Seaboard Diecasting Corp.

National Labor Relations Board - Board Decisions

Jun 7, 1962

137 N.L.R.B. 536 (N.L.R.B. 1962)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization , to form- labor
organizations , to join or assist the above-named Union , or any other-labor
organization , to bargain collectively , through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any or all
such activities.
WE WILL offer Gerald Pashek - and Erwin Just immediate and full reinstate-
ment to their former or substantially equivalent jobs, without prejudice to any
rights and privileges previously enjoyed by them , and we will make them whole
for any loss of wages suffered as a result of their discharge , transfer, or
demotion.
All our employees are free to become, remain , or refrain from becoming mem-
bers of the above-named Union or any other labor organization.
MERCHANTS POLICE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ' ( Title)
This notice must remain. posted for 60 days from the date thereof, and must not be
altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176
West Adams Street , Chicago, Illinois, Telephone Number , Central 6-9660, if'they
have any question concerning this notice or compliance with its provisions.
Seaboard Diecasting Corporation and John Fitzgerald. Case
No. 2-CA-8101. June 7, 1962
DECISION AND ORDER
On February 28, 1962, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no'prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations insofar as consistent with' the following
modifications :
1. We agree with the Trial Examiner's finding that the Respondent
refused to reinstate Fitzgerald to the position of molder because it
anticipated that Fitzgerald would regain his union status as shop
I Pursuant to the provisions of Section 3(b)' of the Act , the Board has delegated its
powers in connection with this case to a. three -member panel [Chairman McCulloch and
Members Rodgers and Leedom].
137 NLRB No. 60.
SEABOARD DIECASTING CORPORATION 537
steward 2 We rely particularly on the fact that Fitzgerald was an
active and conscientious shop steward and that the Respondent ob-
jected to him and regarded him as a troublemaker because of his ef-
forts, as union steward, to protect the rights of the employees. In-
deed, Respondent asked Union Representative McDermott on several
occasions to replace Fitzgerald with a union steward who would not
be as troublesome as Fitzgerald was.
2. We also agree with the Trial Examiner that the Respondent's
conduct in closing down its plant on August 4 constituted an unlawful
lockout of its employees. On several occasions, the Respondent had
told its employees that they would be better off without the Union,
and had threatened that there would be a layoff or shutdown of the
plant if former Union Steward Fitzgerald were reinstated. When
McDermott advised the Respondent that the Union would not press
for Fitzgerald's reinstatement, the Respondent reopened the plant.
Accordingly, it is clear, and we find, that the Respondent closed its
plant and locked out its employees in violation of Section 8(a) (3)
and (1) of the Act.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modifications, in section 2(a) and in the Appendix, that the
reinstatement of Fitzgerald should be to his former or substantially
equivalent position "as a molder."
2In the section of the Intermediate Report entitled "The Remedy," the Trial Examiner
inadvertently stated that the Respondent discharged Fitzgerald.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amendment thereto filed respectively on August 15 and
16, 1961, by John Fitzgerald, General Counsel of the National Labor Relations
Board, herein referred to as the Board, by the Regional Director of the Board's
Second Region, issued a complaint on September 27, 1961, and an amendment
thereto on October 18, 1961, against Seaboard Diecasting Corporation, Respondent
herein, alleging violations of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its
duly filed answer Respondent, while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice. Thereafter Respondent filed
a motion for a bill of particulars which in due course was denied by Trial Examiner
