, the Pennsylvania Board set aside-
the certification in Case No. 46, as well as its findings of unfair labor practices in
Cases Nos. 57 and 77 on the ground, as Respondent had urged in those proceedings,.
that Respondent was engaged in interstate commerce.
LUZERNE HIDE AND TALLOW COMPANY 999
In order to round out the picture of the operations of the State Board with
respect to Respondent and the Union, the record discloses that charges were
filed by the Union with that Board in Case No. 1.14 on July 20, 1948, wherein sub-
siantially the same conduct that is set forth in the instant complaint was there
charged to be an unfair labor practice, namely the nine cases of discriminatory
discharges or termination, and independent interference, restraint, and coercion.
That hearing was held on August 3, 1948, the State Board's jurisdiction was
again challenged by Respondent, and on October 25, 1948, the State Board dis-
missed that proceeding on the ground that Respondent was engaged in inter-
state commerce.
3. The strike of June 30, 1948, and its cause
The Respondent's plant is a small one with approximately 30 employees under
the direction of the 3 members of the Clausen family and 2 foremen, Claude
Slusser and Alfred Superko, who, it is clear, assign work, responsibly direct the
men in the performance of their ditties, and are supervisors within the meaning
of the Act. The employees, save for 2 clericals, a mechanic, and a watchman, are
classified in 3 basic categories, drivers, firemen-laborers, and laborers. The
plant operates on a 2-shift system with the great majority of the employees
assigned to the day shift and approximately 5 employees assigned to the night
shift.
On June 26 or 27, 1948, a meeting was held by the union adherents among the
employees at which the possibility of a strike was discussed. Another meeting
was held on June 29 and the group was addressed by Frank Vrataric, the CIO
field representativq. Vrataric testified in this proceeding that he called to the
attention of the men the fact that Respondent had refused to reinstate the dis-
charged employees who were involved in Pennsylvania Cases Nos. 57 and 77 and
that Respondent had stated it would take an unfavorable decision to the courts.
Vrataric claimed he pointed out to the assembled employees that the discharged
employees would suffer during the lengthy wait for a final decision from the
Pennsylvania courts. The men then voted to strike on the following day, June
30. ' Vrataric testified and the General Counsel claims that the strike which
slid take place as scheduled on the following day was an unfair labor practice
strike caused by Respondent's previous and still unrernedied unfair labor
practices.
The record does not, however, support this contention as to the cause of the
strike. On- the contrary, the record preponderantly establishes that the strike
was basically one for recognition and for better working conditions. This is
established, as appears below, by statements of union adherents at the plant
on July 1, the written demands prepared by the Union, and the oral demands
:actually made upon Respondent on July 1. Neither on July 1 nor throughout
the duration of the strike, insofar as this record indicates, was the subject
of the five earlier discharges raised. In fact, Vrataric elsewhere testified that
the strike was one for wage benefits and that he had advised the men on June
29 that if the strike were effective, the strikers could obtain recognition of the
Union from Respondent. Temporary President Harry Kishbaugh, who attended
the June 29 meeting, claimed that the men struck for more money and better
working conditions and the testimony of Vice-President Schell indicates that
the strike was one for union recognition ; there is still other testimony from
union members to the same effect. It is accordingly found that the strike of
June 30 was, in its inception, an economic strike.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 30, a total of 17 of Respondent's employees either engaged directly in
the strike or .was persuaded not to report for work and to respect the picket line
which was set up on a public road adjacent to Respondent's plant. This group,
included the 9 employees alleged to have been discriminated against in the
complaint and 8 others whose names are Willard Schloyer, John McGlynn,
Michael Korpalski, John Drumheller, Vincent Korpalski, Gilbert Young, Brindley
Young, and Lewis Andrizzi.
4. Events on July 1
The picketing continued on July 1, and at approximately 8: 30 a. in., a com-
mittee of striking employees including President Harry Kishbaugh, Com-
mitteeman Sterling Kishbaugh, Sr., Vice-President Lee Schell, and Beathier
Schloyer entered the plant and conferred with William Clausen. According to
Clausen, they requested recognition of the Union and he replied that it was out of
the question because the matter was then pending before the Pennsylvania Labor
Relations Board for decision, as set forth above. Clausen informed the group,
according to Harry Kishbaugh, that he was willing to grant the men a 10 percent
wage increase as well as a week's paid vacation. He stated that the men would
return as new employees and that he had positions only ,"for one fireman and a
couple of truck drivers and a few laborers." e
The committee returned to the picket line, conferred with the assembled
pickets, and returned to the plant at approximately 10: 30 in the morning.
Clausen was asked to put the terms of his offer in writing but lie replied that he
would abide by his former offer and, in effect, refused to comply with the request.
Sometime during the morning, CIO Representative Vrataric was informed by
Harry Kishbaugh over the telephone of the discussion with Clausen. Vrataric
telephoned Clausen and confirmed the offer of the 10-percent wage increase and
the week's vacation with pay. With respect to the question of union recogni-
tion, Clausen again adverted to the pending Pennsylvania representation case.
Vrataric claimed that lie asked Clausen to sign a statement incorporating his.
wage and vacation offer and also providing that there would be no discrimination
against the strikers, and Clausen agreed to consider the matter.' Vrataric im-
mediately prepared at his office a brief agreement intended for submission to
Clausen. At 11 a. in. he proceeded to the picket line where he read the statement
to the strikers and, as Vrataric testified, the men agreed that "We wanted Mr.
Clausen to sign this before anybody would go back to work."
The proposed agreement was dated July 1, 1948, and provided that Respondent :
(1) Agree to recognize the Union as exclusive representative of all its employees
(emphasis added) : (2) agree not to discriminate against any strikers and
reinstate all of them; (3) agree to negotiate a working agreement with the
Union retroactive to July 1, 1948; and (4) agree to withdraw its challenges to
9 There is considerable variance between Clausen's version of the conversation and that
of the strikers . Clausen's testimony that the strikers requested recognition is undenied
and is credited ; developments later that day make clear that the strikers' activities were
admittedly motivated by Clausen's refusal of recognition . Furthermore , the testimony
of Kishbaugh, Sr. and Schell reveals that the group was unwilling to return on July 1
unless there was recognition of the Union in writing. On the other hand, the undersigned
credits the above testimony of Harry Kishbaugh who favorably impressed the under-
signed as an honest witness. Although Clausen claimed that he offered all the men their
jobs, he corroborated Kishbaugh's testimony to the extent of admitting that he had said
the men would come back as new employees.
