National Die Casting Co.

National Labor Relations Board - Board Decisions

May 25, 1951

94 N.L.R.B. 845 (N.L.R.B. 1951)

NATIONAL DIE CASTING COMPANY 845
As part of its investigation of compliance, the Board will, of
course, consider any relevant information brought to its attention.
All information submitted by Respondent in this case was consid-
ered by the Board before it made its determination that the Union.
was in compliance with Section 9 (h) of the Act.
Turning to Respondent's request which was denied by the Regional
Director, while no party is entitled as a matter of right to such infor-
mation, the Board's policy is to have its agents release to interested
parties, under proper safeguards, the names of designated union offi-
cers and of persons who have filed the required affidavits. Because
Respondent failed to obtain this desired information, whatever the
reason, its request will be referred to the Regional Director for ac-
tion in accordance with the Board's policy. If Respondent, after it
has received the information which it desires, brings to the Board's
administrative attention any pertinent additional information con-
cerning the Union's compliance status, the Board will, of course, con-
sider further the question of compliance in the light of such new
matter.
The Union's motion to strike Respondent's motion from the files
is without merit.
IT IS IIEREBY ORDERED that Respondent's motion for reconsidera-
tion be, and it hereby is, desired; that Respondent's motion to strike
the above quoted portion of footnote 4 of the Decision be, and it hereby
is, granted; and that the Union's motion to strike Respondent's mo-
tion from the files be, and it hereby is, denied.
15, 1951 ) ; Vulcan Forgmg Company, 85 NLRB 621 , reversed on other grounds 188 P 2d 927
(C. A 6, March 23, 1951) , Ann Arbor Press, 85 NLRB 28, enforced as modified 188 P 2d 917
(C A 6, March 25, 1951) ; Greensboro Coca Cola Bottling Company, 82 NLRB 67, entorced
180 F 2d 840 (C A 4) Cf N L R B v Highland Park Mfg Co, 184 U S 98, decided
May 14, 1951 (28 LRRM 2083)
NATIONAL DIE CASTING COMPANY and CHICAGO AMALGAMATED LOCAL
758, INTERNATIONAL UNION, MINE, MILL AND SMELTER WORKERS.
Case No. 13-CA-370. May 05, 1951
Decision and Order
On January 12, 1951, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and, recommending, that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
94 NLRB No. 130
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
of these allegations. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a brief in support thereof. In addition,
the Respondent requested oral argument which is hereby denied as
the record and brief, in our opinion, adequately present the issues and
positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.2
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the following additions and modifications.3
1. The Trial Examiner found that the Respondent discriminatorily
failed to recall Obermeyer after the general layoff of April 28, 1949.
We do not agree, for we are unable to accept the Trial Examiner's
preliminary finding that the Respondent made no genuine effort to
recall Obermeyer. In,support of this finding, the Trial Examiner
stated that General Foreman Lindbloom testified that he went "to some
address" which he couldn't recall, but was unable to contact anyone
who knew Obermeyer. According to the record, however, Lind-
bloom's testimony as to the address he visited was not as vague as it
appears in the Intermediate Report. Lindbloom said that he went
to an address "on Western Avenue just north of Armitage on the west
side of Western, I don't recall the exact address, . . ." where he had
visited 7 or 8 months before the layoff to leave a message with Ober-
meyer's wife. Lindbloom subsequently gave the exact address. The
Trial Examiner also attached controlling significance to the fact that
the Respondent did not seek to reach Obermeyer at the "home address
given by him as a witness," which also appeared in his personnel file.
However, the record shows that this particular address was entered in
his file in 1941, when he was first employed, and that his file contained
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Reynolds and Murdock].
2 The Trial Examiner at the hearing was Josef L Hektoen , now deceased. C. W.
Whittemore was duly designated by the Chief Trial Examiner to prepare the Intermediate
Report in this case.
8 The Intermediate Report contains certain inadvertances , none of which affects the
Trial Examiner 's ultimate conclusions , or our concurrence therein. Accordingly , we note
the following corrections : ( 1) The Trial Examiner states that the Respondent 's counsel
spoke to a Board agent on October 10, 1949, the record shows that this occurred on
November 7, 1949 ; ( 2) according to the record , Foreman Lindbloom testified that Tincher,
who was hired as a machine operator and engaged in filing operations , "wasn't especially
efficient" as a filer. The Trial Examiner referred such characterization to the machine
operation . In addition , we find it unnecessary to rely on any inferences drawn by the
Trial Examiner from the Respondent ' s failure to assert all of its affirmative defenses in
its answer to the complaint
NATIONAL DIE CASTING COMPANY 847
subsequent address changes in 1042, 1946, and 1948-the latter one
being the above-mentioned Western Avenue. Moreover, Obermeyer
failed, as requested at the time of the layoff, to advise the Respondent
of any subsequent change of address.
