Superior Graphite Co.

National Labor Relations Board - Board Decisions

Dec 1, 1961

134 N.L.R.B. 913 (N.L.R.B. 1961)

SUPERIOR GRAPHITE COMPANY 913
All drivers, helpers, and warehousemen employed by the Employer
at all of its warehouses throughout the Commonwealth of Puerto
Rico, including the janitor 5 but excluding route salesmen, special
salesmen, former merchandisers, all other sales personnel, office cleri-
cal employees, professional employees, guards, and supervisors as de-
fined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS, dissenting :
As indicated in the majority opinion the duties of the driver-
salesmen in question have not changed substantially since the hearing
in Cases Nos. 24-RC-1410 and 24-RC-1415, involving the same opera-
tions of the Employer. The Board decided in those cases that the
driver-salesmen should be included in a unit of the Employer's pro-
duction and maintenance employees. As the same employees are in-
volved herein, I would adhere to the Board's prior determination of
the appropriate unit. The majority's departure from the previously
approved unit would seem to lend controlling weight to extent of
organization factors.
5 As the janitor was included in the warehouse unit previously found appropriate, and
no persuasive reason is advanced at this time for a contrary disposition , lie is included
herein.
Superior Graphite Company and Oil, Chemical and Atomic
Workers International Union , AFL-CIO. Cases Nos. 13-CA-
4093 and 13-CA-4160. December 1, 1961
DECISION AND ORDER
On September 15, 1961, Trial Examiner Charles W. Schneider is-
sued his Intermediate Report herein, -finding that the Respondent
engaged in unfair labor practices and recommending that it cease and
desist therefrom and take affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and the General Counsel filed
a brief in support of the Intermediate Report.
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].
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his findings and conclusions.
134 NLRB No. 96.
630849-62-vol 134-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the substitution of the words "any other manner" i for the words
"any like or related manner" in provision 1(c), and with the modi-
fication that provision 2,(d) read: "Notify the Regional Director for
the Thirteenth Region, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith." 2
i See N.L R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C A. 4).
'In the notice attached to the Intermediate Report as Appendix, the words "Decision
and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner," and the words "by any other conduct" for the words "by any like or related
conduct" in the fourth indented paragraph. In the event that this Order is enforced by a
decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed originally on February 27, 1961, by
Oil, Chemical and Atomic Workers International Union, AFL-CIO, the Union
herein, against Superior Graphite Company, Chicago, Illinois, the Respondent herein,
and duly served, the General Counsel issued an amended consolidated complaint
and notice of hearing on May 4, 1961, alleging that the Respondent had engaged in
unfair labor practices in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, 61 Stat. 136. Respondent duly answered denying the com-
mission of unfair labor practices.
Upon due notice, a hearing was held on July 11 and 12, 1961, at Chicago,
Illinois, before the duly designated Trial Examiner. The General Counsel, the
Respondent, and the Union were represented at the hearing, participated therein,
and were afforded full opportunity to present and to meet material and relevant
evidence, to engage in oral argument, and to file briefs and proposed findings. The
General Counsel filed a brief on August 16, 1961, which has been considered.
Upon the entire record in the case, after consideration of all the evidence and the
contentions of the parties, and from observation of the witnesses and their de-
meanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Superior Graphite Company is an Illinois corporation maintaining a plant and
principal place of business in Chicago, Illinois, where it is engaged in the manu-
facture of graphite products and related products.
During the past year, in the course and conduct of its business operations, the
Respondent purchased, transferred, and delivered to its plant raw graphite and
other goods and materials valued in excess of $50,000, directly from States of the
United States other than the State of Illinois and from points outside the continental
limits of the United States.,
During the past year, in the course and conduct of its business operations, the
Respondent manufactured, sold, and distributed from its plant products valued in
excess of $50,000, directly to States of the United States other than the State of
Illinois.
It is admitted and found that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Briefly stated the issue is whether the Respondent laid off and refused to re-
instate maintenance employee Gordon Maack because ^of his union activities, and
SUPERIOR GRAPHITE COMPANY 915
engaged in other coercive conduct violative of the Act. The layoff and the refusal
to reinstate-which occurred on February 15 and 28, 1961, respectively-are not
disputed. The defense is that they were for proper cause.