E. Don Wilson.
Pursuant to notice, a hearing was held before Thomas F. Maher, the duly desig-
nated Trial Examiner, at New York, New York, on November 7 and 8, 1961. All
parties were represented and were afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument, to file briefs with me. Briefs were filed
by the General Counsel and Respondent on December 8 and 12, 1961, respectively.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of the witnesses,) I make the following:
'Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based , at least in part, upon his de-
meanor as I observed it at the time the testimony was given . Cf. Retail Clerks Inter-
national Association, AFL-CIO, Local 219 ( National Food Stores, Inc.), 134 NLRB 1680,
footnote 3; Bryan Brothers Packing Company , 129 NLRB 285 . To the extent that I indi-
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Seaboard Diecasting Corporation is a New York corporation with its plant, offices,
and principal place of business located at West Islip, Long Island, New York, where
it is engaged in the manufacture, sale, and distribution of dies, castings, and related
products. In the course and conduct of its operations Respondent annually manu-
factured, sold, and distributed at and from its West Islip plant products valued in
excess of $85,000, of which products valued at $30,000 were shipped in interstate
commerce directly to States of the United States other than the State of New York
Similarly, during the same annual period Respondent furnished aforesaid products
valued in excess of $50,000 to McPhilben Manufacturing Co, Brooklyn, New York,
an enterprise which annually produces goods valued in excess of $50,000, and ships
them to States outside the State of New York.
The foregoing facts alleged in the complaint were admitted by Respondent at
the hearing and I accordingly find it to be engaged in commerce within the meaning
of the Act.
It. THE LABOR ORGANIZATION INVOLVED
District 50, United Mine Workers of America, Local 13908, the Union herein,
which maintains contractual relations with the Respondent and of which John Fitz-
gerald, the Charging Party, is a member, is conceded to be a labor organization
within the meaning of the Act, and I so find.
III THE ISSUES
1. The absence of proof that Respondent promoted Fitzgerald to foreman for the
purpose of discharging him.
2. The discriminatory refusal of Respondent to honor its obligation to reinstate
Fitzgerald to his rank-and-file position.
3. Threats to close the plant as evidence of employee interference, restraint, and
coercion.
4. The discriminatory nature of the employees' lockout
IV THE UNFAIR LABOR PRACTICES
A. Sequence of events
For some time prior to May 1961, John Fitzgerald, a concededly competent molder
in Respondent's plant, was shop steward for the Union and from all accounts did
a very effective job in representing the men and processing their grievances
Early in May 1961, Respondent's treasurer, Ernest Riedel, offered Fitzgerald a
promotion to shop foreman to fill a vacancy that had existed for the previous 2
months. Fitzgerald's initial reaction was negative However, after a subsequent
conference with Respondent's president, Larry Schiffman, during which he was of-
fered a weekly salary of $150, Fitzgerald accepted the promotion upon condition
that Respondent would negotiate with him an employment contract. Such a con-
tract was executed on May 17, 1961, by Fitzgerald and Treasurer Riedel, in behalf
of Respondent. It provided for the agreed-upon salary, 2 years' tenure, and a fur-
ther agreement that "in the event that either party for any reason whatsoever desires
to terminate this agreement, then in that event [Fitzgerald] shall revert to the position
of Journeyman on permanent molds without any loss of seniority and shall be em-
ployed at the then current union scale of wages."
Fitzgerald performed his duties as foreman with apparent satisfaction through-
out May, June, and early July 1961 Indeed Respondent's officials so testified.
indicating that not until July 25 did they have any cause for complaint. On that
day, after arriving 1 hour eariv for work. Fitzgerald worked an hour and departed
for Brooklyn, approximately 40 miles distant from West Islip, to appear in court
in response to a traffic violation summons. Fitzgerald sought no one's permission
and the only notice to his suneriors of this absence from his job was the word he left
prior to departing 2 When his business in court concluded at 2 p.m., according to
cate that I do not rely upon or reject in part or entirely the testimony of any given
witness, It is my intent thereby to indicate that such pact or whole of the testimony, es
the case may be, is discredited by me Jack8on Maintenance Corporation, 126 NLRB 115,
footnote 1, enfd. 283 F. 2d 569 (C.A. 2)
a Fitzgerald claims he told Treasurer Riedel the night before. Riedel, whom I credit
generally, disclaims any knowledge of happenings at the plant after July 15 President
SEABOARD DIECASTING CORPORATION 539
Fitzgerald , he did not return to the plant . Instead he reported at the regular hour
on the following morning. On that day, Wednesday, July 26, the men complained
to Fitzgerald of the excessive heat in the foundry , it also being a very hot summer
day outside. Fitzgerald interceded in their behalf with President Schiffman. After
some reluctance, Schiffman agreed that the men could go home, but insisted that all,
not merely a group of them , should go. All but two of the rank -and-file employees,
according to Fitzgerald, went home; Olivieri and another identified only as Ben,
remained at work. Fitzgerald also left for home.