We are of the opinion that under the circumstances the Respondent
made reasonable efforts to recall Obermeyer and would have done so
had it been able to locate him. We shall therefore dismiss the 8 (a).
(3) allegation of the complaint concerning Obermeyer.
2. The Trial Examiner found, and we agree, that the Respondent
also discriminatorily refused to recall five other employees, all of
whom were members of the Union's shop committee that met with the
Respondent concerning contract negotiations, grievances, and other
conditions of employment. Having found that the Respondent's re-
peated refusals to negotiate a new contract manifested its clear intent
to cease dealing with the Union and thereby expressed antipathy
toward that organization, the Trial Examiner concluded that the
April 28 layoff was used by the Respondent as an opportunity and a
pretext of ridding the plant of union leaders 4 Moreover, in apprais-
ing the Respondent's motive, it is significant that on the day of the
layoff, there were heated discussions between the members of the shop
committee and the Respondent concerning the retention of the com-
mittee members during the layoff period.
As to two employees, Peter Nardi and George Fulk, the Respondent
contended that they were not recalled because of their alleged viola-
tion of a no-strike clause contained in an existing contract at the time-
of the layoff. We agree with the Trial Examiner's rejection of this,
argument for the reason that no credible evidence was adduced to show-
that any strike occurred. There may have been some decrease in-
production on the last day of work, but such was the natural con-
comitant of the impending layoff and not the result of any deliberate
act by Nardi and Fulk to interfere with production. The abortive,
attempt of these employees to persuade the toolroom employees to
refuse to come to work on the day following the layoff was not, if only-
because it was unsuccessful, violative of the contract.
The Respondent also contended that it refused to recall three other-
employees, Parenti, Tincher, and Ira Fulk, because they were not
as capable or as versatile in their duties as those who were rehired.
The record shows that as of April 28, 1949, the date of the layoff,
the Respondent had 71 production employees; and by October 1949,
its production force had been increased to 131 employees. As pointed
out by the Trial Examiner, it is reasonable to believe that Parenti,
4 Inasmuch as the complaint only alleges a discriminatory failure to recall the laid-off-
employees, we do not adopt the Trial Examiner ' s finding that these employees were "in
effect" constructively discharged It is clear, however, that the basis for this finding
also establishes a discriminatory failure to recall.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tincher, and Ira Fulk, were at least as efficient as the new and untried
employees who were hired after production was resumed.5
3. In view of his finding that the five laid-off employees were con-
structively discharged on April 28, 1951, the Trial Examiner recom-
mended that they be awarded back pay from that date. As we have
found, however , as alleged in the complaint , that these employees
were discriminated against by not being recalled, we shall order the
Respondent to make them whole for any loss of pay they may have
suffered as a result of the discrimination against them by payment to
each of a sum of money equal to that which he would have earned as
wages from the date each would normally have been rehired, absent
the discrimination, to the date of the Respondent's offer of reinstate-
ment.
Order
Upon the basis of the above findings of fact and 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, National Die Casting Company, Lincoln-
wood , Illinois, its officers , agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in Chicago Amalgamated Local 758,
International Union, Mine, Mill and Smelter Workers, or in any other
labor organization of its employees by discriminatorily refusing to
reemploy them, or by discriminating in any other manner in regard
to their hire, tenure of employment, or in any term or condition of
employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Chicago Amalgamated Local
758, International Union, Mine, Mill and Smelter Workers, or any
other labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in 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 membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act,
as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Peter Nardi, George Fulk, Ira Fulk, Eugene Parenti,
and Roy Tmcher, immediate and full reinstatement to their former
See H & H Manufacturing Company, Inc, 87 NLRB 1373, 1376
NATIONAL DIE CASTING COMPANY 849
or substantially equivalent positions without prejudice to their sen-
iority and other rights and privileges.
(b) Make whole the five named employees in the manner set forth
in the section of the Intermediate Report entituled "The Remedy" as
modified herein.
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due.
(d) Post at its plant in Lincolnwood, Illinois, copies of the notice
attached hereto as Appendix A.6 Copies of such notice, to be fur
nished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by it for sixty (60) consecutive days thereafter in conspicuous places
including all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
IT Is EuRTUER ORDERED that the complaint, insofar as it alleges that
the Respondent has discriminated against Thomas Obermeyer, How-
ard Sullivan, and Naomi Gleistein, be, and it hereby is, dismissed.