The Organization of the Union
The Respondent's is a relatively small operation. The plant consists of a single
large room. In February 1961, 4 supervisory and 19 nonsupervisory employees
were employed in this room without functional segregation or departmentalization.
In early February 1961 a number of the Respondent's employees began discuss-
ing the advisability of establishing a union at the plant. This discussion, which
continued over a period of several weeks, took place in the washroom of the plant
during lunch hours. As a consequence, Gordon Maack, a maintenance employee
obtained a supply of blank union designation cards from the AFL-CIO and, on
February 14, began to solicit employees to sign them. This activity, without evident
attempt at concealment, took place in the washroom during the employees' lunch
hour. Maack readily obtained the signatures of 12 employees, more than a ma-
jority of the production workers, authorizing the AFL-CIO and its affiliated organiza-
tions to represent them as their collective-bargaining agent. Maack transmitted
the cards to the Charging Union, which in due course demanded recognition and
filed a petition for certification-more specifically referred to hereinafter. Maack
was the only employee who distributed union cards.
The Layoff of Maack
On the second day of his distribution of the cards, Wednesday, February 15,
shortly after the lunch hour, about 1 or 1:30 p.m., Maack was called to the office
and told by Plant Superintendent A. J. Steinbach that he was being laid off for lack
of work. Steinbach gave Maack his pay through the end of the current week.
Though the workweek did not end until Friday, Steinbach told Maack that he
could use the rest of the week to look for other employment. Steinbach told
Maack that if work picked up he would be recalled. At the same time Superin-
tendent Steinbach gave Maack the following letter of recommendation on the Re-
spondent's letterhead:
2-15-61
To Whom It May Concern:
The bearer of this letter Gordon Maack has been in our employ as of this
date and because of lack of work it was necessary to lay him off. Gordon
has been an excellent maintenance helper and is highly recommended.
SUPERIOR GRAPHITE CO.,
[Signed] A. J. Steinbach,
A. J. STEINBACH,
Plant Supt.
The February 17 Meeting
Several days later, on or about February 17, 1961, Superintendent Steinbach
called a meeting of the production employees at which he spoke about the layoff
of Maack and also made some comments concerning continued operation of the
plant. The credited testimony of employees John Paluch, William Baumgardner,
and Charles Hoffman as to what Superintendent Steinbach said on this occasion,
partially but not credibly denied by Steinbach, is in substance as follows.
Superintendent Steinbach stated that he had laid off Maack for lack of work,
but had since discovered that Maack was the organizer of the Union, and that
Steinbach would therefore never recall him to work. The superintendent further
said that difficulties encountered in securing graphite from Mexico might require
some change in operations, but that if the Union got in the plant would be closed.
He further told the employees that henceforth overtime (one of the causes of em-
ployee discontent which had led to the union activity) would be divided among
the employees.
The Conversation Between Steinbach and Lampariello
Following the employee meeting, and about a week after the layoff of Gordon
Maack, Superintendent Steinbach had a conversation in the plant with Assistant
Foreman Vito Lampariello in the presence of George Lindstrom, a clerk in the
Respondent's office. The superintendent asked Lampariello whether he knew any-
thing about the Union, Lampariello responding that he did not know "too much."
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steinbach then asked Lampariello whether the latter knew that Maack was "an
instigator" of the Union, adding that Maack was "a good worker " but that he
(Steinbach ) "would never hire him back."
About a week before a representation election held by the Board on March 29,
more specifically referred to hereafter, Superintendent Steinbach told Assistant
Foreman Lampariello that if the Union got in the Respondent 's president would
"close down the place." i
Bollerman 's Interrogation of Baumgardner
Employee William Baumgardner signed a union card at the solicitation of Gordon
Maack on February 14, 1961.2 Sometime between February 17 and March 1,
Howard Bollerman , an employee in the Respondent 's office identified by a number
of employee witnesses as "Assistant Superintendent ," telephoned Baumgardner at
the latter 's home and said : "Bill, this is Howard . . The union card you had
signed, we are trying to find out the union 's name or address on it . Do you know?"
Baumgardner responded that he did not .3
I find this action of Bollerman 's attributable to the Respondent .4
The Conversation between Steinbach and Paluch
On February 14, 1961 , employee John Paluch signed a union card at the solicitation
of Gordon Maack . On February 27, Plant Superintendent Steinbach called Paluch
to the office and spoke to him in the presence of Howard Bollerman concerning
the Union and Maack. Paluch 's credited testimony as to this incident is as follows:
Steinbach told Paluch that he had overheard a conversation in the shower room
to the effect that Paluch was to take over the leadership of the Union after Maack.
