McKaig-Hatch, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1940

26 N.L.R.B. 1459 (N.L.R.B. 1940)

In the Matter Of.MCKAIG-HATCH, INC. and AMALGAMATED ASSOCI-
ATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA,
LOCAL No. 1139
In the Matter of MCKAIG-HATCH, INC. and AMALGAMATED ASSOCI-
ATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA,
LOCAL No. 1139
Cases Nos. C-350 and R-651.-Decided August 26,1940
Evidence
Allegation of respondent, supported by verification of vice president,
contained in application for reopening of the record, that decrease in em-
ployment removed opportunity to reemploy certain strikers, treated as true
with regard to work, if any, certain strikers might have been found entitled
to receive restitution, in the light of failure to introduce evidence concerning
such work, if any.
Practice and Procedure
Record reopened to take evidence concerning determination of particular
individuals to be reinstated or placed on preferential list and determination
of persons to receive compensation and the amount of money to be paid
them under earlier Board order, despite the fact that such determinations
are usually made by the Regional Director in connection with obtaining
compliance with the Board's order, since, the allegation contained in the
respondent's application to reopen, relate to or involve substantive issues
and not mLrely compliance procedures.
Remedial Orders
Named unfair labor practice strikers, found to be best qualified among the
strikers for work performed by certain other persons hired during the strike,
and independently thereof found to be qualified to perform the work of such
other persons, held entitled to restitution for such work, pursuant to earlier
more general back pay order.
Unfair labor practice strikers not entitled to restitution for work performed
by other persons'hired during the strike when such other persons were doing
work for which none of said strikers was qualified or for which qualified
strikers were not available at the time the work was begun.
Payment to individual employees found to have been discriminatorily
refused reinstatement is measured by the earnings of the particular persons
hired during the strike, respectively, at the work which the employees, re-
spectively, were qualified to perform.
Net earnings of employees receiving restitution during the period when
other persons were performing the work to which they should have been re-
instated, deducted from the amounts earned by such other persons, in de-
termining the amount allowable as restitution to said employees.
Unfair Labor Practices
. By refusing certain striking employees reinstatement to work performed by
persons actually at work or on temporary leave at the time of the strike, re-
spondent committed no unfair labor practice.
26 N. L. R. B., No. 133.
1459
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Edward D. Flaherty and Mr. Peter J. Crotty, for the Board.
Mr. William J. Evans, of Buffalo, N. Y., for the respondent.
Mr. Joseph P. Molony, of Buffalo, N. Y., for the S. W. O. C.1
Mr. A. G. Koplow, of counsel to the Board.
SUPPLEMENT TO DECISION
AND
ORDER AMENDING ORDER'
On December 2, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Order 2 in the above-titled
consolidated cases. In the Decision the Board found,3 among other
things, that McKaig-Hatch, Inc., a corporation, Buffalo, New York,
herein called the respondent, had engaged in unfair labor practices,
within the meaning of the National Labor Relations Act, herein
called the Act, by failing on and after October 18, 1937, to displace,
to the extent necessary, 23 named persons then in its employ and hired
after September 2, 1937, with and from among certain named em-
ployees, 31 in number, qualified to hold such positions, who had gone
on strike on September 2, 1937, as a result of unfair labor practices
committed by the respondent and who had never thereafter been
reinstated by it.' In the Order, in paragraph 2 (c) thereof, the Board
directed the respondent to offer the 31 employees immediate and full
reinstatement to their former or substantially equivalent positions at
the respondent's plant or to positions for which they were qualified,
or placement on a list for preferential hiring, in accordance with the
terms and in the manner therein set forth; and, in paragraph 2 (d)
thereof, directed the respondent to make whole said 31 employees for
any loss of pay they, or any of them, suffered by reason of the respond-
ent's above-mentioned failure on and after October 18, 1937, to dis-
place the 23 named persons with certain of.the 31 employees and its
further failure, if any, thereafter to offer the remaining of the 31
employees positions which became available at the plant for which
they were qualified, in accordance with. the terms and in the manner
set forth in said Order.
1 Steel Workers Organizing Committee , herein referred to as the S . W. O. C., is a labor organization
appearing on behalf of its affiliated organization , the Amalgamated , the charging union herein.
2 10 N. L. R. B. 33.
3 10 N. L. R. B. 33, 50.
4 The names of the 23 persons and of the 31 employees were set forth in Appendices " D" and "B," respec-
tively , of the Decision and Order , and are hereinafter set forth in the Appendices attached hereto, similarly
designated for purposes of convenience.
McKAIG-HATCH, INC. 1461
On January 18, 1937, the respondent made application to the
Board for a reopening of the record in order to admit to the record
further evidence with respect to the portions of the Decision and
Order relating to the 23 named persons andbthe 31 named employees,
and any other further or different evidence that the Board might
require. On January 18, 1939, the Board issued the following order
granting said application to the extent in said order provided:
AND IT IS HEREBY FURTHER ORDERED, that the record be, and
it hereby is, reopened for the purpose of taking and receiving
further evidence before a Trial Examiner of the Board, and for
futher proceedings consistent therewith, with respect solely to
the following matters:
(1) Whether the thirty-one (31) employees named in Appendix
B 5 of said Decision and Order, [of December 2, 1938, above-
mentioned] or any of them, could on October 18, 1937, and/or
thereafter have performed the work which said persons named
in Appendix D 6 of said Decision and Order, or which any other
person not on the respondent's pay roll but hired since September
2, 1937, were or was employed by the respondent to perform;
that is, whether the positions in which said persons named in
Appendix D and such other persons were employed, by the
respondent were the same as or substantially equivalent to the
positions in which such thirty-one (31) employees were employed
by the respondent on September 2, 1937, or were positions for
which said thirty-one (31) persons or any of them were qualified.
(2) Which, if any, of the thirty-one (31) persons named in
said Appendix B is required by the provision of Paragraph 2 (c)
of the Order of said Decision and Order to be offered immediate
and full reinstatement by the respondent and which, if any, is
required thereby to be placed on a preferential list of employment.
(3) Which, if , any, of the thirty-one (31) persons named in
said Appendix B is required by the provision of Paragraph 2 (d)
of the Order of said Decision and Order to be made whole by
the respondent, on account of loss of pay, and, if so, for what
amount, in so far as an amount will have accrued thereunder at
the date of the hearing herein ordered . . .
The order also provided:
Nothing in this Order shall be taken as in any way staying or
postponing the enforcement of the Order of said Decision and
Order [above-mentioned, issued December 2, 1938], or otherwise
affecting said Order, or as excusing the respondent from comply-
ing therewith.
5 See footnote 4, supra.
6 See footnote 4, supra.
323429-42-93
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Generally, where the Board issues an order containing provisions
such as those set forth in paragraphs 2 (c) and 2 (d) of the Order of
December.2, 1938, the determination of the particular individuals
who are to be reinstated.or placed on a preferential list under such
order, as well as the determination of the persons to receive compensa-
tion and the amount of money to be paid them, is made by the Regional
Director as agent of the Board in connection with obtaining compli-
ance with the order. In the instant case, however, the Board de-
parted from its usual administrative practice and reopened the record
for the purpose of taking evidence in respect to such matters since they
involved, not merely compliance procedures, but involved or were
related to a substantive issue. If, as contended in the respondent's
application to reopen, none of the 31 employees named in Appendix
B' was qualified for any of the work done on and after October 18,1937,.
by the 23 persons named in Appendix D, 8 then the finding in the De-
cision of December 2, 1938, that the respondent committed an unfair
labor practice by its failure to make the displacement above-mentioned
is not supported by the facts and the Decision should be modified
accordingly.
On February 15, 1939, the Regional Director issued a notice of a
further hearing, copies of which were duly served upon the respondent,
upon the S. W. O. C. acting on behalf of the Amalgamated, and upon
the Association. Pursuant to notice a further hearing was held in
Buffalo, New York, on March 6, 7, 8, 9, 10, 13, 14, and 15, 1939,
before C. W. Whittemore, the Trial Examiner duly designated by the
Board. The Board, the respondent, and the S. W. O. C. acting for the
Amalgamated appeared at the hearing by their counsel or representa-
tives. At the beginning of the hearing the respondent, without speci-
fying, any particular provision of the Board's order of January 18,
1939, took exception to "those provisions of the order . . . that are
outside and beyond the application . . . to reopen this proceeding"
and to "the provisions of this order insofar as it purports to reopen this
hearing for any other purpose than as provided in the application of
McKaig-Hatch to reopen." Thereafter, during the hearing the re-
spondent objected to the introduction of any evidence bearing on the
earnings of the 31 employees named in Appendix B of the Board's
Decision and Order. The Trial Examiner overruled the objection
and noted an exception. The Trial Examiner made various other
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the foregoing rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
7 See footnote 4, supra.
8 See footnote 4, supra.
MoKAIG-HATCH, INC. 1463
are hereby affirmed. At the close of the hearing the Trial Examiner
informed the parties that he would prepare no Intermediate Report on
the record of the further hearing and that they had the right to request
the Board for leave to present oral argument and submit briefs to the
Board. No request for oral argument has been made in pursuance
thereof ; however, the respondent submitted a brief.