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 discourage membership in CHICAGO AAIALGA-
MATED LOCAL 758, INTERNATIONAL UNION, MINE, MILL AND
SMELTER WORKERS, or discourage activity in support of that or-
ganization or any other labor organization, or discourage any
employee from exercising the rights secured to him under the
National Labor Relations Act by means of discriminatory re-
fusal to reinstate or discriminating in any other manner in re-
gard to hire or tenure of employment or any term or condition
of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
6In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing"
953841-52-vol 94-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, to form labor organizations, to join or assist CHICAGO AMAL-
GAMATED LOCAL 758, INTERNATIONAL UNION, MINE, MILL AND
SMELTER WORKERS, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all 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 employ-
ment, as authorized in Section 8 (a) (3) of the Act, as guaran-
teed in Section 7 thereof.
WE WILL offer to Peter Nardi, George Fulk, Ira Fulk, Eugene
Parenti, and Roy Tincher immediate and full reinstatement to
their former positions and make them whole for any loss of pay
suffered.
NATIONAL DIE CASTING COMPANY,
Employer.
By --------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Dir. Ivan C. McLeod, for the General Counsel.
Mr. Russell Packard, of Chicago, Ill., for the Respondent.
Meyers, Meyers and Rothstein, by Messrs. Irving Meyers and David B. Roth-
stein, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by Chicago Amalgamated Local 758, International
Union, Mine, Mill and Smelter Workers, herein called the Union, the General
Counsel of the National Labor Relations Board, herein respectively called the
General Counsel and the Board, by the Regional Director for the Thirteenth
Region (Chicago, Illinois), issued a complaint dated June 15, 1950, against
National Die Casting Company, Lincolnwood, Illinois, herein called the Respond-
ent, alleging that the Respondent had engaged in and was engaging in unfair
labor practices, 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
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges, in substance,
that the Respondent: (1) having on April 28, 1949, for economic reasons laid off
its production employees for an indefinite period and having thereafter, between
May 8 and October 8, 1949, recalled substantially all of them' and hired some
30 new employees nevertheless failed to recall employees Peter Nardi, George
Fulk, Ira Fulk, Eugene Parenti, Naomi Gleistein, Howard Sullivan, Roy Tincher,
and Thomas Obermeyer, all members or former members of the Union's shop com-
NATIONAL DIE CASTING COMPANY 851
mittee, because of their union membership and activities; and (2) thereby inter-
fered with, restrained, and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act.
Before the hearing, the General Counsel made a written "Request for Admis-
sions" of counsel for the Respondent ; the Respondent thereafter filed a "Reply
to Request for Admissions."
The Respondent duly filed an answer admitting certain allegations of the com-
plaint with respect to the nature of its business, but denying the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held in Chicago, Illinois, from July 10 to 18,
1950, before Josef L. Hektoen, a Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel, the Respondent, and the Union were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded to all parties. At the opening of the hearing the
General Counsel moved to strike a portion of the Respondent's answer alleging
that the Union was the victim of "Communist infiltration and domination." The
motion was granted. General Counsel made two additional motions with respect
to the pleadings, both of which were denied. At the close of the General Counsel's
case-in-chief, counsel for the Respondent moved to strike all evidence respecting
employee Sullivan. The motion was denied. Motions by the same counsel to
strike what he interpreted as evidence of violations of Section 8 (a) (5) and
independent violations of Section 8 (a) (1) of the Act were likewise denied.
Motions to dismiss the complaint were also denied. Renewed at the close of
the hearing, ruling was reserved upon them. Said motions are disposed of by
the findings, conclusions, and recommendations appearing below. Oral argu-
ment was waived by the.parties ; briefs were thereafter filed by the Respondent
and the General Counsel.
On December 4, 1950, by order of the Chief Trial Examiner, the undersigned
Trial Examiner was designated to prepare an Intermediate Report in this case,
due to the death of Trial Examiner Hektoen.
Upon the entire record in the case, the undersigned Trial Examiner makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
National Die Casting Company, Lincolnwood, Illinois, is an Illinois corpora-
tion engaged in the manufacture and sale of diversified die casting products.
It annually buys materials valued at $100,000 which are received by it from points
without the State of Illinois. It annually sells finished products valued at about
$100,000 which are transported in commerce to points outside the State of Illinois.
The Respondent concedes that it is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
Chicago Amalgamated Local 758, International Union, Mine, Mill and Smelter
Workers is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issue
Contractual relations existed between the Respondent and the Union from
May 1946 to May 1949. OnFebruary 24, 1949, the Union notified the Respondent,
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in writing, that it desired revision of the current contract and asked that a dare
be arranged for negotiations. President Johnson ignored the request There-
a tter Business Manager Pinta of the Union telephoned to Johnson, again request-
ing a negotiating conference. Johnson declined, saying lie intended to close the
plant down and there would be, no sense in negotiating.' On April 14 Pinta
notified Johnson, by letter admittedly received, that since no agreement had
been reached on a new contract, the Union was terminating the existing agreement
as of May 18, the expiration date. A copy of this letter was sent to the U. S.