Steinbach declined , upon inquiry by Paluch, to identify the source of his information.
The superintendent went on to say that Maack had spoiled a lot of material while
doing a lot of good work ; that he ( Steinbach ) had intended to keep Maack longer;
but that since he had learned that Maack was an organizer of the Union he "had
to let him go." Steinbach further expressed wonder as to why a certain employee
Riley, after many years of service with the Respondent , had "joined the union and
signed a union card ." 5 Steinbach finally told Paluch that , "If the Union ever gets
in here" he (Steinbach ) would hire a stronger employee to replace Paluch on the
latter's job.
Paluch 's testimony as to this conversation is uncontroverted , except for a general
denial by Superintendent Steinbach , not credited , that he had told Maack "or anyone
else in the plant" that Maack had been fired because he was the union leader in
organizing the plant.
Denial of Maack 's Request for Reinstatement
On February 28, 1961 , the day after Paluch's conversation with Plant Super-
intendent Steinbach , Maack came to the plant and , in the presence of Howard
1 The findings as to these conversations between Steinbach and Lampariello are based
on Lampariello's undenied and credited testimony . The General Counsel contends that
Lampariello is a rank-and -file employee ; the Respondent takes no position as to this On
the basis of the record evidence herein I find, contrary to the General Counsel 's contention,
that at the time of the Instant events Lampariello was a supervisor as defined in Section
2(11) of the Act. The statements by Steinbach to Lampariello in the second conversation
related above are therefore not violative of Section 8(a) (1) of the Act, since no employee
within the meaning of the statute was involved . However, the first conversation was in
the presence of Clerk Lindstrom , an employee , and thus coercive and unlawful. And
regardless of whether Lampariello was a supervisor , Steinbach ' s declarations in both in-
stances constitute evidence bearing on the reasons for Afaack' s termination and the
Respondent ' s opposition to the Union.
2 The card bears the date "2/14/G0." The "60" is a typographical error
3 The cards bore the name of the American Federation of Labor and the Congress of
Industrial Organizations , without address
4 Baumgardner ' s credited testimony as to this conversation is undenied . The Respond-
ent contends that Bollerman is merely a clerical employee who shares an office with
Superintendent Steinbach and has no supervisory authority Whatever the fact as to that,
It is evident from the incident that Bollerman's inquiry was on behalf of management In
such circumstances , in the absence of contention or evidence that Bollerman ' s action was
unauthorized , or other explanation , it is attributable to the Respondent.
5 The record does not disclose a signed authorization card by an employee named "Riley."
SUPERIOR GRAPHITE COMPANY 917
Bollerman , asked Superintendent Steinbach for reemployment . Steinbach replied,
in substance, that Maack had no chance of getting his job back since Steinbach
had "heard that [ Maack ) tried to organize the Union ." Seinbach added , " I would
not hire you back under any circumstances ." Steinbach further expressed disap-
pointment at Maack's union activity , said that Maack was "hurting the rest of the
employees ," and declared that if a union came in the older men would be unable
to work under union conditions . Steinbach informed Maack, in substance , that if
the Union came in and Maack was reinstated either Maack or Steinbach would have
to go. In this conversation Steinbach also told Maack that his work had been poor;
that he could not get along with the other men; and intimated that these things were
factors in Maack 's layoff. In addition Steinbach said that a check of attendance
figures since Maack's layoff showed that his attendance record was bade
The Respondent does not now contend that there was no work available for
Maack when he applied for reemployment . On April 4, a new employee was hired
and commenced to do the maintenance work which Maack had done.
The Meeting of Employees After the Election
On March 29, 1961, upon the Union's petition for certification filed Febrary 27,
1961, the Board held a consent election among the Respondent 's employees (Case
No. 13-RC-7675, not published in NLRB volumes ). Of the 22 eligible voters,
21 cast ballots. Of these six were cast for the Union, nine against it, and six were
challenged. Objections thereafter filed by the Union are presently being held in
abeyance pending disposition of the instant charges.
On the day following the election , March 30, Plant Superintendent Steinbach
held a meeting of the production employees and spoke concerning the election.