On the following morning President Schiffman called Fitzgerald to his office and,
in the presence of Vice President Karaktin , reprimanded him for his recent short-
comings, referring specifically to the traffic court incident and to his early departure
on the previous afternoon. After some heated conversation in which Fitzgerald's
talents as a foreman were brought into serious question, Fitzgerald states that he
said, "I 'm sorry you are dissatisfied . If you are dissatisfied I'll go back as a perma-
nent molder ." Karaktin's version of this conversation is substantially the same;
thus he quotes Fitzgerald as saying to Schiffman, "Larry, we don't see eye to eye
and I don' think we will ever get along together. So I am quitting." s In any
event, it is clear from Fitzgerald 's and Karaktin 's testimony that Respondent neither
discharged Fitzgerald nor sought to remove him from his foremanship. On the con-
trary, it is undisputed that Fitzgerald quit his position of foreman on that date,
July 27.
After Fitzgerald 's announcement at the conference that he was quitting his job,
Vice President Karaktin left and Fitzgerald and Schiffman continued their conver-
sation , with Fitzgerald insisting that he be returned at once to his former position
as molder which he claimed by virtue of his contract with Respondent (supra).
Schiffman was reluctant to permit Fitzgerald to report to work and suggested that
he take some time off, with pay, until Respondent had cleared the matter with the
Union.
It is evident from all the testimony , including Schiffman 's and Fitzgerald 's, neither
of which I credit generally, that Respondent did not want Fitzgerald back in his
rank-and-file job as molder , or indeed as anything else. Schiffman , by his own ad-
mission, told Fitzgerald he could not come back until he, Schiffman, had cleared it
with Union Representative McDermott. On the same day McDermott, having been
notified of the Fitzgerald incident, spoke to Schiffman on the telephone . Schiffman
appears only to have asked McDermott to come out to the plant and talk with him,
saying nothing about Fitzgerald's seniority. McDermott did not get to the plant on
the following day, Friday, July 28, due to the pressure of other business. But when
he did get there on the following Monday, July 31, he never did see Schiffman, find-
ing it necessary to meet with the men concerning Schiffman 's recent statements to a
number of them .4 Thus, for example , it appears that immediately following Fitz-
gerald's conference with Schiffman wherein he quit the foremanship and asked to
be returned as a molder , Schiffman spoke to employee Dickson, a union committee-
man, on Friday, July 28, in the presence of employee Guiliano, and told him that
if the men forced him to take Fitzgerald back to work he would close the plant
down.5
Fitzgerald returned to the plant on the several following days seeking to start as
a molder, but on each occasion President Schiffman indicated his unwillingness to
take him back because of the seniority conflicts that would arise and until he had
cleared the matter with the Union. On Tuesday, August 1, Fitzgerald actually ap-
peared in working clothes prepared to start, and withdrew his timecard from the
rack. Schiffman called Fitzgerald to the office and spoke to him in the presence of
Vice President Karaktin and Shop Steward Katonica. Fitzgerald protested that he
had already been kept from work too long; and in the course of the argument with
him Schiffman told Fitzgerald. "Don't you tell the boss when you are coming to work
around here " 6 Whereupon Schiffman asked Katonica to get Union Representative
Schiffman, whom I do not credit generally, stated he found a note from Fitzgerald on
his desk on the morning of the absence stating Fitzgerald 's expected whereabouts. In
any event Respondent was aware of Fitzgerald ' s departure and his destination
3I do not credit Schiffman 's account of this event that Fitzgerald merely said , "I quit"
'McDermott's credited testimony.