On June 14, 1940, the Board issued an order directing that a
Proposed Supplement to Decision and Proposed Order Amending
Order be issued in the further hearing, including therein proposed
findings of fact and proposed conclusions of law, and that leave be
granted to each of the parties to file exceptions to the Proposed
Supplement to Decision and Proposed Order Amending Order and to
the record in the further hearing, to request permission to argue
orally before the Board, and to submit a brief. Also on June 14 the
Board issued its, Proposed Supplement to Decision and Proposed
Order Amending Order, to which exceptions were filed on July 5, 1940,
by.. the respondent. On July 23, 1940, the respondent submitted a
brief in support of its exceptions. No request for oral argument before
the Board was made by the parties. The Board has considered the
exceptions filed by the respondent and, in so far as they are inconsist-
ent with the findings, conclusions, and order below, finds them without
merit.
Upon the evidence introduced at the further hearing and upon the
entire record in the cases, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
1. POSITIONS OCCUPIED OR WORK PERFORMED BY. PERSONS
LISTED IN APPENDIX D WHICH COULD HAVE BEEN FILLED
OR PERFORMED ON OR ABOUT OCTOBER 18, 1937, BY EM-
PLOYEES NAMED IN APPENDIX B, AND BACK PAY ALLOW-
ABLE TO SUCH EMPLOYEES UNDER PARAGRAPH 2 (D) OF
THE ORDER OF DECEMBER 2, 1938.
(a) The issues at the additional hearing
Paragraph 2 (d) of the Order of December 2, 1938, directed the
respondent to take certain action, as follows:
Make whole the employees named in Appendix B ordered to
be offered reinstatement for any loss of pay they, or any of them,
may have suffered by reason of the respondent's refusal on Octo-
her 18, 1937, and thereafter, to reinstate them, by payment to
them in the manner set forth in the section entitled "Remedy"
above.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The payment referred to is described in the section entitled
"Remedy" as follows:
. . . the respondent shall make payment to each of the 31 employees
of an amount equal to that which he would have earned as wages as
follows: from October 18, 1937, to the date of the offer of reinstatement
or placement upon a preferential list, less netearn ings during the period,
had the respondent (1)on October 18,1937, discharged so many as might
have been necessary of the persons hired after the commenceinent of
the strike on September 2, and not on its pay roll of that date, and
thereafter refrained from employing so many as might have been
necessary of the persons thereafter employed and not on said pay
roll, who were or are employed in the same or substantially equivalent
positions as those formerly held by the 31 above employees or in posi-
tions for which all or any of them may be qualified, and (2) had it
filled the, positions occupied by such persons with those of the 31
employees who could fill such positions, in accordance with, and
following such system of seniority or procedure as had theretofore
been applied in the conduct of the respondent's business.
As already stated, paragraph 2 (d) of the Order of December 2,
1938, rested, in part,' upon the finding and conclusion of the Board
that the respondent engaged in an unfair labor practice by failing or
refusing on or about October 18, 1937, to dismiss persons in its employ
and listed in Appendix D, to the extent necessary to make work
available for employees named in Appendix B qualified to perform
such work. The respondent in its application to reopen, challenged
the finding that the 31 employees, or some of them, were qualified to
perform the work of the 23 persons, or any of them, and contended
that paragraph 2 (ci) was, accordingly, without factual basis. In
connection with the foregoing, the order of January 18, 1939, directed
the taking of evidence as to
(1) Whether the thirty-one (31) employees named in Appendix
B of said Decision and Order, or any of them, could on October
18, 1937, and/or thereafter have performed the work which said
persons named in Appendix D of said Decision and Order, or
which any other person not on the respondent's pay roll but
hired since September 2, 1937, were or was employed by the
respondent. to perform; that is, whether the positions in which
said persons named in Appendix D and such other persons were
employed, by the respondent were the same as or substantially
equivalent to the positions in which such thirty-one (31) em-
ployees-were employed by the respondent on September 2, 1937,
This paragraph of the Order also was based on the authority of the Board to provide a remedy for the
situation brought about by the unfair labor practices which led to the strike . Matter of McKaig-Hatch; Inc.
and Amalgamated Association of Iron, Steel, and Tin Workers of North America; . Local No. 1139, 10 N. L. R. B.
33, 50 , 52, 53.
McKAIG-HATCH, INC. 1465
or were positions for which said thirty-one (31) persons or
any of them were qualified.
(3) Which, if any, of the thirty-one (31) persons named in
said Appendix B is required by the provision of Paragraph 2 (d)
of the Order of said Decision and Order to be made whole by the
respondent, on account of loss of pay and, if so, for what amount
in so far as an amount will have accrued thereunder at the date
of the hearing herein ordered.
The evidence taken at the further hearing on this branch of the case
concerned itself primarily with the following questions:
(1) Were the 31 employees named in Appendix B, or any'of them,
qualified 19 to perform the work which the 23 persons named in Appen-
dix D were employed by the respondent to perform on or about
October 18, 1937?
(2) If employees'` among' the 31 were qualified to perform such
work, who were they, and what work would they have received had the
respondent not retained in its employpon or about October 18, 1937, to
the extent necessary, the 23 persons, or any of them, and employed in
their stead those of the 31 qualified to do the work, assigning such work
to them in accordance with such system of seniority or other procedure
as theretofore had been applied by the respondent in the conduct of its
business?
(3) By way of compliance, if the respondent, on or about October
18, 1937, in accordance with such system of seniority or other procedure,
had assigned the work of the 23 persons to those of the 31 qualified to
perform it, and continued to make such work available to them, how
much would have been earned by each of the respective employees to
whom such work would have been assigned and made available?
No evidence was taken at the further hearing with respect to
whether there were any persons, other than as concerned those listed
in Appendix D, hired by the respondent since September 2, 1937,
whose work on and after October 18, 1937, had it been made available
to the 31. named employees, would have enabled them, or some of
them, to obtain wages which they otherwise did not earn. There is
no explanation in the record other than certain representations in the
respondent's application for a reopening as to why such evidence was
not adduced. The respondent's application, supported by the veri-
fication of its vice president, alleged that the respondent's plant here
involved had not been operating with over 30 per cent of its usual em-
ployment and that "consequently there has been no opportunity up
10 By "qualified" is meant, among other things, whether the positions occupied by the 23 persons on and
after October 18, 1937, were the same as or substantially equivalent to positions in which the 31 employees
were employed on September 2, 1937. Any finding herein that employees named in Appendix B are or are
not qualified to perform certain work is made solely for the purposes of these proceedings.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the present time to reemploy any of the 31 individuals mentioned
in Appendix B." From what is set forth below, it is plain that the al-
leged diminution in plant employment does not explain the failure of
the respondent to make available to some of the 31 employees work
performed on and after October 18, 1937, by some of the 23 men-
tioned persons. However, since as above stated, no evidence was
introduced concerning the work, if any, on and after October 18, 1937,
of persons other than the 23, hired after September 2, 1937, and not
on the pay roll of that date, we shall treat as true the above-
mentioned allegations, of the application in so far as they relate to
the hiring since October 18, 1937, of persons other than the 23.
Accordingly, we find that on and after October 18, 1937, and until
the time of the further hearing," no work was available at the
respondent's plant to any of the 31 employees, save as hereinafter
determined with respect to work performed by the 23 mentioned
persons. As stated above, the work of all 23, with one immaterial
exception, terminated by way of lay-off prior to the further hearing.