There is no substantial dispute as to the gist of Steinbach 's statements, the testimony
as to what he said being complementary rather than contradictory.
Steinbach told the employees that he had called the meeting to "set them straight"
regarding rumors that the election was not yet over and that the Union might still
win. He said that the Company had won , that he was pleased with the men who
had voted for the Company (whom he thanked ), but disappointed with the six em-
ployees who had voted for the Union. As to those he suggested that they should
find "more suitable" employment , stating if they would be "men enough" to quit he
would give them layoff slips so that they could collect unemployment compensation.
Concluding Findings
The General Counsel contends that the Respondent laid off Gordon Maack and
refused him reinstatement because of his activity in organizing the Union, and
that by such action and other conduct recited heretofore the Respondent violated
Section 8 ( a)(3) and ( 1) of the Act . The Respondent denies these allegations.
It is evident from the foregoing statement of facts that the evidence establishes
a strong prima facie case in support of the complaint . After several weeks of dis-
cussion in the small plant concerning the organization of a union , Gordon Maack
began securing union designations on February 14, 1961 . On the next day, in the
middle of the workday, after securing signed authorizations in the plant from a
substantial number of employees , Maack was laid off without prior notice effective
immediately, for the stated reason that work was slack . No one else was laid off.
About 2 days later Superintendent Steinbach told the employees that Maack was
the organizer of the Union and that Steinbach would never recall him to work.
Steinbach further threatened to close the plant if the Union got in, and promised
to remedy one of the causes of the union activity . About a week later Steinbach
repeated to Assistant Foreman Lampariello his accusation that Maack was "an
instigator" of the Union , said that Maack was a good worker but that he would
nevertheless not be hired back. Later Steinbach repeated to Lampariello his previous
statement to employees to the effect that if the Union got in the plant would close.
About 2 weeks after Maack's layoff Superintendent Steinbach summoned em-
ployee John Paluch to the office and spoke to him concerning a report that Paluch
6 The above findings are based on the testimony of both Maack and Steinbach , though
principally on that of the former . Where there is conflict I have, on the basis of my ob-
servation and the inherent probabilities , credited Maack's account . While Steinbach
denied referring to Maack ' s union activities in the conversation or ascribing the layoff to
that , and denied having any specific knowledge of such activity-either in general or by
Maack-I am unable to credit such assertions in the light of the substantial evidence
indicating the contrary . Howard Bollerman , who was a witness for the Respondent, did
not testify in support of Steinbach 's account of this incident , although present during it.
918 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD
would take over the leadership of the Union after Maack. In this conversation Stein-
bach told Paluch that he had let Maack go because he was organizing for the Union.
Steinbach further professed knowledge that employee Riley had signed a union
card. Finally he threatened to replace Paluch in his job if the Union came in.
On the next day, February 28, 1961, when Maack inquired about work, Steinbach
refused to reinstate him. There is no contention by the Respondent that work was
not available for Maack at that time; and thereafter the Respondent hired a new
employee to do Maack's work. On this occasion Steinbach reiterated to Maack his
opposition to the union activity, and specifically told Maack that Maack had no
chance of getting his job back because he had "tried to organize the Union." After
the election in March, Steinbach expressed his disapproval of the employees who
had voted for the Union and solicited them to quit, offering as an inducement not
to contest their claims for unemployment compensation.
These acts constitute substantial evidence of discriminatory and unlawful conduct
within the Act.
The Respondent contends, however, that Maack was laid off and refused rein-
statement for cause. Originally the Respondent took the position that Maack was
discharged for a variety of reasons: Faulty workmanship, absenteeism, tardiness,
because he had previously indicated that he was looking for another position, be-
cause he had fought with a supervisor in the plant, because he took a superior atti-
tude toward his job, and because he could not get along with other employees.
Ultimately most of these contentions were abandoned, the Respondent's final position
being that Maack was laid off for lack of work, but that he was refused reinstate-
ment because his work was unsatisfactory and because of absenteeism. Additionally
the Respondent contends that it was unaware of Maack' s union activity. In the
light of the evidence heretofore recited, these assertions cannot be credited.