7 This finding is based upon a synthesis of the testimony of Clausen and Vrataric which
is in some conflict.
LUZERNE HIDE AND TALLOW COMPANY 1001
the jurisdiction of the Pennsylvania Board. This proposed agreement also
provided a plan for arbitration of disputed clauses for an agreement.
In passing, it may be noted that this proposed agreement sheds light on the
purpose of the strike and discloses, as hereinabove found, that the strike wa&
not one in protest of Respondent's alleged unfair labor practices at an earlier
date. The text of the proposed agreement, listing as its first demand a request
for recognition, further supports the contention of Clausen as found above, that
the strikers were seeking recognition on July 1 when they brought up the subject
of abandoning the strike.
That afternoon Clausen met with the strikers in the company garage. He-
refused to sign a written agreement but renewed his offer of a raise in pay
and a paid vacation. Vrataric instructed the men not to return unless Respond-
ent signed an agreement which recognized the demands of the strikers. A Penn-
sylvania State policeman was present at the time, having been summoned by
Clausen. The latter claimed that his wheat field had been unexplainedly trampled'
and that he wanted to get to the bottom of the matter. Apparently Clausen be-
lieved that the strikers were responsible for such trampling. Vrataric protested:
the presence of the policeman who soon left with two of the employees to inspect
the wheat field. The record does not disclose how the wheat field was trampled,.
although it was claimed that deer had been responsible.
The meeting continued, and according to numerous witnesses for the General.
Counsel, and as the undersigned finds, Clausen announced to the assemblage that
his offer of a raise in pay and a paid vacation was still open to the men but,
as he had stated in the morning, that he had a limited number of positions avail-
able and those who did return would return as new employees. As Harold Yoder
testified, Clausen stated that he had "a job open for one fireman, a couple of
truck drivers and a couple of laborers." The men were instructed by Vrataric•
to refuse this offer. The meeting broke up on this note and the strikers returned
to the picket line.'
It should be noted that the Union's written demands, as proposed by Vrataric
and read to the strikers, were neither read nor shown to Clausen at this con-
ference. According to Vrataric, he did not have an opportunity to do so because
of the way the meeting developed. Nor were these proposals shown or read,
to any management representative on any other occasion.
5. Events on July 6; hiring of replacements
Respondent inserted an advertisement for workers in the Berwick, Pennsyl-
vania, newspaper on July 1, and on that day hired two new laborers who were
the first employees hired since the beginning of the strike. In addition, striker-
Willard Schloyer returned to work that morning.
The picket line continued up to July 6, save for July 5, on which day Inde-
pendence Day was celebrated. On July 3, a new driver was hired and on July 4,
a new fireman and another driver were hired. On July 5, two of the strikers,.
Vincent Korpalski and Lewis Andrizzi, returned to work ; the latter had been
B These findings are based upon the testimony of Yoder, Vrataric , Henry Ertwine,.
Lester Roth , Harry Kishbaugh , and Lee Schell . Clausen and a number of witnesses for-
Respondent , each of whom shortly thereafter returned to Respondent's employ, testified'
that Clausen offered the Increase in wages and the paid vacation and that he either offered,
to reinstate all the men or placed no restrictions on the number to be reinstated . Clausen,
however , admitted that he had stated that the men were to return as new employees, thus'
corroborating in part the version adduced by the witnesses for the General Counsel whose.
testimony has been credited.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visited on the previous day by William Clausen and asked by Clausen why he
had not returned to work. He requested Andrizzi to return on the following
-day stating that the others had returned. Andrizzi, as stated above, did report
on July 5, worked 1 or 2 hours, and then left when he discovered that the other
men were not at work. Three additional laborers were hired on July 5.
The record reveals that a small clique of approximately five in number formed
among the strikers. This group included Michael Korpalski, John McGlynn,
_Brindley Young, Gilbert Young, and John Drumheller, who decided that they
had been led to believe by the union adherents that Local 1644 had already been
chartered by the CIO, when such was not actually the case. This clique also
-decided that it was not being advised of certain policy discussions by the re-
mainder of the strikers who included the union officers and committeemen.
On the morning of July 6, some of the strikers declared themselves to be in
favor of abandoning the strike and returning to work. This sentiment was
restricted to those in the above-described clique, save Drumheller who was not
present. Later that morning, Vrataric came to the picket line and urged the
men not to return to work unless they first obtained a signed agreement from
.Respondent incorporating the proposals prepared by Vrataric on July 1; he
then left the scene. After further discussion the men voted to abandon the
strike and apply for their jobs. It is found that this was unconditionally voted
.and, as appears below, unconditionally carried out that afternoon. This was the
first time that the strikers had unconditionally offered to return to work, for on
July 1, as found above, any discussion on the subject of abandoning the strike
had been coupled with a demand by the strikers for union recognition.
That afternoon Michael Korpalski preceded the strikers, as they entered the
.plant premises after Robert Clausen had returned from a trip, and asked Clausen
if he still had a job and, in the alternative, if he did not, for permission to
obtltin his working clothes. Immediately thereafter, and apparently before
Clausen replied, the remainder of the strikers entered and gathered around.
.Several or more of them stated in unison that the men wanted their jobs
back. It is found that this constituted an unconditional application for rein-
statement by those who had entered the plant ; these included all those named
in the complaint save Murphy and Kotorski °
The record is not entirely clear as to, the exact order in which the meeting
developed, but an analysis of the testimony of those present leads the under-
signed to find as follows, basing said findings largely upon the testimony of those
employees who were present and in part on that of Robert Clausen.