(b) Procedure followed by the respondent in employing persons and
laying off employees in the conduct of its business
As found in the Decision of December 2, 1938, the respondent's
manufacturing is almost entirely on a special-order basis. In conse-
quence, the number and nature of the jobs performed in its plant
varies as the manufacture of different items upon special order is
undertaken and completed. Continuity of employment depends
largely on the skill or skills of the particular employee and the re-
spondent's need therefor in producing the particular items then
being manufactured. In the course of a year an employee may and
usually does perform, often concurrently, several different types of
work, frequently in more than one department in the plant. When
the need for his skill ceases to exist he is laid off until an item is put
into production requiring such skill. Hence, at any one time a sub-
stantial number of the respondent's employees are laid-off workers
awaiting a recall to work in the plant. During periods of lay-off
such workers may be employed elsewhere. However, they constitute
a "pool" of laid-off employees possessing various skills to which the
respondent may turn from time to time as the need arises. For
this purpose the respondent maintains employment records reflecting
the periods of employment and nature of work not only of the em-
ployees who at any particular time are engaged in work in the plant,
but also of the laid-off individuals in the pool.
The respondent follows a procedure of neither recalling laid-off
11 March 10, 1939, the last pay-roll date as to which evidence was introduced at the further hearing, is the
date referred to herein by the expression "the time of the further hearing." -
McKAIG-HATCH, INC. 1467
employees from the pool nor hiring new employees for work on items
put into production, if such work can be performed by employees at
work in the plant. In other words, a qualified employee at work has
a prior right to an available job as against persons in the pool or new
applicants for hire, even though these may be more competent than,
he is.12 If work on a particular item has terminated, and work on a
new product will shortly begin requiring skills such as those possessed
by the employees who completed the finished item, the respondent will
furnish these employees so-called "shop expense" work -consisting
usually of various maintenance or unskilled work, until work on the
new product is begun, and then assign these employees to work at
the new product. However, when work becomes unavailable for
employees in the plant and there is no work to which they shortly
might be assigned, the respondent lays off the number of employees
necessary, first those least competent to perform the work on hand
and, where competency is equal, those with least seniority.
When the necessity arises for recalling or employing persons to
perform work which employees in the plant cannot perform or for
which additional workers are needed, the respondent first exhausts the
possibilities of the pool before hiring persons who never worked in its
plant. In thus selecting laid-off employees for recall it chooses those
most competent to perform the required work and, where competency
is equal, those of greater seniority. Once recalled, a laid-off employee
enjoys the same right of priority to work at hand as others in the plant.
(c) Work performed on and after October 18, 1937, by certain of the 23
persons occupying on September 2, 1937, an employee status the same
as or equivalent to that of the 31 employees
Under the Order of December 2, 1938, the 31 employees named in
Appendix B are to be made whole, in accordance with the terms
thereof, because of their inability on and after October 18, 1937, to
obtain work at the plant which they were qualified to perform but
12 The respondent in its brief of July 23, 1940, agrees to the correctness of the findings herein set forth in
Section 1 (b), save in one instance . The exception involves that portion of the findings expressed in the
above words, "even though these may be more competent than he is ." The respondent contends that
under its procedure an employee in the pool who is "better" qualified for a job than one in the plant will be
recalled for that job and the one in the plant laid off. This contention , it would seem , is concerned more
with a question of language than any dispute over the fact . Competence at performing a given operation in
the respondent 's plant , or aptitude to perform such operation , may vary widely with different employees.
The mateiial question is whether sufficient competence and aptitude exist in a particular case to constitute
qualification for the job. So long as an employee in the plant is qualified and available for the job, he has a
prior right to it against one who has been laid off some time previous and is not at work in the plant, although
the outsider not only is qualified, like the employee in the plant , but may have greater competence and
aptitude . Manager Kempf testified that if some of the 31 employees listed on Appendix B had done work
similar to that performed after October 18, 1937, by persons on Appendix D, and had not been reinstated in
pursuance of their application following the strike , he believed the reason to be that " their work must have
been so poor as to cause the respective foremen to reject them , as far as possible employees on this new work
is concerned ." As found below , the record shows that certain of the employees named on Appendix B were
qualified for the respective work performed by persons on Appendix D and here involved , and that they
were as well qualified for such work as such persons on Appendix D.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which was then being performed by persons named in Appendix D.
The evidence taken at the further hearing shows that 20 of the 23
persons listed in Appendix D were in the "pool" at the time of the
strike on September 2, 1937, and were recalled to work by the respond-
ent after that date. While it is true that these 20 individuals were
laid-off and not new employees when respectively recalled, the
distinction is immaterial, for they could gain no right of priority to
work against the 31 employees who on September 2, 1937, already
were in the plant but were then caused by the respondent's unfair
labor practices to go on strike. However, a different situation ob-
tains as regards the remaining three persons listed in Appendix D,
namely, Leo Hoch, Anthony Grezegorczyk, 13 and Edwin Spencer.
Hoch in fact was at work in the plant at the time of the strike; the
other. two were on temporary leave for the purpose, respectively, of
becoming married and obtaining health treatment. As against
them, the 31 employees listed in Appendix B enjoyed no greater right
to work available on and after October 18, 1937. The status of the
three as employees was the same as or equivalent to that of the 31
employees when the strike began. The respondent committed no un-
fair labor practice in failing on and after October 18, 1937, to. replace
these three with qualified employees among the 31, and accordingly,
no restitution under paragraph 2 (d) of the order of December 2,
1938, is allowable by virtue of work performed by these persons.
(d) Work performed by certain of the 23 persons which could not have
been performed on or about October 18, 1937, in whole or in part by
any of the 31 employees
One person listed in Appendix D, Walter Kaiser, was recalled from
the pool on September 20, 1937, and on or about October 18 was
assigned to work as a hammer man in the forge shop, at which work
he continued, with an intervening lay-off period, until December 23,
1938. None of the 31 employees named in Appendix B was qualified
to do this work. Accordingly, no restitution is allowable under the
Order by virtue of work performed by Kaiser as a hammer man on
and after October 18, 1937.
Another person listed in Appendix D, Louis Stahl, was recalled
from the pool on September 20, 1937, and from on or about October
18 until December 4, 1937, performed certain time-study work and
also other work. None of the 31 employees was qualified to do time-
study work, so far as the record shows, and we so find. While some
of the 31 could perform the work other than time-study work assigned
to Stahl, nevertheless we are of the opinion that the respondent was
not compelled during the above-mentioned period to limit Stahl's work
'3 Designated A. Grzegorezyk in Appendix D.
McKAIG-HATCH, INC. 1469
to a part-time basis and assign him only time-study work in .order to
make work available for the 31 employees. Stahl's position during
this period was that of an employee entitled to retain his position
against the 31. After December 4, 1937, and continuing until his
lay-off on February 9, 1938, Stahl performed various types of work all
of which certain of the 31 employees may have been qualified to
perform. However, we do not resolve this question, for the status,
which he held on October 18, 1937, one not subordinate to that of
any of the 31, was, as regards the right to available work thereafter,
analogous to that of an employee in the plant on September 2, 1937,
who did not go on strike. Restitution in connection with work
performed by Stahl is therefore not allowable.
Four persons in Appendix D, Morley Miller, William Kaiser,
Victor Berra, and Carl Johns, were engaged at milling cable-ball seats
on or about October 18, 1937. They also then devoted part of their
time to other work. All four continued working concurrently at
milling cable-ball seats and at other work until the time of their re-
spective lay-offs. None of the 31 employees, save possibly George
Maedl and Edward Yokes, was qualified to perform the milling opera-
tion of the four mentioned men, although several of the 31 could
perform the work other than milling in which the four men were
engaged. As to the right of the 31 employees, except Maedl and
Yokes, to perform the work of these four men other than milling cable-
ball seats, the applicable principles are those set forth above in con-
nection with Stahl. In regard to Maedl and Yokes, these men, as
stated below, were entitled and should have been assigned on and
after October 18, 1937, to the work of two other persons listed in
Appendix D. We are satisfied that Maedl and Yokes were clearly
and better qualified for this other work than they were for milling
cable-ball seats and that the respondent, had it been willing to make
work available to them at that time, would have assigned them such
other work rather than this milling operation. For this reason, and
in this sense, we find that none of the 31 employees was qualified to
perform the work which Miller, Kaiser, Berra, and Johns performed
after October 18, 1937. No restitution is allowable under the Order
on account of work performed by Miller, Kaiser, Berra, and Johns.
From _ October 18, 1937, until his lay-off on February 9, 1938,
Wallace Nowak," another of the persons listed in Appendix D,
occupied the same position in respect to right to work as that of the
four persons first above-mentioned. However, he was recalled to the
plant on successive occasions subsequent to February 9, 1938, to
perform work which the 31 employees may have been able to perform.
We do not think that restitution is allowable on account of work per-
'4 Designated Wallace Nowack in Appendix D.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed by him either before or after February 9, 1938. As to work
before that date, the principles stated to govern the situation of the
four above-mentioned persons, apply. As to work after that date,
having once acquired a status analogous to that of an employee at
work in the plant on September 2, 1937, Nowak, following the prin-
ciple mentioned in Stahl's case, above, did not lose that status simply
because of subsequent intervening periods of lay-off. No restitution
is allowable under the Order on account of work performed by Nowak.