Mediation & Conciliation Service Johnson was called by this Service, and told,
according to his own testimony, that "the contract was coming to a termination
point and a date should be set to negotiate" He admitted, however, that he set
no date for such negotiation. Nor did he reply to any of the Union's letters.
The unrefuted facts show and the undersigned Trial Examiner finds that
although the Union made repeated efforts between February and April 1949, to
negotiate a new contract, the Respondent declined even to meet with the union
representative.' It is likewise concluded and found that by this conduct the
Respondent displayed its clear intent to cease dealing with the Union as the
representative of its employees and thereby expressed antipathy toward that
otganizatton.'
Johnson admitted receiving the telephone request from Pinta, but denied that he
declined to negotiate . He claimed that he told Pinta that as soon as he could "clear"
his mind he mould set a diite and that Punta thereupon agreed to call back "in two weeks,"
but "didn't call and nothing happened and that was the way it ended " The undersigned
Trial Examiner cannot credit either Johnson ' s version or his denial . His own story
is wholly implausible on its face . , Since he was the only one who would be likely to
know when his mind became "clear," it is plainly improbable that Pinta would have
agreed to sit idly by and call back in 2 weeks . Furthermore , circumstances described
by Johnson himself stamp his denial as unbelievable As noted above , Johnson admitted,
in effect , that he declined to set a date for negotiating when so requested by the U S.
Conciliation Service As will be noted elsewhere in this report , Johnson 's answer and
testimony are so contradictory and evasive as to deprive his testimony of trustworthiness
generally
The complaint does not allege , and the undeisigned Trial Examiner makes no finding
that the Respondent's refusal to negotiate was an unfair labor practice within the
meaning of the Act. At the hearing General Counsel specifically informed counsel for the
Respondent that such violation was not in issue In his brief General Counsel points
out that the issue was not raised in the complaint because at the time of its commission
the Union was not in compliance with Section 9 (f), (g), and (h) The evidence was
offered, he said , to show -"motive, purpose and attitude " On numerous occasions the
Boa iii ha, found that evidence imilail% prescribed is 'relevant as background material
for evaluating the character " of later conduct . ( El iltando , Inc, 92 NLRB 724, and
cases cited in footnote 2 therein )
'The record contains a great deal of contradictory testimony as to anti-Union remarks
made by Johnson and other management representatives to Pinta and members of the
shop committee Much of this contradictory testimony is such that the undersigned Trial
Examiner , not having seen the witnesses and their demeanor while testifying , is reluctant
to attempt its resolution . Nor does it appear necessary to resolve such conflicts in
testimony, since it would lead only to findings that anti-union ieniarks were or were not
made, and thus either would or would not add support to the above finding that Johnson's
conduct in refusing to negotiate expressed antipathy toward the Union and its leaders.
df such support were found, it would add in weight , but not in substance The Respondent,
clearly placed on notice as to the purpose of evidence offered as to negotiation efforts,
adduced no affirmative evidence to show that it made any attempt to continue or renew
its collective bargaining relationship with the Union or to show that it had any legitimate
season for not making such attempt After repeatedly evading a direct question by
General Counsel as to his willingness to negotiate with the Union during the period
in question Johnson finally said • "We were attempting-I imagine , that had the sales
picked up and had we had the amount of business , I imagine that thing would have
happened , yes, because v, e had a union in there prior to that "
NATIONAL DIE CASTING COMPANY 853
On April 28 the Respondent ceased production and closed clown all depart-
ments but one The complaint concedes that the layoffs occurring on that date
were for economic reasons. The sole issue is whether or not, in resuming
production and recalling its employees thereafter, the Respondent discriminated,
to discourage union activity, against certain union stewards and shop com-
mitteemen by failing to recall them when production resumed.
