The Electric Auto-Lite Co.

National Labor Relations Board - Board Decisions

Dec 31, 1948

80 N.L.R.B. 1601 (N.L.R.B. 1948)

In the Matter of THE ELECTRIC, AUrO-KITE COMPANY and UNITED
AUTOMOBILE, AIRCRAFT &'' AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW-CIO and HELEN MEIER, GRACE (CROUT) VERME'rT,
IVA (BENTLEY) BRAUN, DOROTHY ZIMMERMAN , AND ARLENE AMANN
Ca.^e Nos. 13-C-3038 and 13-C-32417.-Decided December 31, 1948
DECISION
AND
ORDER
On July 28, 1948, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled consolidated proceedings,
finding that the Respondent had not violated Section 8 (1) or (3) of
the Act' as alleged in the complaint, and recommending that the com-
plaint against the Respondent be dismissed in its entirety. Thereafter,
counsel for the charging parties filed exceptions to the Intermediate
Report and a supporting brief.'
The Board 3 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed .4 The Board has considered the Intermediate
Report. the exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, as set forth in the copy of the Intermediate Report
attached hereto.
i The provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which
the complaint alleged were violated , are continued in Section 8 (a) (1) and ( 3) of the Act
as amended by the Labor Management Relations Act, 1947
2 In view of our decision , as hereinafter set forth , we hereby deny the Respondent's
request for oral argument.
2 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 -man panel consisting of the undersigned
Board Members [ Chairman Ilerzog and Members Houston and Gray].
4 As Stated in the Intermediate Report , the Trial Examiner denied the General Counsel's
motion to amend the complaint by adding additional 8 (a) (1) allegations thereto. Although
some testimony ielating to matters covered by the proffered amendment was received In
evidence , we do not believe , in view of the Trial Examiner 's ruling, that such matters were
litigated and that we could properly make findings on the merits of the allegations in ques-
tion Under these circumstances we find it unnecessary to express any opinion concerning
the propriety of the Trial Examiner s rulings denying the amendment
80 N. L. R. B., No. 243.
1601
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint issued herein against
the Respondent , The Electric Auto-Lite Company, Woodstock, Illinois,
be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Robert Ackerberg , for the General Counsel.
Messrs. Max Raskin and Harold A. Katz, by Mr. Harold A. Katz, of Chicago,
Ill., for the Union.
Rathbone, Perry, Kelley cE Drye, by Mr. T. R. Iserman, of New York, N. Y., and
Mr. James P. Falvey, of Toledo, Ohio, for Respondent.
STATEMENT OF THE CASE
Upon a charge filed October 29, 1946, by United Automobile, Aircraft & Agri-
cultural Implement Workers of America, UAW-CIO, herein called the Union,
in Case No. 13-C-3058, and upon a charge filed August 21, 1947, by Dorothy
Zimmerman in behalf of herself and four others in Case No 13-C-3247, and said
cases having been ordered consolidated on April 13, 1948, by the Regional Director
for the Thirteenth Region (Chicago, Illinois), the General Counsel of the National
Labor Relations Board,' by said Regional Director, issued a complaint dated
April 13, 1948, against The Electric Auto-Lite Company, herein called Respondent,
alleging that Respondent had engaged in, and was engaging in, unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as
amended by the Labor Management Relations Act, 1947, 61 Stat. 136, herein
called the Act 2 Copies of the complaint, the charges, and notice of hearing
thereon were duly served upon the parties.
With respect to the unfair labor practices, the complaint, as amended, alleged
in substance that Respondent on or about September 9, 1946, discharged Helen
Meier, Grace (Crout) Vermett,' Iva (Bentley) Braun, Dorothy Zimmerman,
and Arlene Amann,' and thereafter refused to reinstate them for various periods
of time prior to July 1, 1947, because they (1) joined and assisted the Union
and (2) engaged in concerted activities for their mutual aid and protection by
presenting a grievance concerning working conditions, and by engaging in a
work stoppage on September 9, 1946, to implement said grievance, said conduct
constituting a violation of Section 8 (a) (1) and (3) of the Act.