A. Jobson, listed in Appendix D, was recalled to the plant on
October 26, 1937, • and assigned to work concurrently at heating and
other operations until February 16, 1938. One of the 31 employees,
Maedl, was qualified to do heating, and others may have been qual-
ified to do the other operations. However, as stated below, Maedl,
previous to October 26, 1937, should have been assigned other work
which would have continued beyond that date, and the failure of the
respondent to make such assignment is compensable under the Order.
Maedl could be entitled to only one work assignment at one time, and
hence could have no claim to the heating work of Jobson on October
26. Subsequent to February 16, 1938, Jobson worked as a hammer
man, subject to intervening periods of lay-off, but none of the 31, as
stated above, was qualified to do this work. It follows, upon prin-
ciples already stated, that no restitution is allowable on account of
work performed by Jobson after October 18, 1937.
Budzeszewski, listed in Appendix D, was recalled on October 20,
1937, and assigned work as a heater, at which work he continued, with
intervening lay-offs, until December 23, 1938. As already stated,
none of the 31 employees except Maedl was qualified to do heating,
and Maedl would have been unavailable to perform this work from
October 20; 1937, until February 17, .1938, had he been reinstated to
the position for which compensation is hereinafter allowed him under
the Order. While Maedl would have been available to perform
Budzeszewski's work after February 17, 1938, still at that time
Maedl's right to the work would be no greater than Budzeszewski's
right, under the rule applied above in connection with Stahl. Upon
principles already stated, no restitution is allowable under the Order on
account of work done by Budzeszewski from and after October 20,
1937.
(e) Work assigned to certain of the 28 persons. listed in Appendix D
which certain of the 31 employees were qualified to'perform entirely and
which should have been assigned to them.
Under paragraph 2 (d) of the Order. of December 2, 1938,15 the
respondent is required to make restitution for failing or refusing on
11 See Section 1 (a), supra.
McKAIG-HATCH, INC. 1471
and after October 18, 1937, to make available to employees listed in
Appendix B work for which they were qualified 16 and which was then
being performed by persons named in Appendix D.
The evidence establishes that George Maedl, listed in Appendix B,
was qualified to execute the heating operation being performed from
on or about October 18, 1937, until February 16, 1938, by Eugene
Kaiser, the only person named in Appendix D doing heating on
October 18, 1937.17 While it was shown that three employees in
Appendix D other than Maedl, namely, Vincent Hinca, Swiniarski,
and Lochocki, had had some experience at heating, we find that they
were not qualified to perform this operation and that Maedl alone
was competent to do it. Maedl on that date not only could have
performed heating satisfactorily but may have been qualified to mill
cable-ball seats and do other work then performed by persons in
Appendix D. However, we are satisfied, and find, that Maedl was
better qualified for heating than for any other work performed by the
23 on and after October 18. Since Maedl alone of the 31 was qualified
to do heating on October 18, and was better qualified to do that than
any other workers, and since Kaiser's was the .only heating work then
available, we are convinced that the respondent would have assigned
Kaiser's work to Maedl had it on or about October 18 dismissed
Kaiser. Accordingly, we find that Maedl is entitled under paragraph
2 (d) of the Order of December 2, 1938, to be made whole for the loss
of wages he sustained from October 18, 1937, to February 16, 1938,
because of the respondent's failure or refusal during this period to
assign to him Eugene Kaiser's work at heating, by payment to him of
An amount equal to that earned by Kaiser for performing such work
less Maedl's net earnings 18 during said period. From October 18,
16 See footnote 10, supra.
17 The respondent contends that Maedl was not so qualified, among other reasons, because "it takes on
an average of two years to make a fairly good heater." Maedl worked 3 years in the plant and had had about
5 months' experience at heating in the header department. Irrespectiyeofwhether 2 years' work at heating
is required of an employee before he becomes "a fairly good" heater, it is plain that no such period conditioned
the successful accomplishment of the heating operation' Which Kaiser performed in the forge department
from on or about October 18, 1937, until February 16, 1938. Kaiser, himself, when recalled in October for
this operation had had but 2 months' experience at heating, and, indeed, this 2 months' experience con-
stituted the only plant work Kaiser had ever performed in any plant, whether the respondent's or anyone
else's. Another employee, Budzeszewski, upon his employment by the respondent, was assigned directly
to heating in the forge department, although he previously had been a truck driver. The respondent also
states that the beating operation in the forge department where Kaiser worked "is different" from the
heating operation in the header department where Maedl acquired his experience at heating, and infers
therefrom that Maedl's experience did not qualify him for the heating operation in the forge department.
This statement and inference are not supported by the record. The two operations are similar. One
witness employed in the header department testified that heating in the forge department was "practically
the same thing" as heating in his own department. Production Superintendent Friedl testified that the
furnace used in connection with beating operations in the header department was "similar to the forging
furnace."
Is As stated in'footnote'16 of'th'e-Dccision and Order of December 2, 1938, by "net earnings" is meant
earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection
with obtaining work and working elsewhere than for the respondent,. which would not have been incurred
but for his unlawful' discharge' and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company apd United Brotherhood of Carpenters and Joiners of America, Lumber
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1937, to February 16, 1938, Kaiser earned $540.18. The loss of wages
which Maedl suffered by virtue of his not being assigned this work of
Kaiser is measured by the earnings received by Kaiser for performing
the work. Maedl's net earnings during this period were $300.19 We
find, therefore, that Maedl is entitled under the Order to be paid by
the respondent the sum of $240.18.
Paul Mueller, listed in Appendix D, was employed from on or about
October 18, until November 13, 1937, at countersinking, burring and
inspecting throttle levers. Six of the 31 employees named on Appendix
B, namely, Maedl, Wright, Kaplewicz, Krusyzaniak, Thaddeus Bork,Z°
and Novier, were qualified to perform all this work. Of these six,
Wright was as qualified as and had more seniority than the other five.
Accordingly, we find that had Mueller's work been made available on
or about October 18 such work would have been assigned to Wright."
Although it is shown by the evidence that Wright by virtue of his
competence and seniority also would have been entitled, as against
any other employee listed on Appendix B, to the work performed on
October 18, 1937, by another person on Appendix D, namely, O'Neill,
we are of the opinion, as, above found, that the respondent nevertheless
would have made the work of Mueller available to Wright. We so
conclude for the reason as reflected in a comparison of the earnings
on October 18 and thereafter of Mueller and O'Neill, that Mueller's
work was the more desirable and, other things being equal, would have
Footnota 18-Continued.
and Sawmill Workers , Local No. 2590 , 8 N. L. It . B. 440 . By "unlawful discharge " was meant the discrimi-
natory termination of employment of employees listed in Appendix B, attendant the refusal or failure to
reinstate them.
There is no evidence in the record concerning expenses incurred by Maedl and certain other employees
named in Appendix B whom we find should have been assigned to work performed by the 23 persons named
in Appendix D, in connection with obtaining work and working elsewhere than for the respondent, which
expenses would not have been incurred but for their unlawful discharge and the consequent necessity of
their seeking employment elsewhere . We presume and accordingly find, that there were no such expenses.
The evidence also shows that during the various periods involved Maedl and certain other employees
named in Appendix B whom we find herein should have been assigned to work performed by the 23 persons
named in Appendix )E) received certain sums of money by way of unemployment insurance . Such payments
are not to be considered as earnings and hence are not deductible from the amount of compensation otherwise
due said employees. Matter of Walter Stover, doing business under the trade name and style of Storer Bedding
Company and Upholsterers Allied Crafts Local Union No. 501, 15N.-L. R. B . 635, 651 , footnote 28. Cf. Matter
of Oil Well Manufacturing Corporation, and Employees Mutual Benefit Association., 14 N. L . It. B. 1114,
1129 , footnote 9.
iv From October 18 to December 1, 1937 , Maedl had no employment . From the latter date until April 1,
1938 , he worked as engineer in a school , earning $480 . Prorating this $480 over the period in which it was
earned , $300 is allocable to the period from December 1, 1937, to February 16, 1938.
2s Designated Teddy Bork in Appendix B.