B The failure to recall
The pleadings and evidence agree that the following individuals ceased work
for the Respondent on April 28, 1949:
Peter Nardi George Fulk Ira Fulk
Eugene Parenti Naomi Gleistein Roy Tincher
Thomas Obermeyer Howard Sullivan
The complaint contends that these persons were and continue to be production
employees Johnson, in his answer, admitted that although they had been
they "ceased to be employees on April 28, 1949, at the time of the general shut
down of the plant" Johnson's explanation, if any, of this allegation was not
elicited at the hearing, either by his own counsel or by General Counsel. In
any event, all ceased work at the close of the working clay on April 28 There
is no evidence that any one of them was informed on that date, or at any later
(late, that lie or she was discharged and would not be reemployed So far as
the eight individuals were informed by management, it appears that all were
included in, and in no way exceptions to, the blanket layoff order posted by
Superintendent Wunderlich on April 25, which read:
Due to continued decrease in our sales, coupled with the inadvisability of
any further lay offs, it has been decided to shut down completely with the
close of business Thursday April 28th 1949 The tool room will be the only
department not effected by this order. As it is uncertain just how long this
will continue, employees will be contacted when they will again be needed.
Checks due the following week will be mailed to your home In order to
be sure that our records are correct, please write on the back of your time.
card this week the following information:
Naive
Address & Zone number
Apt. Number
Phone Number
It would thus appear that the superintendent desired that all persons laid
off should, consider themselves as continuing to be "employees," since he an-
nounced that "employees will be contacted when needed."
During the week of the general layoff, according to a summary of the Re-
spondent's payroll records placed in evidence by stipulation of the parties, there
were 71 production emplo.iees working. Superintendent Wunderlich testified
that operations were resumed during the latter part of June, although the same
summary shows that rehiring in some departments began in May.' By the
week ending July 31 there were 76 production employees on the payroll, more
than were working during the week of the general layoff. It is thus clear,
and the undersigned Trial Examiner finds, that by July 31, 1949, the Respond-
! In accordance with the April 25 notice the toolroom crew remained at work after
the general layoff. It appears also , from the superintendent ' s testimony , that some of
the guards and janitors were likewise retained.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's production force again equalled in number that which was employed at
the time of the shutdown.
There is no dispute as to the fact that none of the eight persons involved
herein has yet resumed work for the Respondent . It is General Counsel's con-
tention that seven of the eight have been discriminatorily denied recall , and that
as to the eighth , Howard Sullivan, recall was discriminatorily delayed beyond
a date he normally should have been offered employment.
As noted above , the answer claims that the eight individuals "ceased to be
employees on April 28."
On the other hand, the answer also denies that it failed to recall these "em-
ployees" for the reasons alleged by General Counsel . Without referring specifi-
cally to any one of the eight, it alleges generally that "when it began to resume
limited production , it recalled each former employee as it could employ, from time
to time, in its revised production schedules and when former employees did not
return for the type of job then available at the rate offered it was required to
resort to the open market to fill such jobs."
The Respondent adduced evidence tending to show that it did recall Howard
Sullivan, who declined reemployment , and attempted to recall Thomas Ober-
meyer , but could not locate him.
As to Sullivan , his own testimony establishes that he was offered reemploy-
ment but declined to accept it. He said the date of the recall had "slipped"
his mind, and then placed it vaguely as about August 20. He had been working
in the "cleaning and machining " department . According to the summary of
rehiring records, previously referred to, the first recall in this department was
made on May 25 and the April 28 employment level was not reached until July 31.
General Counsel offered no proof to show what date, if any, before July 31, he
believes Sullivan should have been recalled . Sullivan 's own testimony is so
uncertain that the undersigned Trial Examiner can make no finding as to pre-
cisely what date he was offered and declined reemployment . It is concluded and
found the evidence fails to support a finding that there was delay in recalling
Sullivan. Furthermore , according to Sullivan ' s own testimony , he held no office
after May 1948, a year before the general layoff. It will be recommended that
the complaint be dismissed as to Sullivan.
As to Obermeyer, the question first to be resolved is whether or not the
Respondent in fact made a reasonable effort to recall him, as the superintendent
and his foreman claimed. Wunderlich 's testimony on the point is confused. At
first he said he tried to reach him "by phone and I also believe there was a call
made at his last address ." He said he did not know the address and that "I did
not make the call myself ." He answered "Yes," however , to the next question :
"You mean you went over to his house?" He placed the visit as before July 31.
According to General Foreman Norbett Lindbloom , he "would have called him
if he could have found him." He said he went to some address , which he could
not recall , where he had previously called, sometime in the fall of 1948, and
then found only Obermeyer 's wife. On the final occasion , he said, he could find
no one, "or anyone who knew him ." No testimony of either Wunderlich or Lind-
bloom indicates that they made any attempt to reach Obermeyer by letter, or,
telegram , or in person, at the home address given by him as a witness, although
Lindbloon► admitted that he had previously seen "a card, more or less a hiring
card of his that gave that as an address." Even if Lindbloom had actually, as
he said, gone to an address where he had previously failed to find him, there is no
credible explanation in the record as to why no attempt was then made to reach
him at the address apparently on file in the Respondent 's records . In any event,
the original charge was filed October 3 , naming Obermeyer among others. That
the Respondent was promptly made aware of this charge is implicit in a statement
NATIONAL DIE CASTING COMPANY 855
of its counsel to the effect that he conferred with a Board agent "with respect
td the charges in this case " on October 10. There is no evidence that the Respond-
ent then or thereafter made any effort to reach Obermeyer through the Board, or
the Union , or made any claim that it had previously tried to reach him. Finally,
had a genuine effort been made to recall the employee , it is reasonable to believe
that the answer would have included an affirmative allegation to that effect
The undersigned Trial Examiner finds that no bona fide effort was made to recall
Obermeyer.