Clausen informed the group that Respondent, after the men refused to return
-on July ]., had advertised for help in the local newspaper, and, as was the fact,
-had hired some new employees. He stated that Respondent did not require the
:services of all of them but that it could use the services of some; no names
were mentioned. At this point, Mrs. Clausen appeared on the scene and stated
either that the men were all discharged or that there was no work for any of
them. On this note, the majority of the men started to leave with the exception
-of some who proceeded to the plant to get their working clothes.
° Although Schell named all but Kotorski as present on July E, the parties stipulated
that all but Kotorski and Murphy were present. There is no evidence that these two
applied for reinstatement thereafter and the record indicates that approximately one
month later Kotorski entered the armed services and at the time of the hearing was still
serving therein. As for Murphy, the record indicates only that he is employed in a nearby
community . The requests for reinstatement were not stated to be in behalf of all
strikers.
LUZERNE HIDE AND TALLOW COMPANY 1003
According to Clausen, he escorted his mother to her nearby home, returned
to the scene, and discovered that all of the men had left but five or six who had
gone for their clothes. He then rehired or arranged to rehire six employees. He
told Michael Korpalski, as the latter testified, that he could return to his job as
driver, without prejudice, and that Korpalski should also notify John McGlynn
that he too could return to his job as driver. McGlynn had left with the group
after Mrs. Clausen had announced that there were no jobs for any of them, but
Korpalski immediately left the plant and caught up with McGlynn, who was
on his way home, and told him of Clausen's offer. Beathier Schloyer was one
of those who had started after his work clothes ; he was called back by Clausen
who stated his job as laborer was available if he desired it. Fireman-laborer
John Drumheller, who had been absent from the picket line on July 6, was
informed over the telephone, by an undisclosed source, that the men were
returning to work. He proceeded to the plant and entered just as the men made
their entry to apply for reinstatement. He testified that he asked Clausen for
his position and was reinstated. Laborer Brindley Young, as he testified, was
informed that afternoon by his son, Gilbert Young, that Clausen had asked him
to return. Brindley Young returned to work that afternoon as did his son,
Gilbert Young."
The record is not clear as to the duration of the strike beyond this date or-of
further picketing. During the remainder of the month of July, Respondent
hired a dumber of new employees. Four laborer vacancies were filled on July
19, 21, 26, and 31, respectively, and one new driver was hired on July 27." In ad-
dition, several laborers were hired during August, September, and October, as
well as a fireman-laborer in October.
C. Contentions and conclusions
1. The 10 (b) problem
At the outset of the hearing, Respondent moved that the complaint be dismissed
on the ground that it alleged unfair labor practices occurring more than 6
months prior to the filing and service of the charges upon which the complaint
was based and issued. These charges were filed on December 29, 1948; they
were mailed by registered mail on January 4, 1949, and served on Respondent
no later than January 5, 1949, and possibly on January 4, 1949.
The complaint, as amended, alleged the discriminatory termination of nine
employees on July 6 and 8, 1948, as well as alleged interference, restraint, and
coercion during June and July of 1948. As stated, Respondent's motion was
presented at the outset of the hearing, prior to the taking of testimony, and was
predicated solely upon the complaint as phrased. On that basis, the motion
was denied because the complaint, aside from the allegation of interference,
restraint, and coercion in June 1948, did not allege conduct during a period prior
to 6 months before the filing and service of the charges to be violative of the
1° Clausen claimed that all six named above had asked individually for their jobs that
day. Brindley Young, however, did not ask individually for his job and McGlynn had
left without making any individual request. Beathier Schloyer testified and the under-
signed finds that Clausen took the initiative and offered his job to Schloyer. Thus, of
the six only Drumheller and Michael Korpalski individually asked for their jobs, and
possibly Gilbert Young.
11 Still another driver was hired on July 10, but he was assigned to a trucking operation
of Respondent in the State of New York which is not involved in this proceeding. Con-
sequently, and contrary to the contention of the General Counsel, the undersigned does
not consider his position as one for which the strikers applied on July 6.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. However , in view of the evidence developed at the hearing and the con-
tentions raised by the General Counsel, which are treated below , wherein it is
-claimed that unfair labor practices committed on July 1 and in earlier months
,play a part in the resolution of the instant issues, the undersigned believes that
Respondent 's motion requires reconsideration and reevaluation at this time.
The first point for consideration is whether the tolling point for the operation
-of the 6 months Statute of Limitations 12 prescribed by the proviso to Section 10
^(b) of the Act is the date of the filing of the charges , December 29, 1948, or the
date of their mailing , namely January 4, 1949. The cut-off date in the former
.instance would be June 29, 1948, and in the latter , July 4, 1948, preceding and
-following respectively the July 1 incident on which the General Counsel relies
in one of his contentions.
Although the issue has not , of this date, been squarely decided by the Board,
it has, by dictum , in several proceedings endorsed the principle that the date for
tolling the operation of the Statute of Limitations is the one of service of the
-charge after its filing. Thus , the Board has stated :
Stated somewhat more broadly , these rulings mean that in all cases involv-
ing a complaint issued after August 22, 1947, based upon a charge alleging
the commission of unfair labor practices before that date, the Board requires
that the charge must have been filed and a copy thereof actually served upon
the party against whom it was made within 6 months after the effective date
of the amended Act. [Emphasis added.] 12
The Board has also stated :
. . . We believe that Section 10 (b), properly construed , requires that the
6-month period be computed from the date of the alleged unfair labor prac-
tices to the date of service on the Respondent of the first charge ( or amended
charge) relating to such unfair labor practices .... This view accords with
a literal reading of the proviso to Section 10 ( b) and with judicial practice
in dealing with statutes of limitations generally . We find nothing to the
contrary in the legislative history of the proviso . [ Emphasis added.] 14
It is found therefore that the date for tolling the operation of the 6-month
Statute of Limitations in this proceeding is January 4, 1949, and that the instant .
complaint may properly allege, as unfair labor practices , only such . conduct as
took place on and after July 4, 1948.