21 The respondent contends that Wright was not qualified to do countersinking of throttle levers in the
carburetor lever department where Mueller worked . Wright was first employed by the respondent in 1927.
and had continuous employment at the plant from September 1935 until the strike in September 1937. The
evidence shows that in so-called "rush periods" Wright was assigned to work in the carburetor lever depart-
ment to perform various tasks including countersinking of throttle levers. We do not think it material to
the issue here presented that Wright performed this work only occasionally . In so far as Mueller is con.
cerned , prior to his recall to work during the strike , Mueller had been employed by the respondent a total
of only 2 months, and had not had more than 7 weeks ' experience at countersinking . We are satisfied, and
Ppd. that Wright w M it 1@^st as well qualified as Mueller to eouptersildk throttle levers. .
McRAIG-14ATCIT, MC. 1473
gone to the available employee 12 on Appendix B with greatest sen-
iority, Wright. On the other hand, O'Neill's work would have been
assigned to another employee on Appendix B qualified for that work
but with less seniority. We find that Wright is entitled under para-
graph 2 (d) of the Order of December 2, 1938, to be made whole for the
loss of wages which he sustained from October 18 to November 13,
1937, because of the respondent's failure or refusal during this period
to assign to him Mueller's work, by payment to him of an amount equal
to that earned by Mueller for performing such work, less Wright's
net earnings 23 during said period. From October 18 to November 13,
1937, Mueller earned $103.49. Wright had no net earnings during
this period. We find that Wright is entitled under the Order to be
paid by the respondent the sum of $103.49.
Percy Chambers and J. Jantze, listed in Appendix D, were employed
from October 18 and 19, 1937, respectively, until January 17 and
January 6, 1938, respectively, at operating degreasing machines on the
new style adjusting wedges. The record shows that three of the 31
employees named on Appendix B, namely Grabowski, Krusyzaniak,
and Chester Herko,24 were qualified to perform this work.?5 There
being no signal difference in the qualifications of these three employees
for this operation, we find that had the respondent made available the
work of Chambers and Jantze to employees listed on Appendix B, it
would have assigned such work among the three qualified employees
upon the basis of seniority, in accordance with its usual practice in
such cases. Grabowski had the most seniority, and Krusyzaniak the
next most seniority. Accordingly, had the respondent made Cham-
bers' and Jantze's work available, Grabowski would have been
assigned to Chambers' work, which was the first to become available;
and Krusyzaniak would have received Jantze's work. We find that
Grabowski is entitled under paragraph 2 (d) of the Order of December
2, 1938, to be made whole for the loss of wages which he sustained from
October 18, 1937, to January 17, 1938, because of the respondent's
failure or refusal during this period to assign to him Chambers' work of
operating the degreasing machine, by payment to him of an amount
equal to that earned by Chambers for performing such work, less
21 By "available" employees is meant those of the 31 who would not have been employed on the date in
question at some other work which was then being performed by persons on Appendix D.
23 See footnote 18, supra. 1
24 Krusyzaniak and Chester Herko were designated Kryzaniak and Chester Harko in Appendix B.
25 The respondent states that Grabowski never operated the degreasing machine and did not "claim
[at the hearing] that he was competent " to do so, and hence contends that Grabowski was not qualified for
that work. In response to interrogation at the hearing concerning the kind of work he performed for the
respondent Grabowski expressly included work on the degreasing machines . This operation is a simple one.
Chambers , the employee recalled to do this work , testified that "anybody with ordinary intelligence can do
it," and Jantze was assigned to this work on October 19 without ever having had any experience at it. With
respect to Krusyzaniak , the respondent contends that he was not qualified because he had not operated a
degreasing machine. However , as above stated , this was also true of Jantze. The work Krusyzaniak pre-
viously performed at the plant shows that he was qualified to operate the degreasing machine. We find
that Grabowski and Krusyzaniak were as competent to operate the degreasing machines as Chambers and
Jantze.
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grabowski's net earnings during said period. We further find that
Krusyzaniak is entitled under paragraph 2 (d) of said Order to be
made whole for the loss of wages which he sustained from October 19,
1937, to January 6, 1938, because of the respondent's failure or refusal
during this period to assign to him Jantze's work, by payment to him
of an amount equal to that earned by Jantze for performing such work,
less Krusyzaniak's net earnings during said period. Chambers earned
from October 18, 1937, to January 17, 1938, the sum of $227.88;
Jantze earned from October 19, 1937, to January 6, 1938, the sum of
$227.14. Grabowski had net earnings of $4 and Krusyzaniak of $15.
We find, therefore, that under the Order Grabowski is entitled to be
paid by the respondent the sum of $223.88, and Krusyzaniak the sum
of $212.14.
(f) Work performed respectively by certain persons named in Appendix
D which on or about October 18, 1937, could have been performed
entirely, but thereafter could not have been performed entirely or sub-
stantially, by an individual employee named in Appendix B, and
which should have been assigned to such employee.
E. Lichtenberger, one of the employees named in Appendix D, was
engaged concurrently on or about October 18, 1937, at broaching
new truck adjusting wedges and at assembling pliers. Three em-
ployees named in Appendix B, Anthony Bork,2fi Falkowski; and
Yokes, were qualified on that date to replace Lichtenberger. While
other employees on Appendix. B were qualified for one or the other
of the two operations which Lichtenberger then performed; we pre-
sume, and we find, that had. the respondent on or about October 18,
1937, made Lichtenberger's work available it would have chosen, in
the first instance, for such work an employee qualified to perform both
operations. As set forth below, Yokes was entitled to be given and
should have been given on October 18 the work of another person on
Appendix D, Ostolski, and hence would not have been available for
assignment to Lichtenberger's work on that date. As between Bork
and Falkowski, both were equally qualified for broaching, but Bork
was better qualified for assembling pliers. Under these circumstances
we find that the respondent on or about October 1.8 would have
assigned Lichtenberger's work to Bork had the respondent then made
such work available. Lichtenberger enjoyed continuous employment
at the plant from October 18, 1937, until January 17, 1938. In this
period he performed concurrently not only the two types of work
above mentioned but other types of work as well. The types of
work which he performed changed several times during the course of
' The respondent in the brief which it submitted to the Board on July 23, 1940, apparently confuses
Thaddeus Bork (Teddy Bork ) with this employee. It presents no argument to the effect that Anthony
Bork was not qualified to perform Lichtenberger 's work, as herein found.
McKAIG-HATCH, INC. 1475
this period. Bork was qualified to do the following operations which
Lichtenberger performed throughout the period: broaching new-style
truck adjusting wrenches, assembling pliers, burring cranks, and
burring and broaching new-style truck operating levers. He was
not qualified for the following of Lichtenberger's assignments: working
on struts, operating the hardening furnace and reaming new-style
truck operating levers. As shown by a comparison of the amount
of compensation paid Lichtenberger for the various types of work
done by him from October 18, 1937, until the beginning of the week
ending December 25, 1937, only a small percentage of such work
could not have been performed by Bork. During the remainder of
the period until January 17, 1938, while the amount of Lichtenberger's
work which Bork could not perform relatively increased, at no time,
as shown by the compensation paid to Lichtenberger, was the amount
of such work the greater portion of all work concurrently performed
by Lichtenberger. We find that Anthony Bork is entitled under
paragraph 2 (d) of the Order of December 2, 1938, to be made whole
by the respondent for the loss of wages he sustained from October 18,
1937, to January 17, 1938, because of the respondent's failure or
refusal during this period to assign to him the various types of work
at which Lichtenberger was employed and which Bork was qualified
to perform, by payment to him of an amount equal to that earned
by Lichtenberger for performing such work less Bork's net earnings
during the period. We do not consider as material to the question
whether Bork is entitled to restitution, the fact that certain types of
work done by Lichtenberger from time to time could not have been
performed by Bork, for the substantial amount of all work concur-
rently being performed by Lichtenberger could have been regularly
performed by Bork, and there is no showing that the respondent
could not have so arranged its assignments of work at the plant, in
accordance with its usual procedure, to the end that the work which
could not have been performed by Bork. would have been performed
by others, and we find that it could have done so. While other
principles might apply if an employee in a position such as Bork's
could perform only a small amount of the work which should have
been made available, we hold that under the circumstances presented,
compensation is proportionately allowable where it is shown that
the employee could perform a substantial amount of such work.
Lichtenberger earned $186.28 at the various types of work which
Bork was qualified to perform during the period involved. Bork
had no net earnings during this period. We find that Bork is entitled
under the Order to be paid $186.28 by the respondent. We note
that Lichtenberger received certain compensation on account of
"shop expense." We are of the opinion that no amount is allowable
under the Order on' account of such an item, for it does not represent
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a regular work: assignment but, as heretofore mentioned, an adjust-
ment to equalize work at the plant.