As to the seven employees who were not recalled , it is clear that General Coun-
sel's case must fail unless it is established that the Respondent knew or believed
that they were, as alleged in the complaint , "members of the Union ' s Shop Com-
mittee."
With respect to Naomi Gleistein , the undersigned Trial Examiner considers the
proof insufficient to establish either such knowledge or belief on the part of the Re-
spondent . Gleistein 's own testimony makes it plain that she held no office in the
Union, and never had held any . Apparently her only role was occasionally to
serve as a medium through whom the department steward sent or received mes-
sages from other girls . There is no evidence that management was aware of
this, and no evidence that she met with management as a member of the shop
committee . It will be recommended that the complaint be dismissed as to her.
As to the remaining six employees not recalled : Obermeyer , Parenti, Tincher,
Ira Fulk, George Fulk, and Nardi , both Johnson and Wunderlich , the former in
his sworn "admissions" and the latter in his testimony , admitted knowledge or
belief that each of them was a member of the union shop committee before and
at the time of the April layoff.
With respect to two of the six, Nardi and George Fulk, Wunderlich readily ad-
mitted, in effect, that they were not recalled because of their activities on behalf
of the Union on April 28 . Counsel for the Respondent , in his brief , argues at
considerable length about the no-strike clause in the contract which did not expire
until May 18. The argument is pointless in view of the fact that no credible evi-
dence was adduced to show that any strike occurred . The testimony of the Re-
spondent ' s own witnesses is so confused and contradictory that no finding that a
strike took place is possible . Wunderlich candidly admitted that there was no
strike, and said only that he believed "there was to be one." Johnson, on the
other hand , said : "There was a strike . As far as I can say, there is a strike."
He said he could not remember , however, whether it occurred on April 29, the
day after the plant shut down , or on the following Monday, May 2. It developed
that his claim of a strike was apparently based upon seeing "Pinta , Nardi, Fulk
and some others" standing on the street outside the plant on one or the other of
those two days. He admitted he saw no banners or placards , that they were
merely standing there talking to each other, and that he saw the group stop
no other employees. Yet upon these negative facts he declared : "They were
doing every effort to strike the plant ." The undersigned considers to be deter-
minative the testimony of Loring Schey, chief of police , also a witness for the
Respondent . He said that at Johnson 's request previously made he had his force
present at the plant on the mornings of both April 29 and May 2, and on both
dates "found no trouble or anybody around there."
There is evidence showing that after working hours, on April 28, and after
both had been laid off indefinitely according to Wunderlich ' s notice, George
Fulk and Nardi did attempt to get the toolroom employees to refuse to come
in the next day. Either Fulk or Nardi, according to a non-union toolroom
employee , told them that "Johnson is pulling a fast one, and it won 't be long, a
couple of weeks, or three weeks, before you guys get laid off ." In any event,
no one remained away from work because of their request, and there was no
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike. Since the request was made after working hours, it is plain that no
production was interfered with.
There is also some testimony that Nardi and Fulk were seen by foremen
talking to other employees on April 28. Whatever they were engaged in it is
plain that no issue was made of their conduct at the time, neither was warned
of discharge or discharged because of it, and both were paid for their time by
the Respondent in accordance with the regular pay schedule for stewards en-
gaged in union business. Finally, it is reasonable to believe that had the
Respondent actually decided, at any time, not to recall Fulk or Nardi solely
because of their attempt to have the toolroom employees stay out, that decision
would have been the basis of an affirmative allegation in the answer. No such
claim is there made. So far as the record shows, the issue was first raised
at the hearing, more than a year after the layoff.
The undersigned Trial Examiner is convinced and finds that there is no merit
in the Respondent's claim as to why it did not recall George Fulk and Nardi.
The Respondent offered various and sundry reasons for not recalling Tincher,
Parenti, and Ira Fulk.