5 The credited testimony of employee Dickson Employee Guiliano was not questioned
concerning this incident He was questioned with respect to a similar conversation which
he witnessed a week later between Schiffman and employee Katonica in which Schiffman
repeated his earlier intent to close the plant if he had to take Fitzgerald back ( infra,
footnote 8)
g The credited testimony of Katonica.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDermott on the telephone and then dismissed Katonica from the conference. In
the course of the telephone conversation Schiffman told McDermott that Fitzgerald
would not be back until he, Schiffman, had talked to the union representative about
it.7 In this respect it is to be noted that the men in the plant had been alerted by
reports that had come to them that Schiffman would shut down the plant rather than
take Fitzgerald back, and the contradicting report that if they took him back at all
the Company would then lay off 12 or 13 men to reach him for layoff on the basis
of seniority. As a consequence of the men's concern over this the Union definitely
recognized an urgency in the matter not, according to McDermott, insofar as a
stand was to be taken on Fitzgerald's difficulties, but specifically because of Re-
spondent's threat to shut down the plant. In fact, the Union has at all times in-
sisted that it takes no position in the Fitzgerald case, and in this respect I so find.
On Tuesday, Wednesday, and Thursday, August 1, 2, and 3, McDermott spent a
considerable amount of time at the plant meeting with the employees and discussing
grievances with them generally. On Wednesday McDermott was present at a meet-
ing of employees called by Schiffman At this meeting Schiffman told the men that
he did not want Fitzgerald back, that he was a thorn in their side-a troublemaker.
"He threatened there would be a layoff, wherever he was on the seniority list, or
he would close down the plant, words to that effect. He tried to point out to the
men that Fitzgerald was hurting them.8 Schiffman thereafter reiterated his position
on Fitzgerald in private conversations with employees Dickson, Guiliano, and
Katonica, as credibly testified to by each.
During this period Fitzgerald frequently came to the plant in the company of
McDermott until the police, at Schiffman's request, ordered him off the premises as
a trespasser. Fitzgerald did not thereafter return until negotiations were com-
menced, as will be hereafter discussed. McDermott, functioning in his capacity of
union delegate, was never excluded from the premises.
At this time, admittedly because of the turmoil in the plant and at the particular
urging of Vice President Karaktin, Schiffman decided to shut down the plant and go
out of business. Accordingly, at the close of work on Thursday, August 3, the men
were assembled at the timeclock and were informed that as of that time Seaboard
Diecasting was out of business, and that the men would be paid for the following
day. Karaktin concedes that the men may well have been told that this action was
being taken "because of all the trouble that's been going on," but he denies that they
were told that it was because of Fitzgerald. On this same day, however, and earlier,
Schiffman had told employees Dickson and Guiliano that he would close the plant
down rather than take Fitzgerald back.9
The shop was closed the following day but the men nevertheless appeared and
congregated in groups. Schiffman and Katonica were present also, protesting among
the men that union representatives had that morning countermanded company in-
structions not to light up the furnaces. Schiffman, in the course of his heated re-
marks concerning Union Representative McDermott, told the men that they would
be better off without the Union.
Negotiations between Schiffman and McDermott began immediately thereafter
in an effort to return the men to their jobs. During the course of these negotiations,
which extended into the weekend, Schiffman was insistent that he would not reopen
the plant if it meant taking Fitzgerald back, and McDermott, insisting that the men
be returned to work, refused to take any position whatever on Fitzgerald and left
the matter to him and Respondent. It was finally agreed that Fitzgerald would come
into the office on Monday, August 7, and that he and Schiffman would try to work
something out; and that, in any event, the shop would be opened on that date and the
men would return Work resumed on that date. No satisfactory arrangements ever
appear to have been worked out with Fitzgerald and he has not since been employed
by Respondent.