Ludwig Gerich, named in Appendix D, was engaged on October 18
in burring new truck adjusting wedges. Twenty-one of the employees
listed in Appendix B were qualified to perform this work, and among
the five best qualified to do it 27 Anthony Hinca had the greatest
seniority. We find that had the respondent made Gerich's work
available on October 18 Anthony Hinca would have been assigned to
perform it. In the week succeeding October 23 Gerich not only
continued at the work above mentioned but also inspected carburetor
levers and broached new-style truck adjusting wedges. Until the
week ending December 11, 1937, Gerich also performed the following
types of work: burring new-style truck operating levers, straightening
and inspecting such levers, and reaming them. The record shows
that .Anthony Hinca was qualified to perform all the above-mentioned
operations except broaching new-style truck adjusting wedges and
reaming new-style truck operating levers. However, at all. times from
October 18 to December 11, 1937, the work which Hinca was qualified
to perform constituted a substantial amount of the work being done
by Gerich. In the week beginning on or about December 13, 1937,
Gerich was assigned to work exclusively at milling cable-ball seats
and devoted the substantial portion of the succeeding 2 weeks to the
same work. Anthony Hinca was not qualified to mill cable-ball seats
and we presume, and find, that had he been reinstated on October 18
he would have been laid off or assigned to other work on December 11.
We are of the opinion and find, in accordance with principles stated
above in connection with the reinstatement of Anthony Bork, that
Anthony Hirlca is entitled under paragraph 2 (d) of the Order of
December 2, 1938, to be made whole by the respondent for the loss of
wages he sustained from October 18 until December 11, 1937, because
of the respondent's failure or refusal during this period to assign to
Lini the various types of work at which Gerich was employed and which
Hinca was qualified to perform, by payment to him of an amount
equal to that earned by Gerich for performing such work less Hinca's
net earnings during said period. From on or about October 18 to
December 11, 1937, Gerich earned in performing the operations which
Hinca was qualified to perform, excluding straightening and inspecting
new-style truck operating levers, the sum of $1.09.78. What Gerich
earned at, straightening and inspecting new-style truck operating
levers is not definitely shown.2S Hinca has had no net earnings. We
find that Hinca is entitled under the Order to be paid by the respondent
the sum of $109.78 plus an amount equal to that paid to Gerich for
27 These were Anthony Hinca , Swiniarski , Rederowicz , Aloysius Herko, and Novier.
25 Gerich earned $33.10 at straightening and inspecting new-style truck operating levers in a 2-week period,
I week of which took place after December 11, 1937 . The evidence does not show how much of these earnings
is allocable to the week prior to December 11.
McKAIG-HATCH, INC. 1477
straightening and inspecting new-style truck operating levers from
October 18 to December 11, 1.937.
Francis O'Neill, listed in Appendix D, was employed in the plant .
on or about October 18, 1937, to countersink throttle levers and
inspect carburetor levers, at which work lie continued the following
week. Seven employees 21 named in Appendix B were qualified to do
both these types of work.30 The two persons with greatest seniority
among those best qualified were Wright and Kaplewicz.31 As between
these two Wright had the greater seniority. However, Wright would
not have been available for reinstatement to O'Neill's work on or
about October 18 for the reason that, as found above, he was entitled
to the better position held by Mueller on that date, and should have
been reinstated to that position. We find, therefore, that had the
respondent on or about October 18, 1937, made O'Neill's work avail-
able, the respondent would have assigned it to Kaplewicz. In the
succeeding week ending October 30 O'Neill was assigned part time
to milling screw-driver pliers, a type of work Kaplewicz was not quali-
fied to perform, and, as reflected by compensation received, during
the 3 weeks thereafter worked either all or substantially all of his time
at this operation. It is apparent, therefore, under the principles
stated above in connection with Anthony Hinca's case, that Kaplewicz
would have been laid off or assigned other work on October 30, 1937.
We find in accordance with the principles already stated, that Kaple-
wicz is entitled under paragraph 2 (d) of the Order of December 2,
1938, to be made whole by the respondent for the loss of wages he
sustained from October 18 to 30, 1937, because of the respondent's
failure or refusal during this period to assign to him the various types
of work at which O'Neill was employed; except milling screw-driver
pliers, by payment to him of an amount equal to that earned by O'Neill
for performing such work, less Kaplewicz's net earnings during the
period. O'Neill earned in performing the operations which Kaplewicz
was qualified to perform, excluding inspecting carburetor levers, the
29 These seven were : Wright, Liska , Maedl, Kaplewicz , Krusyzaniak , Thaddeus Bork , and Novier.
30 While there were more than these seven on Appendix B who could perform either type of work, only
these seven were qualified to do both types . The presumption as to work assignment in such situation has
been set forth above in connection with Lichtenberger 's case.
31 The respondent states that it is "inclined to agree" that Kaplewicz was qualified for this work, but con-
tends that it properly retained O'Neill on and after October 1S despite the right which Kaplewicz otherwise
had as a striking employee to be reinstated, because O'Neill was doing this work as part of a course of training
to prepare him for machine setting . In connection with such training it is the respondent ' s practice to assign
the employee to work at a number of the machines in the plant . The respondent also states that Kaplewicz
was not qualified" for machine setting. We are satisfied that Kaplewicz was at least as well fitted as, if
not better fitted than , O'Neill to be trained for such work . Kaplewicz had much more experience in the plant
and at machine work. In any event the respondent cannot here justify its denial of Kaplewicz 's application
for reinstatement to work he was qualified to perform merely because it had undertaken , pursuant to an
arrangement with a person recalled during the strike, to train such person for machine setting. The re-
spondent would have to show, which it did not, that in training machine setters , generally , it customarily
lays off regular employees in order to make available their machines for training purposes ; that the training
of O'Neill for machine setting was essential at the time he was recalled , and his assignment to the particular
machines here involved rather than to other machines was then necessary to his training ; and that Kaplewicz
either was unfit for such training or if fit had been offered such training by the respondent and had refused it.
323429-42-94
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sum of $27.74. The record does not disclose with particularity the
amount earned by O'Neill during the period involved at inspecting
carburetor levers.32 Kaplewicz had no net earnings during the period.
We find that Kaplewicz is entitled under the Order to be paid by the
respondent the sum of $27.74 plus an amount equal to that paid to
O'Neill for inspecting carburetor levers from October 18 to 30, 1937.
Franklin Fairington, listed in Appendix D, worked on October 18,
1937, at broaching new truck adjusting wedges and burring new-style
truck operating levers. Four employees on Appendix B of equal
competence, Anthony Borl., Yokes, Kaminski, 33 and Falkowski, were
qualified to perform both these operations.34 One of the four, Bork,
we have considered above and have allowed him compensation on
account of the respondent's failure to make available to him work
then being performed by Lichtenberger. We found that Bork was
the best qualified of all employees in Appendix B, including Falkow-
ski, to do that work. We also haveabove'considered Yokes and allowed
him restitution. Hence, on October 18 the only qualified employees of
those named in Appendix B who would have been. available for Fair-
ington's work were Kaminski and Falkowski, and as between them
the greater seniority lay with Kaminski. We find that had the
respondent on or about October 18 made Fairington's work available,
the respondent would have assigned it to Kaminski. ' Fairington
worked at broaching and burring until the beginning of the week
ending November 13, 1937. That week and thereafter he devoted
the substantial amount of his time, as shown by his earnings, to finish
milling ball seats on the new-style truck operating lever, a type of
work which Kaminski was not qualified to perform. Therefore, had
Kaminski replaced Fairington on or about October 18, 1937, he,
Kaminski, would have been either laid off or assigned other work on
32 O'Neill earned $9.24 at inspecting carburetor levers from on or about October. 18 to November 6, 1937.
The evidence does not show how much of these earnings is allocable to the period preceding October 30.
33 The respondent states that "Nowhere in Kaminski's testimony does he claim that he ever had any
experience in broaching new style truck adjusting wedges." The record shows that this operation was
first begun in the plant during or after the strike, and, hence, neither Kaminski, Fairington, nor any other
employee had had previous experience at it. However, Kaminski worked 3 years in the plant at various
operations, including broaching old style truck adjusting wedges, and was well qualified, we feel at least
as well qualified as Fairington, to broach the new-style truck adjusting wedges. The respondent also
states that the foreman of the adjusting wedge department "asked for Fairington's recall to work" during
the strike "because he was a smart boy and best qualified to do the work." We do not think that such
opinion of the foreman is controlling upon the question whether the respondent, upon application, should
have reinstated the striking employee to work for which he was qualified. If Kaminski was qualified to
perform the work which the respondent recalled Fairington to perform during the strike, the respondent
was under duty to replace Fairington with Kaminski when the application for reinstatement was made.