As to Tincher, who had been working as one of three filers on April 28, Wunder-
lich and Lindbloom said that after resuming operations they needed only two
filers, and recalled the two with more seniority than Tincher. When his atten-
tion was called to the fact that company records showed that Tincher was also
a machine operator, Wunderlich admitted that he could not explain why he had
not been recalled in this capacity. Lindbloom, who testified later, when asked
why Tincher was not recalled as a machine operator, said "he wasn't especially
efficient, and [ had no knowledge that lie could perform the machine operations
that we wanted." Shortly thereafter, however, Lmdbloom said he did not know
Tincher was a machine operator. It follows that his previous statement that
as a machine operator Tinclier "wasn't especially efficient" was based upon no
readily ascertainable fact. In any event, Wunderlich's testimony makes clear
that by October the department had at least four more employees than on
April 28. In the absence of some credible explanation it must be presumed
that some of them were new employees There is no evidence that Tincher was
considered an unsatisfactory employee on or before April 28. The undersigned
Trial Examiner finds no merit in the reasons advanced by Lindbloom for not
recalling Tincher.
As to Parenti, who the superintendent admitted had always been a satisfactory
employee, Lindbloom said he did not recall him because "we had more capable
people than Mr. Parenti." Presumably this fact, if true, existed before the
layoff, yet there is no evidence that Parenti was ever laid off, or warned, for
inefficiency. He worked in the same department as Tincher which, as noted
above, by October had exceeded its April employment level. The undersigned
Trial Examiner finds no merit in the reason advanced by Lindbloom for failing
to recall Parenti.
As to Ira Faille, a polisher in the same department, Wunderlich at first said
lie was not recalled because lie was not "as versatile" as others, and then said, "I
believe his name was not brought up, as I recall it." Lindbloom said Fulk
was not "too adept." Payroll records, however, showed that Ira Fulk had
the highest total earnings of all employees iri his department for the week of
the layoff. Steve Edwards, head of the polishing department, gave equally
inconsistent testimony. He said Fulk was both "careless" and a "good worker."
He said he was not "lazy" but "if you didn't watch him, you couldn't depend
upon him." It is unreasonable to believe that the Respondent paid the highest
wages to "careless" workers upon whom it could not depend. He had ap-
NATIONAL DIE CASTING COMPANY 857
parently been a wholly satisfactory, worker from December 1946 until the
layoff. No credible reason was advanced for not recalling him.
In short, the Respondent advanced no credible, plausible, or meritorious
reasons for not reernploying Obermeyer, George and Ira Fulk, Parenti, Tincher,
and Nardi. Even if, arguendo, one or more of these employees had been less
efficient than others, all had been retained until the April layoff. It is reason-
able to believe that they were at least as efficient as new and untried employees
hired after production resumed. By October 1949 the production force had
been increased to 131, and at the time of the hearing was about 80.
All six of these individuals met as a committee with Wunderlich and Lind-
bloom during the week preceding the layoff, at various times and particularly
on April 28 There is dispute as to the subject matter discussed at the last
meeting, the Respondent's witnesses testifying that "it seemed to be primarily
concerned with stewards and the committee working after we shut down,"'
and the committeemen claiming that they also demanded vacation pay and
recall from the layoff on a seniority basis. Resolution of the conflicting testi-
mony appears to be unnecessary. From all their testimony it is inferred that
the arguments were acrimonious and extended, and that no final agreement
was reached!
In resolving the major issue in this case, it is necessary only to consider the
testimony of Wunderlich and Lindbloom, who testified in effect, that the shop
committee insisted vigorously, from April 25 to 28, that the contract should
be so interpreted as to permit stewards and committeemen, instead of foremen,
to work during the layoff. Whether merit was present in the Union's con-
tention or not, urging it clearly was a matter of collective bargaining and a
protected activity. It is plain from their testimony that both Wunderlich and
Lindbloom resented the committee's activities.'
Johnson, head of the concern, had previously and continuously since Feb-
ruary made it clear that he had no intention of renewing the contract, or of
negotiating toward a new one Ignoring the Union implied that he would not
deal with or recognize it after the contract's expiration. Wunderlich and
Lindbloom, the undersigned Trial Examiner is convinced by the evidence, merely
patterned their function according to the design already defined by Johnson.
Theirs was the power of ridding the plant of leaders of the Union which Johnson
no longer chose to recognize The April 28 layoff offered opportunity and a
pretext. It is reasonably interred from the record as a whole, and the under-
signed Trial Examiner concludes and finds, that by April 2S management had
decided that upon resumption of production these leaders would not be recalled.
All six individuals were, in effect, constructively discharged as of April 28, 1949.