B. Analysis and conclusions
1. The legal status of Fitzgerald's tenure as foreman
Upon credible evidence I have found that Respondent promoted John Fitzgerald
to foreman because he had exhibited talents that were justified by his successful han-
dling of the job, at least until the final week. In so finding I reject the General Coun-
sel's suggestion that he was promoted for the discriminatory purpose of thereafter
being fired. Apart from the obvious fact that Respondent never did fire him, con-
7 The credited testimony of McDermott substantiated by Fitzgerald who overheard the
conversation and testified concerning it
8 The credited testimony of McDermott, corroborated by Katonica
0 The credited testimony of Dickson and Guiliano. Cf. footnote 5, supra
SEABOARD DIECASTING CORPORATION 541
structively or otherwise (Fitzgerald having admittedly quit for his old job), reason
and reality negate General Counsel's position. In the first place it is unrealistic for
a responsible businessman to turn over the operational authority of his plant to a
man whom he plans to be rid of. It occurs to me that anyone so devious as to plan
such a reprisal could plan one with less business risk. Secondly, it cannot be in-
ferred, as General Counsel would have me infer, that because an employee is active
and highly effective in the Union, the shop steward in this case, such an employee's
promotion to management is thereby foreclosed. Indeed such an inference, if I
were to make it, would actually suggest that Fitzgerald, were he not promoted, was
actually being deprived of his promotion because he was vigorous in behalf of the
Union-an unlawful action in itself. I am not disposed to meddle with such a
two-edged sword.
In concluding as I have, I am aware of three items of testimony that suggest a
discriminatory motive on President Schiffman's part in promoting Fitzgerald. Thus
when confronted with Union Representative McDermott's suggestion that Fitzgerald
was promoted to get him out of the unit Schiffman shrugged his shoulders and said,
"You know me." And again McDermott's quotation of a private conversation with
Schiffman when the plant was shut down, with Schiffman saying, "You know why
I made him a foreman. I made him a foreman to get rid of him." And finally,
Shop Steward Katonica's quotation of Schiffman on that same occasion, saying, "The
only reason he hired Fitzgerald was to get him out of the Union so he could fire him."
I am not prepared to accept Schiffman's shrugged shoulders and his statement
"you know me" to be an admission of guilt, for this is the sort of ambiguity that the
Board consistently refuses to rely upon.10 Furthermore, this and the other quotation
by McDermott was the testimony of a witness whom I observed to be garrulous, as
the length of his answers to questions in the record illustrates. While I credit him
generally I cannot and do not credit these particular comments. Observing him as
I did I am persuaded that the statements in question, and numerous others which
I do not rely upon, were conceived in verbosity and exaggeration, and do not meet
the test of credible evidence." Nor, upon my observation of Katonica as he testified
both on direct and cross-examination to the statement noted above, do I credit his
remarks And indeed were I to credit them, or McDermott's testimony on the
subject, I could not use them, standing alone, to establish the otherwise unestablished
motivation for conduct occurring 3 months previous. I would, in fact be merely
speculating that Respondent was planning an alleged discharge that never actually
occurred. Such a speculation is no substitute for legitimate inference.
In conclusion, I find, therefore, that Fitzgerald was not promoted to foreman for
the discriminatory purpose of thereafter being discharged. I so conclude not only
because the whole record does not support such a finding as to the promotion, but for
the more basic reason that there is nothing in the record to suggest a discharge,
or to rebut Fitzgerald's own testimony that he was not discharged but actually
quit to resume his old job. Nor is there anything in the record to suggest that the
circumstances leading to Fitzgerald's decision to quit, i e., the reprimand for his
absences, was contrived or was otherwise intended to create what might possibly be
viewed as a "constructive discharge." Fitzgerald's own admission that it was he who
initiated the termination precludes such a consideration.
Fitzgerald's admission likewise precludes a finding that his voluntary termination as
foreman constituted, in and of itself, a discrimination independent of his earlier
alleged discriminatory promotion.
Accordingly, I would dismiss so much of the complaint as alleges that Fitzgerald's
promotion to and subsequent termination from the position of foreman was a
violation of Section 8 (a) (1) and (3) of the Act.