We are satisfied, and find, that had there been no strike and had Kaminski been at work in the plant
when this operation on the new-style truck adjusting wedges began, the respondent would have assigned
Kaminski to such operation, if he was not otherwise occupied, and would not have recalled Fairington for
such work. That Fairington began work during the strike, resulted in his acquiring no indefeasible right
to the work as against Kaminski.
34 While there were more than these four in Appendix B who could perform either type of work, only
these four were qualified to do both types. See footnote 30, supra.
McKAIG-HATCH, INC. 1479
November 8, 1937, and we so find. Accordingly we find, in accord-
ance with principles already stated, that Kaminski is entitled under
paragraph 2 (d) of the Order of December 2, 1938, to be made whole
by the respondent for the loss of wages he sustained from October
18 to November 6, 1937, because of the respondent's failure or re-
fusal during this period to assign to him the work at which Fairington
was employed, by payment to him of an amount equal to that earned
by Fairington for performing such work, less Kaminski's net earnings
during the period. Fairington earned at this work, excluding burring
new-style truck operating levers, the sum of $33.71. The record does
not show specifically the amount earned by Fairington during the
period involved at burring new-style truck operating levers.35 Ka-
minski has had no net earnings during the period. We find that
Kaminski is ,entitled under the Order to be paid by the respondent
the sum of $33.71 plus an amount equal to that paid to Fairington
for burring new-style truck operating levers from October 18 to
November 6, 1937.
Benjamin Ostolski, listed in Appendix D, concurrently turned
diameters on the new-style truck adjusting wedges and burred new
truck operating levers on or about October 18, 1937. He devoted the
substantial amount of his time to this work until on or about Novem-
ber 27, 1937, when he engaged solely in hollow milling struts. Only
one employee in Appendix B, Yokes, was qualified to perform both
operations.36 We find that had the respondent on that date made
Ostolski's work available, such work would have been assigned to
Yokes. However, Yokes was not qualified to perform hollow milling
of struts. Hence, had lie replaced Ostolski on October 18, Yokes
would have been laid off or assigned other work on or after Novem-
ber 27, 1937. We find in accordance with the principles stated above,
that Yokes is entitled under paragraph 2 (d) of the Order of Decem-
ber 2, 1938, to be made whole by the respondent for the loss of wages
he sustained from October 18 to November 27, 1937, because of the
respondent's failure or refusal during this period to assign to him the
types of work at which Ostolski was employed and which Yokes was
qualified to perform, by payment to him of an amount equal to that
earned by Ostolski for performing. such work, less Yokes' net earnings
during said period. Ostolski earned from October 18 until Novem-
ber 27, 1937, at the operations which Yokes was qualified to perform,
36 Fairington earned $25 . 52 at burring new-style truck operating levers from on or about October 18, 1937,
through January 1, 1938. The evidence does not show how much of these earnings is allocable to the period
prior to November 6, 1937.
36 The respondent states that Yokes "does not claim that he had had any experience turning diameters
on the new -style truck adjusting wedges." This operation was first begun during or after the strike, and
no employee, including Ostolski, had theretofore done it. Prior to the strike Yokes worked about a year
at turning diameters on the old-style truck adjusting wedges. We are satisfied , and find , that Yokes was
at least as well qualified as Ostolski to work on the new-style truck adjusting wedges. Had there been no
strike the respondent would not have recalled Ostolski for such work if Yokes, who was in the plant, was
available to perform it . See, in this connection , the views we have expressed in footnote 33, supra.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sum of $126.63. Yokes had no net earnings during this period.
We find that Yokes is entitled under the Order to be paid $126.63
by the respondent.
Charles Carson, named in Appendix D, was employed from October
18 to 23, 1.937, at straightening levers and trimming. Four employees
listed in Appendix B, Anthony Hinca, Wright, Sroke, and Opacki
were qualified to do the two operations, and of these four Sroka and
Opacki were better qualified to straighten levers, the operation which
constituted the substantial part of the work performed by Carson.37
Sroka and Opacki were equally competent, but Sroka had the greater
seniority. Thus, had the respondent on October 18, 1937, made
Carson's work available, such work would have been assigned to Sroka.
In the week following October 23, 1937, Carson was assigned to
heating, an operation which only one employee in Appendix B, Maedl,
was qualified to perform. As indicated above, on October 18 Maedl
was entitled to and should have been assigned to Eugene Kaiser's
work at heating, and had he been so assigned he would have been
unavailable to perform Carson's work at heating. Sroka could not
perform this operation and consequently, on October 23, 1937, would
have been laid off or assigned other work. Under these circum-
stances, Sroka alone is entitled to receive compensation in connection
with the failure to make Carson's work available. We find that
Sroka is entitled under paragraph 2 (d) of the Order of December 2,
1938, to be made whole by the respondent for the loss of wages lie
sustained from October 18 to 23, 1937, because of the respondent's
failure or refusal during this period to assign to him Carson's work,
by payment to him of an amount equal to that earned by Carson for
performing such work, less Sroka's net earnings during the period.
Carson earned at such work the sum of $28.75, and Sroka had no
earnings during the period. We accordingly find that Sroka is en-
titled under the Order to be paid by the respondent the sum of $28.75.
Carl Wilmoth, named in Appendix D, was employed from October
18 to 23, 1937, at inspecting carburetor levers. Many of those listed
in Appendix B were competent to perform this work, but Vincent
Hinca was best qualified and had the most seniority.38 Had the
37 The respondent agrees that Sroka was qualified for this work , but contends that "this work was given
to Carson only to retain his services as a heater " "while waiting for dies and hammer repairs ." Although
Sroka was not qualified to perform heating, the record does not show that Carson , following a 5 months'
lay-off, was recalled to the plant in September for the purpose contended by the respondent . During the
month after his recall Carson did no heating.
33 The respondent states that "there is probably no doubt that Vincent Hinca could have performed the
work of inspecting carburetor levers," but contends that "Wilmoth was being kept in the plant because he
was a heater," that because of illness Wilmoth was placed "temporarily on some other work only to keep
his services as a heater ." We are not convinced that Wilmoth was retained at inspecting carburetor levers
on and after October 18 in order to have him available for heating. He was recalled on September 23, 1937,
during the strike , and for 2 months performed no heating . When asked at the hearing as to the reason for
assigning Wilmoth work other than heating, Wilmoth's foreman merely stated that he "felt sorry for the
lad" and "did not want to fire him" because he was sick . The respondent has not justified its refusal to
reinstate Hinca to work he was qualified to perform.
- McKAIG-HATCH, INC. 1481
respondent on October 18 made Wilmoth's work available, Vincent
Hinca would have been assigned to it. Following a leave of absence
beginning on or about October 23, 1937, Wilmoth returned to work
on November 16, 1937, to perform several operations, including heat-
ing. However, as set forth above, only one employee in Appendix
B, Maedl, was qualified to perform heating and on November 16,
1937, he would not have been available to do the work. Heating
constituted a substantial part of the work performed by Wilmoth on
November 16 and during the succeeding 3 weeks. Upon principles
heretofore stated, no compensation is allowable under the Order of
December 2, 1938, for work perlormed by Wilmoth on and after
November 16, 1937. However, Hinca is entitled to restitution by
virtue of the respondent's not making available to him the work
performed by Wilmoth in the week of October 18, 1937. We there-
fore find that Vincent Hinca is entitled under paragraph 2 (d) of the
Order of December 2, 1938, to be made whole by the respondent.for
the loss of wages he sustained from October 18 to 23, 1937, because
of the respondent's failure or refusal during this period to assign to
him Wilmoth's work, by payment to Hinca of an amount equal to
that earned by Wilmoth for performing such work, less Hinca's net
earnings during the period. Wilmoth earned $14.63 and Hinca had
no net earnings during this period. We accordingly find that Vincent
Hinca is entitled under the Order to be paid the sum of $14.63 by the
respondent.