Their discharges were discriminatory, for the purpose of discouraging member-
ship in and activity on behalf of the Union, and thereby interfered with, re-
strained and coerced employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in Section III, above , occurring
in connection with its operations described in Section I, above, have a close,
5 The quotation is from Wunderlich's testimony.
6 Wunderlich described the April 28 meeting as "in kind of a general 'hubub' on the
whole general thing "
4 Lindbloom said , " I had nothing to do with placing that type of person on the com-
mittee ," referring to the committee members generally . Wunderlich testified that he
considered one remark of Pinta to be "a pretty definite threat of a strike ," and he left
the meeting of April 28 to lay "the matter in front" of Johnson
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent had engaged in unfair labor practices, the
undersigned Trial Examiner will recommend that it cease and desist therefrom
and take certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Peter Nardi, George Fulk, Ira Fulk, Eugene Pa-
rent!, Roy Tincher, and Thomas Obermeyer. It will be recommended that the
Respondent offer to them immediate and full reinstatement to their former or
substantially equivalent positions' and make them whole for any loss of pay
they may have suffered as a result of the discrimination against them by pay-
ment to each of a sum of money equal to that which he would have earned as
wages from the date of discrimination, as found, to the date of the offer of
reinstatement. Loss of pay shall be computed on the basis of each separate
calendar quarter or portion thereof during the period from the respondent's
discriminatory action to the date of a proper offer of reinstatement. The
quarterly periods, herein called quarters, shall begin with the first day of Jan-
uary, April, July, and October. Loss of pay shall be determined by deducting
from a sum equal to that which each would normally have earned for each
quarter or portion thereof, his net earnings,' if any, in other employment
during that period. Earnings in one particular quarter shall have no effect
upon the backpay liability for any other quarter.1° In accordance with the
Woolworth decision, it will be recommended that the Respondent, upon reason-
able request, make available to the Board and its agents all records pertinent to
an analysis of the amount due as back pay.
The unfair labor practices found reveal on the part of the Respondent such a
fundamental antipathy to the objectives of the Act as to justify an inference that
the commission of other unfair labor practices may be anticipated. The preven-
tive purposes of the Act may be frustrated unless the Respondent is required to
take some affirmative action to dispel the threat. It will be recommended, there-
fore, that the Respondent cease and desist from in any manner interfering with,
restraining, and coercing its employees in the exercise of rights guaranteed by the
Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Chicago Amalgamated Local 859, International Union, Mine, Mill and
Smelter Workers is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Peter
Nardi, George Fulk, Ira Fulk, Eugene Parente, Roy Tincher, and Thomas Ober-
meyer, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
8 The Chase National Bank of the City of New York, Ban Juan, Puerto Rico Branch,
65 NLRB 827.
' Crossett Lumber Company, 8 NLRB 440 , 497-8.
11 F. W. Woolworth Company, 90 NLRB 289.
SOUTHWESTERN ELECTRIC SERVICE COMPANY 859
3. By such discrimination and by interfering with, restraining, and coercing
employees -in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not discriminated as to the hire and tenure of employ-
ment of Howard Sullivan and Naomi Gleistein within the meaning of the Act.
[Recommended Order omitted from publication in this volume.]
SOUTHWESTERN ELECTRIC SERVICE COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 790. Case No. 16-
CA-307. May 08, 1951
Decision and Order
On March 9, 1951, Trial Examiner Lee J. Best issued his Intermedi-
ate Report in the above-entitled proceeding finding that the Re-
spondent had engaged in and was engaging -in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth,in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed? The Board has considered the Intermediate Report, the
Respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.3
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act as amended, the National Labor
IPursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairm.an Herzog and Members Houston and Reynolds].
We find no merit In the Respondent 's contention that the Trial Examiner erroneously
sustained an objection by the General Counsel to the Respondent 's introduction of
evidence to prove that the unit found by the Board was inappropriate , and that the
election conducted by the Board was not fairly held. These issues were fully litigated
and considered by the Board in Southwestern Electric Service Compan , 89 NLRB 114,
90 NLRB 457 , and 91 NLRB No. 19, and could properly not be relitigated in this
complaint proceeding . Clark Shoe Company, 88 NLRB 989; Pittsburgh Plate Glass Co. v.
N. L. R. B., 313 U . S. 146 ( 1941 ) ; N. L. R. B. v. West Kentucky Coal Company, 152 F.
2d 198 ( C. A. 6), certiorari dented 828 U . S. 866.
$ As appears In section 1 (a) of our Order , we have adopted the description of the
unit which was set forth In our Decision and Direction of Election ( 89 NLRB 114),
rather than that employed In the unit finding in the Intermediate Report. The difference
is one of phraseology , however, and involves no variation in the unit found appropriate.
94 NLRB No. 131.