There remains for consideration, however, the problem of what use, if any,
may be made of earlier conduct by this Respondent . Obviously , in the case of a
dominated or assisted labor organization , the acts of domination or assistance
which have taken place prior to the 6-month period have a continuing effect down
to a point of time within the 6-month period.
But in the instant case , there is a problem of a strike alleged to be an unfair
.labor practice strike at its inception , commencing prior to the 6-month period,
as well as the allegation of prolongation and conversion of the strike to an
unfair labor practice strike , assuming it to be in its inception an economic
strike, by unfair labor practices for which because of the 6 -month statute of
limitations , there is no redress . A strict application of the 6-month rule would
.mean that no finding could be made that a strike was an unfair labo . pra_tice
12 Cathey Lumber Company, 86 NLRB 157.
13 Old Colony Box Company, 81 NLRB 1025. Although that case related to a charge
filed before the effective date of the amendments to the Act, the principle is equally
applicable after such date.
14 Ervi'ny Paper Mills, 82 NLRB 434. See also Goodall Company, 86 NLRB 814.
,LUZE'RNE HIDE AND TALLOW COMPANY 1005
strike if its cause or prolongation took place prior to the 6-month potiod. An
example of such an application would be a strike alleged to be an unfair labor
practice strike at its inception, which lasted for S months, at the end of which
discharges or failures to reinstate took place, whereupon charges were then
filed alleging these discharges or failures to reinstate to be discriminatory.
Preclusion from finding that the strike was an unfair labor practice strike in its
inception would deprive those strikers of the added protection of unfair labor
practice strikers and would amount to an amendment of Section 7 of the Act,
as Section 7 would then protect only those concerted activities, at least insofar
as unfair labor practice strikers are concerned, of less than 6 months' duration.
Although no redress may be had for unfair labor practices as such which took
place prior to the 6-month period, the undersigned believes that this does not
prevent the consideration of prior transactions which, as is alleged here, play
a part in the particular concerted activity under consideration. As stated by
the Supreme Court ". . . testimony of prior or subsequent transactions, which
for some reason are barred from forming the basis for a suit may, nevertheless,
be introduced if it tends reasonably to show the purpose or character of the
particular transaction under scrutiny."" Accordingly, it is found that con-
sideration may be given, and it hereby is given, to such earlier conduct.
2. The earlier discharges as an alleged cause of the strike
The General Counsel sought to introduce evidence of conduct by Respondent
several months prior to the cut-off date of July 4, 1948. Some evidence was
taken on the subject, although the undersigned did not permit the General Counsel
to fully develop this subject which involved earlier discharges and undisputed
interrogation of employees concerning their union activities.
Although the undersigned agrees with the principle advanced by the General
Counsel, namely that earlier conduct which constitutes an unfair labor practice,
but which may not be redressed because of the 6 months ' Statute of Limitations,
may be developed if it constitutes the cause of a strike continuing into the pro-
tected period , such is not the case here.
The record indicates , as found above , that the strike commenced on June 30,
1945, 4 days prior to the cut-off date of the operation of the Statute of Limitations.
It will be recalled that on March 18 and 20, 1948, Respondent discharged five
employees and on May 10, another employee; that their cases , Pennsylvania
Cases Nos . 57 and 77, were tried before the Pennsylvania Board on May 4 and July
7, respectively ; and that findings of unfair labor practices were handed down by
that Board on May 24 and July 28, respectively.
CIO Representative Vratarie claimed in the instant proceeding that William
Clausen had indicated that Respondent would not comply with any decision by
the Pennsylvania Board finding these discharges to be discriminatory, but would
fight the matter in the courts , and that as a result the men voted on June 29,
1948, to strike on June 30 in protest of this decision by Respondent not to remedy
its unfair labor practices . Totally aside from an evaluation of Respondent's
right to seek court review or await court enforcement of decisions by the Penn-
sylvania Labor Relations Board, this record preponderantly shows , as set forth
"Federal Trade Commission v. Cement Institute , 68 S. Ct. Rep. 793 . Assuming that
the Board holds that unfair labor practices for which redress is barred because the
Statute of Limitations has run may not be used to give the protection of unfair labor
practice strikers to strikers who strike in protest of such conduct , it follows that the
strikers must be termed economic strikers even if that not be the fact. Clearly they are
not engaging in an unprotected concerted activity.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
below in more detail, that the instant strike was an economic one for recognition
and better working conditions, that the question of the earlier unremedied dis-
charges was never raised on June 30 or thereafter during the strike, and that the
only requests made by the union representatives during the strike involved recog-
nition of the Union, the granting of benefits, and the promise of no discrimination
against the strikersl8 Accordingly, the undersigned rejects the contentions that
these earlier alleged unfair labor practices, although without redress as such,.
constituted a primary cause of the strike which commenced on June 30, and that
this strike was, as a result, an unfair labor practice strike at its inception. On
the contrary, it is found that the strike was in its origin purely as eco:omie
strike.
3. Respondent's conduct on July 1 as an alleged prolongation of the strike,
A similar problem arises with respect to the events on July 1, 1945, which?
date is several days prior to the 6-month protected period. Although there
can be no redress for any unfair labor practices committed on that date, the
General Counsel contends that the alleged unfair labor practices then com-
mitted served to prolong the strike of June 30, assuming its economic inception,
and thereby converted it to an unfair labor practice strike.
It will be recalled that on the morning of July 1, the committee of strikers
raised the possibility of a return to work but coupled this statement with a
demand that Respondent recognize the Union.17 William Clausen refused the'
request for recognition and offered to take back approximately six employees
who were to return as new employees. This offer to rehire only a portion of
the group on strike was repeated by Clausen on the afternoon of July 1, when
he met with the strikers en masse; as of that date, July 1, but two replacements
had been hired and Clausen admitted that he then had sufficient positions avail-
able for all the strikers.
The undersigned finds that Clausen's statement having been made to the
strikers at a time when positions were available for them constitutes a violation
of Section 8 (a) (1) of the Act for which, however, there is no redress because
of the running of the Statute of Limitations."