We have found above that on or about October 18, 1937, the fol-
lowing 11 employees among the 31 named in Appendix B, Maedl,
Wright, Anthony Bork, Grabowski, Kaplewicz, Anthony Hinca,
Kaminski, Yokes, Krusyzaniak, Sroka, and Vincent Hinca, were
qualified to perform work then being done respectively by the follow-
ing 11 persons among the 23 listed in Appendix D, Eugene Kaiser,
Mueller, Lichtenberger, Chambers, O'Neill, Gerich, Fairington,
Ostolski, Jantze, Carson, and Wilmoth. In the Decision of December
2, 1938, the Board found and held:
Moreover, we are satisfied from the above-quoted testimony of
Kempf and the record that 23, or if not as many as that number
nevertheless a substantial part, of the 31 striking employees would
have been reinstated at the time application for reinstatement was.
made, by them and within a short period thereafter, had the
respondent after application was made dismissed so many of the
23 persons hired since, and not in -its employment at, the, com-
mencement of the strike, as it then had in its employment, and
refrained from hiring persons not in its employment at the
commencement of the strike, to the extent necessary to make
positions available to the 31 applicants. The failure of the
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent to make any such displacement at the time of applica-
tion and to refrain from so hiring thereafter, for no reason other
than its unwillingness to do so, in effect and in result discriminated,
and constituted a discrimination, concerning hire and tenure of
employment against the employees who went on strike against
the respondent's anti-union conduct, and in favor of employees
whose position was one of sufferance, without greater right to their
positions than their employer's defeasible right to employ them
could afford. A preference of this character discourages union
membership.39
The foregoing findings are affirmed by the supplemental findings of
fact herein made. The respondent in its application for a reopening
of the record stated "that if permitted it can produce competent and
satisfactory evidence that these said 23 men [listed in Appendix D]
were not doing the work of the 31 . . . [employees named in Appendix
B] who were not reemployed. . . ." We find that the evidence
adduced by the respondent at the hearing fails to support the prof-
fered showing and that the entire record, as already stated, establishes
the contrary.
We also have found that had the respondent on or about October
1.8, 1937, discharged the 11 above-named persons listed in Appendix D
and filled their positions with those of the 31 employees in Appendix
B, in accordance with and following such system of seniority or pro-
cedure as was theretofore applied in the conduct of the respondent's
business, the 11 above-named employees named in Appendix B would
have filled such positions, respectively, in manner already stated, and
would have earned wages therefor, as already set forth. We shall
amend paragraph 2 (d) of the Order of December 2, 1938, to state
with particularity the employees entitled to be made whole and the
amount of compensation to be paid them under paragraph 2 (d).
2. REINSTATEMENT UNDER PARAGRAPH 2 (C) OF THE ORDER OF
DECEMBER 2, 1938.
Paragraph 2 (c) of the Order of December 2, 1938, directed the
respondent to
Offer to the employees named in Appendix J3_ immediate and
full reinstatement, without prejudice to their seniority and other
39 Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North
America , Local No. 1149, 10 N. L . R. B. 33, 50. See also , Matter of The M. H. Ritzwoller Company and
Coopers ' International Union of North America, Local No . QS, enforced in The M . IT Ritzwoller Company, a
corporation , v. National Labor Relations Board , 114 F. (2d) 432 (C. C. A. 7); cf. National Labor Relations Board
v. American Manufacturing Company Nu-Art Employees , Inc., 106 F. (2d) 61 (C. C. A. 2), aff'd. as mod.
309 U. S. 629 , enf'g Matter of American Manufacturing Company ; Company Union of the American Manufac-
turing Company ; the Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing
Company and Textile Workers ' Organizing Committee , C. I. 0., 5 N. L. R. B. 443.
McKAIG-HATCH, INC. 1483
rights and privileges, in the manner set forth in the section
entitled "Remedy'.' above, placing those employees for whom
employment is not immediately available and those who although
reinstated are reinstated not to their former or substantially
equivalent positions but to positions for which they are qualified
upon a preferential list in the manner set forth in said section.
In the section of the Decision entitled "Remedy" referred to in
paragraph 2 (c) of the Order, provision respecting reinstatement and
placement on a preferential list is made.
We have found above 40 that on or about October 18, 1937, and
thereafter until the time of the additional hearing, no work was avail-
able at the respondent's plant to any of the 31 employees named in
Appendix B save as performed by the 23 persons named in Appendix
D, and as to these 23 their work, with three immaterial exceptions 41
terminated by way of lay-off prior to the issuance of the Order of
December 2, 1938. It follows that as of the time of the issuance of
the Order and as of the time of the additional hearing the employees
listed in Appendix B were entitled under the above-mentioned para-
graph of the Order to be placed on the preferential hiring list therein
described. The re^pondent asserts that these employees are on a
preferential list. However, it is not clear that the list to which the
respondent adverts conforms with the requirements of the Order.
Under paragraph 2 (c) of the Order these employees were and are
entitled to reinstatement and work in available positions for which
they were and are qualified before the hiring of other persons for such
positions and work. Whether the respondent, in placing these em-
ployees on its preferential list, has thereby accorded such employees
this prior right to positions and work, is not disclosed by the record
and, in any event, whether these employees since the time of the addi-
tional hearing have been reinstated to available positions cannot be
determined from the record. For these reasons we refer to the Re-
gional Director for purposes of further investigation and compliance
with the Order the matter of the placing of the employees listed in
Appendix B on the preferential list and their reinstatement. Nothing
herein contained shall be interpreted as affecting the continuing force
of paragraph 2 (c) of the Order, and the Regional Director shall pro-
ceed thereunder in conformity therewith and in conformity with the
determinations we have made herein.
4 0 Section 1 (a), supra.
41 The three instances of work performed after December 2, 1938, by persons listed in Appendix D, referred
to above , are (1 ) operation of the hammer in the force shop, an operation then performed by Walter Kaiser,
(2) the heating operation then performed by Budzeszewski . and (3 ) various operations by Spencer. None
of the 31 employees was qualified to do hammering . While one of the 31 employees, Maedl, could perform
heating, this was not the same as or substantially equivalent to his previous position . The work of Spencer
was not available to the 31 employees , for reasons above appearing . See Sections 1 (c) and (d), supra.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER AMENDING ORDER
On the basis of the above supplemental findings of fact and conclu-
sions of law, and pursuant to Section 10 (c) and (d) of the National
Labor Relations Act, the National Labor Relations Board hereby
modifies its Order of December 2, 1938, herein, by striking therefrom
paragraph 2 (d) thereof and substituting therefor the following:
(d) Make whole the following named employees for the loss of
wages they sustained by reason of the respondent's discriminatory
failure or refusal on or about October 18, 1937, to reinstate and
make work available to-them, by payment to them of a sum of
money equal to the amount set forth or indicated opposite their
names, respectively, viz: George Maedl-$240.18; Henry Wright--
$103.49; Stanley Grabowski-$223.88; Frank Krusyzaniak-
$212.14; Anthony Bork-$186.28; Edward Yokes-$126.63;
Arthur Sroka-$28.75; Vincent Hiiica-$14.63; Anthony Hinca-
$109.78 plus the amount earned by Gerich at straightening and
inspecting new-style truck operating levers from October 18 to
December 11, 1937; Joseph Kaplewicz--$27.74 plus the amount
earned by O'Neill at inspecting carburetor levers from October
18 to 30, 1937; Walter Kaminski-$33.71 plus the amount earned
by Fairington at burring new-style truck operating levers from
October 18 to November 6, 1937.
APPENDICES 42
"B"
Henry Waligura
(Henry Waligora)
Arthur Sroka
Joseph Ciesielski
Joseph Hinca
Walter Kaminski
Joseph A. Lochocki
Roger Novier
Anthony Hinca
Frank Red erowicz
Anthony Bork
Aloysius Herko
Stanley Grabowski
Frank Kryzaniak
(Frank Krusyzaniak)
Frank Skolyan
Andrew Krempa
John Gorski
Frank Swiniarski
John Boldt
Joseph Liska
Stephen Gajdowski
George Maedl
Edward Yokes
Kleber Pecquer
Joseph Opacki
Teddy Bork
(Thaddeus Bork)
Chester Harko
(Chester Herko)
Joseph Kaplewicz
Charles Muehlbauer
Vincent Hinca
Henry Wright
Walter Falkowski
42 The names are spelled as they were in the Decision and Order of December 2, 1938. In parentheses
following certain of the names are stated the correct spelling of these names.
McXAIG-HATCH, INC.
«D>>
Eugene Kaiser
Walter Kaiser
William Kaiser
Charles Carson
E. Lichtenberger
A. Grzegorczyk
(Anthony Grezegorczyk)
Wallace Nowack
(Wallace Nowak)
Franklin Fairington
Percy Chambers
Paul Mueller
Edwin Spencer
Victor Berra
Louis Stahl
Leo Hoch
Carl Wilmoth
Francis O'Neill
Morley Miller
Carl Johns
Ludwig Gerich
Benjamin Ostolski
A. Jobson
J. Jantze
H. Budzeszewski
1485
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Supplement to Decision and Order Amending Order.