2. The discriminatory refusal to reinstate Fitzgerald
Respondent's refusal to return Fitzgerald to his former job of molder presents
a different proposition By its contract Respondent was obligated to return Fitzgerald
to the job without loss of seniority. And by operation of that contract his status
as an employee, suspended though it may have been while he was employed as fore-
man, was regained.12 Thus it refused to honor its contractual obligation and restore
Fitzgerald to the job it had promised him. When it did so for the stated reason that
10Distiict 65. Retail, Wholesale and Department Store Union, AFL-CIO (I. Posner,
Inc ), 133 NLRB 1555; Building and Construction Trades Council of Tampa and Vicinity,
at at. (Tampa Sand and Material Co.), 132 NLRB 1564.
11 Glass-Tite Industries, Inc, 133 NLRB 1287, footnote 1
19 Cf. N.L.R B v E.A. Laboratories, Inc, 188 F. 2d 885 (C A 2), cert denied 342 U SF
871 ; N L R B. v Roure-Dupont Manufacturing, Inc., 199 F. 2d 631, 633 (CA 2).
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fitzgerald was a troublemaker with whom they objected dealing as a shop steward,
Respondent did so implicitly because of the union status of steward which it
anticipated Fitzgerald would regain when he took on his new job . 13 Schiffman's
statements to the men have no other interpretation.
Nor may Respondent take comfort in the defense raised at the hearing that it would
be precluded from returning Fitzgerald to his job as molder because of seniority
conflicts with other employees . Respondent's officials should certainly have been
aware that no such conflicts would exist , not only because there was provision in
the contract between the Union and Respondent to protect against loss in seniority
under such circumstances , but indeed in the very contract of reemployment between
Fitzgerald and Respondent it was specifically stated that Fitzgerald could return to
his old job "without loss of seniority " ( supra ). Respondent 's excuse for opposing
Fitzgerald 's return for seniority reasons are thus without substance.
Accordingly I conclude and find that by its consistent refusal to reinstate John
Fitzgerald to his job as molder, for reasons which are proscribed by the Act, Re-
spondent thereby discriminated against him in violation of Section 8(a) (3) and (1)
of the Act.
3. Interference , restraint , and coercion of the employees
Credible evidence referred to earlier in this report establishes that Respondent
adamantly insisted that Fitzgerald be excluded from the job to which he was entitled
by contract ; that its officers frequently exhorted employees that they not make an issue
of Fitzgerald 's return; that they repeatedly stated that the Union would do the men
no good ; and finally that they threatened to close the plant and subsequently did close
it because the men insisted upon Fitzgerald 's return to work . These actions of Re-
spondent , individually and as a pattern of total conduct, were clearly calculated to
influence the employees . Such conduct has consistently been held by the Board to
constitute interference , restraint , and coercion of employees in violation of Section
8 (a)( 1 ) of the Act, and I so find with respect to Respondent 's conduct here.
4. The discriminatory lockout
Moreover , Respondent , by closing down the plant on August 4, thereby deprived its
employees of work on that day and on the following Saturday , August 5,14 because
the union representative had been checking on operations in the plant and because
the employees continued to insist upon the return of John Fitzgerald to his job.
Citation of authority is unnecessary to establish such conduct as a lockout which
when so motivated constitutes discrimination in regard to tenure of employment for
the purpose of discouraging membership in the Union. I accordingly find that Re-
spondent has, by thus locking out its employees , violated Section 8(a) (3) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section IV, above, occurring in connection
with the operations of the Company described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Since it has been found that Respondent , by discharging John Fitzgerald, and
by locking out its other employees , discriminated against them in violation of Section
8(a)(3) of the Act and has otherwise interfered with, restrained , and coerced its
employees in violation of Section 8(a)(1) of the Act, I shall recommend that Re-
spondent cease and desist therefrom and from infringing in any manner upon the
rights of employees guaranteed in Section 7 of the Act . 15 I shall recommend that
Respondent offer to the aforementioned employees immediate and full reinstatement
to their former or substantially equivalent positions , 16 without prejudice to their
seniority or other rights and privileges . I shall also recommend that Respondent
make whole each of the aforementioned employees for any loss of earnings they may
have suffered because of the discrimination against them , including such right as they
may have had to earn overtime on the weekend during which the Respondent 's lock-
13 N.L R B v. Roure Dupou.t 1ramu facturing, Inc, supra
14 There is credible testimony in the record that employees had In the past worked on
Satutday . There is no indication whether this was overtime or not.