There is no creditable evidence that Maack's work was faulty, that it was ever
criticized, or that he was ever warned concerning it. Denied testimony by Superin-
tended Steinbach and Foreman Shepard to the effect that Maack did some jobs im-
properly and that they were dissatisfied with his work cannot, in the light of the
record and my observation, be given credence. It, has been seen that Steinbach
gave Maack a letter of reference describing him as an "excellent" maintenance
employee and one "highly recommended." Similar statements by Steinbach to As-
sistant Foreman Lampariello and to employee Paluch to the effect that Maack was
a good worker have been related heretofore. Testimony by Steinbach to the
effect that he gave Maack the recommendation because he did not want to prevent
his employment elsewhere cannot be credited in these circumstances. Such consid-
erate motives do not explain his approbatory declarations to Lampariello and Paluch.
The assertions that Maack's absenteeism was a factor in refusing him reinstate-
ment is not credited. Maack had never been criticized or warned concerning such
alleged delinquency-and could not have been since the Respondent admittedly was
not aware of such a record until after his layoff. No documentary evidence such
as payroll data is presented , though available, in support of the Respondent's
assertions as to Maack's record in this respect. Maack's testimony is that on the
occasions on which he was absent it was with the prior permission of his foreman,
Shepard. This testimony is undenied and credited.
On the evidence the defenses now brought forward by the Respondent as justi-
fication for the discharge must be considered pretexts to cloak discriminatory action.
The other contentions, now abandoned, need not be discussed-though they too
are shown by the evidence to be unsubstantiated.
The defense that the Respondent was without knowledge of Maack's union activity
is clearly untenable as of the date of the request for reinstatement on February 28.
On that occasion Steinbach declared his awareness of Maack's union efforts and
his determination not to rehire him for it. Indeed, Steinbach had said the same
things on several prior occasions-at the February 17 meeting, and in the two
conversations with Paluch and Lampariello, previously related. The inference is
justified and drawn that the Respondent's knowledge of Maack's union activity
preceded the February 17 meeting and Maack's layoff. In the light of the back-
ground, the swift coincidence of union activity and the layoff alone suggest such
knowledge. There is, however, specific evidence as to such knowledge reflected in
Superintendent Steinbach's statements to Paluch on February 27 to the effect that he
had intended to keep Maack longer but had to let him go when he learned that Maack
was an organizer of the Union. Moreover other evidence shows the Respondent's
awareness of union activity in the plant. The operation was small and the move-
ment not concealed. Superintendent Steinbach asserted to Paluch that he had over-
heard the statement in the shower as to Paluch's taking over the union leadership.
He also indicated having knowledge that Riley had signed a union card . Finally,
SUPERIOR GRAPHITE COMPANY 919
Howard Bollerman knew that employee Baumgardner had signed a union card.
In the light of these circumstances it is inferred that the Respondent was aware
of Maack's union activity at the time of his layoff and terminated him for that
reason. It is true that certain action of Steinbach, such as his declaration at the
February 17 meeting that he had laid off Maack for lack of work, and his giving the
letter of reference to Maack, suggest that he did not acquire knowledge of Maack's
efforts until after the layoff. Even these, however, make clear that the refusal
to reinstate Maack on February 27 was because of the union activity. Thus the viola-
tion is established in either case. On balance, however, and in the light of all the
evidence, it seems more probable and it is concluded that the Respondent's knowledge
of Maack's union activity preceded his layoff and caused it.
On the basis of the foregoing facts and considerations, it is found that the Re-
spondent laid off Gordon Maack on February 15, 1961, and refused him reinstate-
ment on February 28, 1961, and thereafter, because of Maack's activity on behalf
of the Union, and that the Respondent thereby, in violation of Section 8(a)(1) and
(3) of the Act, discriminated in Maack's employment, discouraged membership in
the Union, and interfered with, restrained, and coerced employees.
It is further found that by the following conduct the Respondent additionally inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
by the Act:
(1) Superintendent Steinbach's statement to employees on February 17, 1961, to
the effect that because Maack was the organizer of the Union he would never
be recalled to work.
(2) Superintendent Steinbach's statement to employees on the same occasion to
the effect that if the Union got in the plant would be closed.
(3) Superintendent Steinbach's statement to employees on the same occasion to
the effect that henceforth overtime would be divided among the employees. It is
found that this declaration constituted a promiselof benefit designed to circumvent
union organization.
(4) Superintendent Steinbach's statement to Assistant Foreman Lampariello
in the presence of employee Lindstrom to the effect that Maack was an instigator of
the Union and would never be hired back.