The question remains for consideration whether Clausen's statement, clearly
violative of Section S (a) (1) although not redressable, did prolong the strike
and thereby convert it to an unfair labor practice strike. The question is indeed
a close one on the facts in this proceeding. The undersigned is of the belief,
however, and finds upon a preponderance of the evidence, that the strike was
not prolonged by Clausen's statements.
The Union did not have a representative status at the time and the attain-
ment of such status was the primary objective of the strike. Recognition was
refused by Respondent on July 1 but Clausen proceeded to make the state-
ments outlined above. The record does not support a finding that Respondent's
limitation of the number of strikers he would, reinstate, and the statements
"This is not to say that a strike in protest of unfair labor practices must, in order
to be characterized as an unfair labor practice strike, follow immediately after the cola-
mission of the alleged unfair labor practices. In this case, however, despite the earlier
conduct of Respondent, the facts clearly indicate an economic causation of the strike.
17 The General Counsel has not contended that an unconditional offer to return was.
made by the strikers on July 1. It is clear that an offer, if made. was not unconditional.
18 In view of the absence of redress for Clausen's statements, it is deemed unnecessary
to pass upon the contention of the General Counsel that Respondent also violated sectimu
8 (a) (3), in that his statement constituted a discrimination against and discharge of a
number of strikers, although at that point they remained unidentified.
LUZERNE HIDE AND TALLOW COMPANY 1007
that those to be returned would return as new employees, became the paramount
issue in later negotiations to settle the strike. The record indicates only that
the strike continued until July 6 when an unconditional offer to return was
made by the strikers, and there is no evidence of prolongation as a result of
Clausen's statements. It is believed rather that the strike continued with
recognition as its primary objective. This is reflected by the testimony of
Vrataric that he had instructed the men not to return unless they achieved
a written agreement. And it will be recalled that Vrataric on July 1 read to
the strikers the conditions under which he recommended the return to work,
that the men adopted his recommendations, and that the first demand on the
list was one for union recognition. Furthermore, the testimony of Union Officials
Sterling Kishbaugh, Sr., and Lee Schell, as well as various strikers, discloses
that the group was unwilling to return on July 1 without recognition. In view
of the above, the undersigned finds that Respondent's conduct on July 1 did
not prolong the strike, did not convert the strike to an unfair labor practice
strike, and that the strike remained economic in character.19
4. Discrimination against the strikers
The General Counsel raises two further contentions herein which are in some
degree interrelated. It is contended (a) that after the strikers requested rein-
statement on July 6, Respondent discriminated in the selection of employees for
reinstatement among the striking employees on the basis of known divergences
of attitude, union membership, and union activity; and (b) that in the period
following the termination of the strike Respondent failed to rehire the remainder
of the strikers, because of their participation in the strike, to fill positions that
became available.
As contended by the General Counsel, the record does reveal that before the
strike commenced on June 30 there existed a distinct dichotomy among the em-
ployees with respect to attitude toward and activity in behalf of the Union.
,Those strikers who had manifested opposition to or lack of interest in the Union
prior to the strike soon coalesced into a separate group part of which advocated
an abandonment of the strike. And it was this group which was selected for
reinstatement on July 6, after the entire group of strikers had unconditionally
applied on that day, save Kotorski and Murphy.
Specifically this group included Michael Korpaiski, John McGlynn, Brindley
Young, Gilbert Young, and John Drumheller, who had expressed open opposition
to the Union, refused to sign union cards, or refused to attend union meetings.
The strike apparently came as a surprise to this group, and although they re-
spected the picket line when they discovered the existence of the strike and
thereafter participated in some degree in the strike activities, they soon coin-
lnenced to advocate abandonment of the strike. By contrast those not offered
reinstatement on July 6 included the elected officials of the Union, those who
attended union meetings, the signers of union cards, and in substance those
named in the complaint to have been discriminated against."
19 Anchor Rome Mills, Inc., 86 NLRB 11.20: Myers Products Corporation, 84 NLRB 32.
Unlike Kansas Milling Company, 86 NLRB 925, there is no evidence that the position
taken by William dlausen on July 1 became the "paramount" issue in negotiations to
settle the strike.
20 Beathier Schloyer, a committeeman of the Union, was offered and accepted rein-
statement on July 6, but was discharged on July S. The peculiar facts of his case are
discussed below.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Not only did this dichotomy take place in a small plant with a small worieing
force," where the owners of the business were actively and regularly engaged.
therein and present, but the record further discloses that the Clausen family
had ample opportunity to obtain and did obtain a full picture of the divergent
views of its employees on the subject of unionism in the period prior to June 29,
1948.
Thus, Robert Clausen admittedly questioned groups of employees as to whether'
they had signed union cards and specifically named Howard Yoder as one he
had thus interrogated. He also revealed to employees during the prestrike
period that he knew the nnliies of the union officials including Ertwine, the two
Kishbaughs, and Lee Schell. He admittedly invaded a union meeting where a
number of union adherents were present and threatened those present with
discharge. He admitted that lie had been informed of the identity of those
present at other union meetings and of what had been stated there.22 Finally,
William Clausen on July 1 negotiated with a committee of the strikers which
included Union Officials Harry Kishbaugh, Lee Schell, Sterling Kishbaugh, Sr.,
and Beathier Schloyer.
The full ramifications of Respondent's basis for selection of employees on
July 6 are disclosed when a comparison is made of those selected and not
selected in the driver and fireman-laborer categories. Thus, on July 6, three
positions as drivers had not been filled. Respondent saw fit to offer positions,
to Korpalski and McGlynn thus filling but two of the vacancies, but refused to
consider Harry Kishbaugh, Schell, Entwine, or Yoder for the remaining vacancy..
Significantly, Harry Kishbaugh, Schell, and Ertwine were union officials each
of whom had been active in behalf of the Union. And Yoder had previously been
interrogated by Mrs. Clausen as to whether he had signed a union card and had
told of this inquiry when he testified as a witness on May 4, 1948, before the
Pennsylvania Board in Case No. 57.