15 N.L.R B v Lamar Creamery Company, 246 F. 2d 8 ( CA. 5).
10 The Chase National Bank of the City of New York, San Juan, Puei to Rico , Branch,
65 NLRB 827
SEABOARD DIECASTING CORPORATION 543
out was effective, with backpay computed in the customary manner.17 I shall further
recommend that the Board order Respondent to preserve and, upon request, make
available to the Board payroll and other records to facilitate the checking of the
amount of backpay due and the rights of employment.
Upon the basis of the above findings of fact, and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the
Act and its operations occur in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within .the meaning of Section 2(5) of the
Act By discriminating in regard to the tenure of employment of John Fitzgerald
and the employees of Respondent's plant whom it locked out, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By the foregoing conduct, and by threatening to close the plant if the employees
insisted that Fitzgerald be returned to work, and by telling its employees that the
Union would do them no good, Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights guaranteed them by Section 7
of the Act, and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (l) of the Act
4. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Seaboard
Diecasting Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District 50, United Mine Workers of America,
Local 13908, by discharging or in any other manner discriminating against em-
ployees in regard to their hire or tenure of employment, or any term or condition
of employment.
(b) Threatening its employees that it will close its plant if the employees insist
upon the hire of any individual employee, and advising the employees that their
membership in the Union will do them no good.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and 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 employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2 Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer John Fitzgerald immediate and full reinstatement to his former or
substantially equivalent position.
(b) Make whole John Fitzgerald and any of its employees whom it locked out
on Friday, August 4, 1961, in the manner set forth in the section entitled "The
Remedy "
(c) Preserve and, 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 records necessary for the deter-
mination of the amount of backpay due and the right of reinstatement under this
Recommended Order.
(d) Post at its West Islip, Long Island, New York, plant, copies of the notice
attached hereto marked "Appendix." 18 Copies of the said notice, to be furnished
- F W Woolworth Company, 90 NLRB 289
is In the event that this Recommended Order be adopted by the Board, the e ords
"A Decision and Order" shall he substituted for the words "The Recommendations of a
Trial Examiner" In the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director of the Second Region , shall, after being duly signed by
the Respondent , be posted immediately upon receipt thereof , and be maintained
for a period of 60 consecutive days thereafter , in conspicuous places, including all
places where notices to members are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered , defaced, or covered by any
other material.
(e) Notify the Regional Director for the Second Region , in writing , within 20
days from the receipt of the Trial Examiner's Intermediate Report , what steps the
Respondent has taken to comply therewith.19
19 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in District 50, United Mine Workers
of America, Local 13908, by discharging or discriminating in regard to their
hire and tenure of employment or any term or condition of employment of
any of our employees.
WE WILL NOT close our plant or threaten to close it in reprisal for our
employees' concerted action to obtain the reinstatement of John Fitzgerald or
any other employee or applicant for employment.
WE WILL NOT advise our employees that the aforementioned union will do
them no good.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right of self-organization, to form labor
organizations, to join or assist the above-named Union, or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities, except as authorized
in Section 8(a) (3) of the Act.
WE WILL offer John Fitzgerald reinstatement to his former or equivalent job.
WE WILL make whole John Fitzgerald and those employees whom we locked
out on Friday, August 4, 1961.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members in good standing of District 50, United Mine Workers of
America, Local 13908.
SEABOARD DIECASTINO CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 745
Fifth Avenue, New York, New York, Telephone Number Plaza 1-5500, if they
have any question concerning this notice or compliance with its provisions.
Gulf Oil Corporation and Warren Petroleum Corporation and
International Union of Operating Engineers , AFL-CIO, Local
826. Cases Nos. 16-RC-3063 and 16-RC-3064. June 7, 1963
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
137 NLRB No. 62.