(5) Superintendent Steinbach's statements to employee John Paluch on February
27 as follows: (a) concerning Paluch's taking over the leadership of the Union;
(b) that Steinbach had let Maack go because he had learned that Maack was a union
organizer; (c) Steinbach's indication that he knew that employee Riley had signed
a union card; and (d) that if the Union. got in Steinbach would hire another em-
ployee to replace Paluch.7
(6) Superintendent Steinbach's statements to employees on March 30, 1961,
soliciting the men who had voted for the Union to quit, and offering as inducement
and benefits not to contest their claims to unemployment compensation if they
would do so.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take affirmative and remedial
action effectuating the policies of the Act. Having found that the Respondent dis-
criminatorily laid off Gordon Maack and refused to reinstate him, I recommend
that the Respondent offer Maack immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole in accordance with the Board's usual remedial
policies for any loss of earnings occasioned by his discharge, during the period from
February 15, 1961, to the date of the offer of reinstatement.
I further recommend that the Respondent, upon reasonable request, make avail-
able to the Board and its agents, for examination and copying, all payroll and
other records pertinent to an analysis of the amount due as backpay.
7 While the record does not disclose a signed card by an employee named Riley, the re-
mark is coercive regardless of whether Riley actually signed one.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor
organization within the meaning of the Act.
2. By laying off and refusing to reinstate Gordon Maack because of his union
activities, thereby discriminating in regard to his employment and discouraging
membership in the Union, the Respondent has engaged in and is engaging in unfair
labor practces within the meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Superior Graphite Company,
Chicago, Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO, or any other labor organization, by discharging, laying off,
refusing to reinstate, or otherwise discriminating against employees because of their
union or concerted activities.
(b) Threatening employees with reprisals in employment or promising or offering
them inducements or benefits in connection with their union or concerted activities.
(c) By the foregoing conduct fir in any like or related manner interfering with,
restraining, or coercing employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection' or to refrain from any
or all 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.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Gordon Maack immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole in the manner set forth above in the section entitled
"The Remedy" for any loss of earnings he may have suffered by reason of the dis-
crimination against him.
(b) 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 pertinent to an analysis
of the amount due as backpay.
(c) Post at its plant in Chicago, Illinois, copies of the notice attached hereto
marked "Appendix." Copies of said notice, to be furnished by the Regional Director
for the Thirteenth Region (Chicago, Illinois), shall, after being duly signed by the
Respondent's authorized representative, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.
It is further recommended that the Board issue an order requiring the Respondent
to take the action aforesaid.
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 Re-
lations Act, as amended, we hereby notify our employees that:
BURRELL METAL PRODUCTS CORP . 921
WE WILL NOT discourage membership in Oil , Chemical and Atomic Workers
International Union , AFL-CIO, or in any other labor organization , by discharg-
ing, laying off, refusing to reinstate , or otherwise discriminating against em-
ployees because of their union or concerted activities.
WE WILL offer to Gordon Maack immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority
or other rights and privileges , and make him whole for any loss of earnings he
may have suffered as a result of his being laid off and refused reinstatement.
WE WILL NOT threaten employees with reprisals in employment or promise
or offer them inducements or benefits in connection with their union or con-
certed activities.
WE WILL NOT by any of the foregoing , or by any like or related conduct,
interfere with, restrain , or coerce employees in the exercise of their right to
self-organization , to form , join, or assist labor organizations , to bargain collec-
tively, and to engage in concerted activities for their mutual aid or protection,
or to refrain from any or all such activities.
WE WILL NOT interfere with the efforts of Oil , Chemical and Atomic Workers
International Union , AFL-CIO , to represent our employees or seek to become
such representative . All our employees are free to become or remain members
of this Union , or any other labor organization , or to refrain thereform.
SUPERIOR GRAPHITE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Burrell Metal Products Corp. and District Lodge 76, Inter-
national Association of Machinists , AFL-CIO. Case No. 3-CA-
1570. December 4, 1961
DECISION AND ORDER
On September 13, 1961, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and is 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 further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter the
General Counsel filed exceptions to the Intermediate Report and a
supporting memorandum.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board 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 Intermedi-
ate Report, the exceptions and memorandum, and the entire record in
134 NLRB No. 97.