By contrast, Korpalski and McGlynn had opposed the Union at the outset
of its campaign, and McGlynn had been a watcher for Respondent at the election.
conducted by the Pennsylvania Board on May 1.2, 1948, in Case No. 46. Although
Harry Kishbaugh possessed seniority which dated back to 1929 and had worked
without break since approximately 1933, Clausen selected McGlynn whose senior-
ity dated back only to 1943 and who, as was also true of Kishbaugh, had made
no individual request for reinstatement. In fact, McGlynn had left the plant.
on July 6 when Mrs. Clausen informed the group that they were discharged, and.
Robert Clausen had instructed Korpalski to inform McGlynn that he could return
to work.
As for firemen-laborers, there were two applicants for reinstatement to one
vacancy on July 6--John Drumheller and Sterling Kishbaugh, Sr.; only the
former was reinstated. Kishbaugh, as was known to. Clausen, was a union
committeeman and was present at a meeting which Clausen invaded and at which
Clausen had threatened everyone present with discharge. Drumheller, on the
other hand, never attended a union meeting, abandoned the picket line prior to
July 6, and informed both Foremen Slusser and Superko prior to the strike that
he would not join the Union and that he would do nothing to help it.
21 Cf. Kallaher and Mee, Inc.. 87 NLRB 410, Quest-Shon Hark Brassiere Co., Inc., 80,
NLRB 1149, and N. L. R. B. V. Link-Belt Company, 311 U. S. 584, 603.
22 This conduct took place in April or May 1948 during the period prior to the protected
6-month period. It is being used, however, not as evidence of an unfair labor practice
but rather as evidence of knowledge by the employer of the employees ' union activities;-
and of the identity of the leaders in the movement . It is therefore deemed com petent,.-
No finding of unfair labor practices is made with respect to such conduct.
LUZERNE HIDE AND TALLOW COMPANY 1009
Robert Clausen claimed that each of the six chosen for reinstatement had
made an individual request for reinstatement at or about the time of the joint
request by the group of strikers on July 6. The record, however, does not sup-
port this testimony by Clausen. Thus, Brindley Young testified that he re-
ceived word from his son, Gilbert Young, on July 6 that Robert Clausen wished
him to return to work. Furthermore, Beathier Schloyer claimed that he was
offered a job by Clausen that day and that he had not individually applied for
his job. McGlynn testified that he learned of the offer of a position from Michael
Korpalski who in turn testified that Clausen had instructed him to tell McGlynn
to return to work. Thus, it is clear and the undersigned finds that jobs were,
not offered only to those who had made individual requests for same.
Clausen claimed that it was urgent to procure the return of McGlynn because.
lie, Clausen, was filling in on the latter's route and desired to be relieved there-.
from. However, the testimony of his brother, William Clausen, does not sup-.
port this claim. The latter testified that a new employee, Houck, was handling
McGlynn's route and that McGlynn on his return was assigned to Ertwine's
former route.
In view of the above, the undersigned is convinced and finds that Respondent
applied a discriminatory basis for the selection of employees among its strikers
to fill the remaining vacancies on its staff. Other than for the case of Schloyer,
discussed below, there was a marked failure to reinstate anyone known to be,
active in union leadership and activities, and Respondent reinstated only men,
whom it knew or had reason to believe were opposed to the Union or merely
quiescent in going along with the union leadership. Cf. F. W. Woolworth Co. v.
N. L. R. B., 121 F. 2d 6,58 (C. A. 2). -
Although the selection of employees for reinstatement on July 6 has been
found to be discriminatory as to the entire group of strikers not reinstated, in
that Respondent selected employees for reinstatement from only one particular
group which was not prominent in union activities and leadership, Respondent
has also discriminated against the four drivers not reinstated on July 6, inas;
much as, on that date, it filled but two of the three vacancies then existent.
The remaining four drivers made unconditional application for their former
jobs on that day at a time when one position was still vacant and that position
was denied to all four. By such conduct Respondent has discriminated against
them for engaging in a concerted activity, thereby violating Section S (a) (1)
and (3) of the Act. Cf. Kallaher and Mee, Inc., supra.
The other contention of the General Counsel is that Respondent, in the period
following the termination of the strike, discriminatorily failed to rehire those
not reinstated on July 6 to fill positions that became available and that this
failure to rehire was motivated solely because of their participation in the
strike that conimencetl.on June 30. ,
As stated, during July but after July 6, one vacancy for driver was filled and
four positions as laborer became available; it further appears that one laborer
position became vacant and was filled on August 1.0 and that two were filled on
September 20 and 21 respectively. These are the vacancies adverted to by the
General Counsel in his contention.
The record contains a number of demonstrations of intent on the part of Re-
spondent's owner and managers, the Clausens, to discriminate against the strikers'
when jobs became available. Thus, Mrs. Clausen testified in Case No. 114 on Au-
gust 3, 1.948, when the present case was litigated before the Pennsylvania Board,'3
23 She did not testify herein because of illness. By agreement, a portion of her testimony
in the prior proceeding was introduced.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she would not rehire any of the strikers not rehired on July 6 because "they
all quit their jobs willingly." William Clausen admitted herein that the strikers
not reinstated were not suitable for rehire because they might engage in another
strike, despite the fact that he elsewhere admitted that it was desirable to
employ men familiar with the work for certain jobs. He further claimed that
when he could not obtain other men he might rehire former employees and ad-
mitted that because the men had refused to return to work on July 1 their job
applications had been removed from the list of applications on file in Respondent's
office.`° It may be observed at this point that this sheds further light on the
findings hereinabove made, namely, that Respondent applied a discriminatory
basis for selection of employees on July 6, inasmuch as Respondent did not remove
from consideration the applications of those employees to whom it did offer re-
instatement on July 6. .
Respondent advertised for workers on July 1 in a local newspaper, received
a substantial number of job applications, and each day from July 1 through 5
inclusive hired some new employees, apparently from such applications. Re-
spondent thereafter hired at least some new personnel from applications in its
office. Presumably these were applications received immediately after July 1
as there is no evidence of the submission of any later applications to Respondent.
Thus, as set forth above, Respondent expressed an intent not to consider for
further employment those strikers who had been replaced because they had
engaged in concerted activities. This intent was carried out by admittedly re-
moving the applications of the replaced strikers from consideration for later
vacancies, and considering only those applications on file in its office which were
those of nonstrikers.
The applications which were given consideration were not those of fresh ap-
plicants for work but rather those remaining on file in Respondent's office, after
removal of those of the strikers. Respondent was willing to consider the ap=
plications of nonstrikers on file in its office as continuing applications, but, not
those of replaced strikers who had engaged in a concerted activity. That this
was discriminatorily motivated is demonstrated by the testimony of Mrs. Clausen,
anti William Clausen, set forth above. As this constitutes discrimination against
applicants for employment because of their adherence to a union or because they
have engaged in a protected concerted activity, it is violative of Section 8 (a),
(1) and (3) of the Act. Phelps-Dodge Corporation v. N. L. R. B., 313 U. S. 177;
N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333, and Sandy Hill Iron
and Brass Works, 69 NLRB 355, enf'd 165 F. 2d 660 (C. A. 2).
5. The discharge of Beathier Schloyer
Beathier Schloyer, who was rehired on July 6, was the only employee rein-
stated who had been active in the Union or a union official. He was assigned
to the night shift on July 6 and later that evening, Mrs. Clausen asked him if he
had joined the Union and had paid it any money. Schloyer admitted that he had
joined and had paid in $2. She warned him to watch out "because Vrataric and
the boys are out on the road looking for you." 2'
On the following day, July 7, Beathier Schloyer was absent from work. On
July 8 he reported for work and shortly thereafter William Clausen, as the latter
24 The record is not clear as to precisely what he meant by the reference to job applica-
tions. No written applications were made on July 6 and this apparently refers to some
earlier application or comparable document.
25 The uncontroverted testimony of Schloyer. As stated above, Mrs. Clausen did not
testify.
LUZE'RNE HIDE AND TALLOW COMPANY 1011
testified, approached Schloyer and asked him, "Did the boys try to keep you
from coming to work last night?" Schloyer admitted that such was the fact
but that the plan had not worked, whereupon Clausen discharged him stating
that Schloyer had no cause to fear any outside interference from Vrataric or
from any union activities and that he, Schloyer, was "as bad as the rest of
them." 26
Clausen admittedly confirmed his belief that Schloyer had absented himself
from work on July 7 because he had permitted himself to be influenced by the
union adherents on that day, and Clausen further admitted that he released
Schloyer because he had permitted himself to be threatened by the union ad-
herents as a result of which he remained away from work.
Analyzing Clausen's expressed motivation, it becomes apparent that Clausen
was of the belief that Schloyer had made common cause with the strikers on
July 7 or had demonstrated his sympathy with their cause and, upon ascer-
taining this fact, Clausen discharged Schloyer for engaging in such conduct.
The fact is that Clausen discharged Schloyer because he, Clausen, believed that
Schloyer had on that date joined or demonstrated sympathy for the replaced
union adherents either through fear or choice. By such discharge, Clausen dis-
criminated against Schloyer solely because he believed that Schloyer had
been influenced by the union adherents, thus as a matter of law, discriminating
against him because of his purported union activities and thereby discouraging
membership in a labor organization and participation in concerted activities,
within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in
connection with her operations described in Section I, above, have a close,'inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to be unfair labor practices tend to
lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, the
undersigned will recommend that she cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act and to
restore as nearly as possible the conditions which existed prior to the commis-
sion of the unfair labor practices.
It has been found that Respondent has discriminated with regard to the hire
and tenure of employment of the employees listed in Appendix A who are the
individuals named in the complaint save Kotorski and Murphy." The under-
20 This finding is based upon the testimony of Schloyer and Clausen which is in sub-
stantial agreement on this topic. Schloyer testified herein that on July 7 he had gone
to the home of Harry Kishbaugh, where a number of strikers had assembled, that they
urged him not to report for work , and that he decided to absent himself that day lest
he be called a "scab." At the Pennsylvania Board hearing in Case No. 114, Schloyer tes-
tified , however, that he had been ill on July 7. He further claimed in • the instant pro-
ceeding that he had been ill on July 7 but that he also visited the home of Kishbaugh
that day. However, inasmuch as the sole issue herein is Respondent's motivation in
discharging Schloyer on July 8, a finding as to Schloyer 's actual whereabouts on July 7
would shed no light on that issue . It is found that his activities on July 7 are
immaterial.
27 Kotorski and Murphy have never applied individually for reinstatement , insofar as
this record indicates , and furthermore it appears that the applications for reinstatement
made by the strikers on July 6 were applications made by those in the group rather than
applications made in behalf of all strikers.
889227-51-vol. 89-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed will therefore recommend that Respondent offer to each of the employees
listed in Appendix A reinstatement to his former or substantially equivalent
position, or if no such position be available, then to any position for which he
may be qualified and which is occupied by any person hired after July 6, 1948,
and to give each of them back pay. The offer of reinstatement shall be without
prejudice to their seniority and other rights and privileges, and such reinstate-
ment shall be effectuated in the following manner.
All or such number as may be necessary of the persons hired after July 6,
1948, the date the employees listed in Appendix A unconditionally applied for
reinstatement, shall be dismissed, if necessary, to provide employment for
those to be offered reinstatement. The record indicates that there have been
sufficient additions to the staff to carry out these provisions with respect to the
laborer and fireman-laborer classifications, but not apparently with respect to
drivers.
Accordingly, it is further recommended that if, after dismissal of all employees
hired after the date of Respondent's discrimination on July 6, there are insuffi-
cient positions remaining for all employees, including those ordered reinstated,
the available positions shall be distributed among all employees without dis-
crimination against any employee because of his union membership, activity, or
participation in the strike, following such system of seniority or other non-
discriminatory practice as has heretofore been applied in the conduct of
Respondent's business. Those employees remaining, if any, after such dis-
tribution, for whom no employment is immediately available, shall be placed on a
preferential list, with priority among them determined in accordance with such
system of seniority or other nondiscriminatory procedure as has heretofore been
applied by Respondent in the conduct of her business and, thereafter, in accord-
ance with such list, shall be offered reinstatement to positions as provided above,
as such employment becomes available, and before other persons are hired for
such work.
The undersigned further recommends that Respondent make whole the em-
ployees listed in Appendix A, against whom it has discriminated in the manner
hereinafter set forth. It has been found that after July 6, 1948, the date the
employees in Appendix A unconditionally applied for reinstatement, Respondent
filled vacancies on her staff which those listed in Appendix A were qualified
to occupy and that she refused to give consideration for those positions to these
men. It has further been found that Respondent applied a discriminatory basis
for selection of employees who were. offered reinstatement to those positions
which were available on July 6. It is impossible from the record and an ex-
amination of the limited employment records available to determine in the
above instances which of the employees listed in Appendix A would have been
reinstated to the limited number of positions available on July 6 or in what
order they would have been reinstated thereafter had a nondiscriminatory basis
for selection and hiring been applied. Accordingly, the undersigned will en-
deavor in his recommendations to make due allowance for those circumstances.
It is recommended that Respondent make payment to the employees listed
in Appendix A of an amount equal to that which each of such employees would
have earned as wages during the period from the day on which, absent discrimi-
nation against him, he would have been reinstated had Respondent nondiscrimi-
natorily filled the vacancies existing on July 6 and which arose thereafter, in
accordance with and following such system of seniority or other procedure as has
heretofore been followed in the conduct of Respondent's business, to the date of
LUZE'R'NE HIDE AND TALLOW COMPANY 1013
the offer of reinstatement or placement upon a preferential list, less his net
earnings during the period.
It is further recommended that the Board reserve the right to modify the
back pay and reinstatement provisions herein, if made necessary by a change of
conditions in the future, or to make such supplements thereto as may hereafter
become necessary in order to define or clarify their application to a specific set of
circumstances not now apparent. Of. Sandy Hill Iron and Brass Works, supra,
and American Bread Co., 51 NLRB 1302.
Respondent by its discrimination against the strikers resorted to the most
effective means at its disposal to deny what the Supreme Court has termed "the-
principal purpose of the Act," namely, its guarantee to employees of "full freedom
of association and self-organization." Wallace Corporation v. N. L. R. B., 323-
U. S. 251. The undersigned will therefore recommend that Respondent be
ordered to cease' and desist from in any manner infringing upon the rights of
employees as guaranteed by Section 7 of the Act. May Department Stores v..
N. L. R. B., 326 U. S. 376.
Upon the basis of the foregoing findings of fact and upon the entire record in.
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local Industrial Union 1644, CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of her employees named.
in Appendix A, thereby discouraging membership in a labor organization, Re-
spondent 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 her employees in the exercise-
of the rights guaranteed in Section 7 of the Act, 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.
5. Respondent has not discriminated with respect to the hire and tenure of
employment of George Murphy and Vincent Kotorski.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that Fredrica
Clausen, doing business as Luzerne Hide and Tallow Company, her officers,.
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of her employees by
discharging any of her employees or by refusing to reinstate them because they
have engaged in union or concerted activity, or by discriminating in any other
manner in regard to their hire and tenure of employment or any term or condition.
thereof ;
(b) In any other manner interfering with, restraining, or coercing her em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities for the-
purposes of collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right may be-
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affected by an agreement requiring membership in a.labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A immediate and full reinstate-
ment to their former or substantially equivalent positions 24 without prejudice to
their seniority and other rights and privileges in the manner set forth above in the
section entitled "The remedy" and place those employees for whom employment
is not immediately available upon a preferential list in the manner set forth in
said section and thereafter, in said manner , offer them employment as it becomes
available ;
(b) Make whole the employees listed in Appendix A for any loss of pay suf-
fered by reason of Respondent's discrimination against them in the manner set
forth above in the section entitled "The remedy" ;
(c) Post immediately at its office and place of business at Nescopeck, Penn-
sylvania, copies of'the notice attached hereto and marked Appendix A. Copies
of said notice, to be furnished by the Regional Director for the Fourth Region,
shall, after being duly signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof and maintained by her for sixty (60)
consecutive days in conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Fourth Region in writing within
twenty (20) days from the date of receipt of this Intermediate Report what
steps Respondent has taken to comply herewith.
It is recommended that unless on or before twenty (20) days from the date of
the receipt of this Intermediate Report, Respondent notify said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring Respondent to take the aforesaid
action.
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent has discriminated with respect to the hire and tenure of employ-
ment of George Murphy and Vincent Kotorski.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order or to any other part of the record or proceeding ( including rulings
upon all motions or objections) as he relies upon, together with the original
and six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report and Recommended Order. Immediately upon the filing of such statement
of exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
21 See The Chase National Bank of the City of New York, San Juan, Puerto Rico
Branch, 65 NLRB 827. Approximately 1 month after July 6 driver Lee Schell was
offered a position as night laborer . This would have meant a small reduction in hourly
rate and the loss of the opportunity to earn overtime. The position offered is found
not to have been one substantially equivalent to Schell's position prior to the strike.
LUZE•RNE HIDE AND TALLOW COMPANY 1015
nate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed , and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46 should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten ( 10) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 29th day of December 1949.
MARTIN S . BENNETT,
Trial Examiner..
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organ-
izations , to join or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized by Section 8
( a) (3) of the amended Act.
WE WILL OFFER to the employees named below immediate and full rein-
statement-to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimina-
tion against them.
Lee Schell Howard Yoder
Sterling R ishbaugh , Sr. Harry Kishbaugh
Lester Roth Beathier Schloyer
Henry Ertwine
All our employees are free to become or remain members of any labor organ-
ization except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the amended Act. We will not discrimi-
nate in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or activity on behalf
of any such labor organization.
FREDRICA CLAUSEN, DOING BUSINESS AS
LUZERNE HIDE AND TALLOW 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.