Respondent's answer admitted the allegations of the complaint with regard
to the nature and extent of its business operations, denied the commission of
any unfair labor practices and alleged affirmatively that the complaint had been
' The General Counsel and his representative in this case are referred to herein as the
General Counsel . The National Labor Relations Board is referred to as the Board.
2 Judicial notice is taken at the request of the General Counsel, that Section 8 (a) (1)
and (3 ) of the Act , as amended, is substantially identical, for the purposes of this proceed-
ing, with Section 8 (1) and (3) of the original Act which was in effect at the time of the
commission of the alleged unfair labor practices and which section was reenacted in the
amended Act.
8 Also appearing in the transcript as Vernett.
4 Also appearing in the transcript as Amenn.
THE ELECTRIC AUTO-LITE COMPANY 1603
issued without authority because it was based upon alleged unfair labor practices
occurring more than 6 months prior to the filing of the charges and service of same
upon Respondent.
Prior to the hearing Respondent moved that the complaint be dismissed on
the grounds (1) that the charge in Case No. 13-C-3058 was not served on
Respondent within 6 months of the commission of the alleged unfair labor
practices, and (2) the charge in Case No. 13-C-3247 was not filed or served upon
Respondent within 6 months of the commission of the alleged unfair labor
practices, although Section 10 (b) of the Act requires the filing of a charge
and service of same upon the person against whom the charge is made within
6 months of the commission of the alleged unfair labor practices. In an order
dated May 6, 1948, Trial Examiner William F. Scharnikow denied the motion to
dismiss. The Board, in an order dated May 13, 1948, upon Respondent's motion
for leave to appeal said ruling, reaffirmed the Trial Examiner's ruling and
held, ". . . Section 10 (b) of the amended Act imposes no limitation upon the
issuance of complaints in any case in which the charges have been filed and
served within 6 months after August 22, 1947, the effective date of the amend
ments. It is not alleged that the charges upon which the consolidated complaint
was issued were not filed and served within six months after August 22, 1947.
Accordingly, the respondent's motion for leave to appeal is denied."
Pursuant to notice, a hearing was held on June 3, 4, and 9, 1948, at Woodstock,
Illinois, before the undersigned Trial Examiner, Martin S. Bennett, duly desig-
nated by the Chief Trial Examiner. The General Counsel, the Union, and Re-
spondent were represented by counsel and all 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 all parties.
During the hearing, the undersigned denied a motion by the General Counsel
to amend the complaint by adding a new alleged violation of Section 8 (a) (1)
of the Act which read, ". . . by acts in September and October 1946, of the said
Mr. Giles in (1) interrogating employees as to union membership, inclinations
and activities and (2) in his publishing to employees prohibitions against any
union activities or solicitations on company property at any time."
In the course of the hearing, a witness called by the General Counsel, Amann,
was unable to complete her testimony because of illness which necessitated her
leaving the witness stand and prevented her return for completion of direct
examination and for cross-examination. The undersigned denied a motion by
Respondent to strike the witness' testimony in part but offered to entertain a
motion to strike her testimony in full, stating that Respondent had not been
afforded an opportunity to cross-examine the witness. It was finally stipulated
by the parties, with the consent of the undersigned, that the testimony of the
5 Respondent renewed its motion before the undersigned at the instant hearing and it was
denied.
6 This motion was made at the hearing on June 3, 1948, more than 6 months after August
22, 1947 , which was the effective date of the amendments to the Act . The motion embraces
conduct allegedly taking place in September and October 1946. Both charges herein alleged
only that Respondent had discharged five employees on September 9, 1946, and had rein-
stated them on October 10, 1946, under discriminatory conditions thereby violating Section
8 (1) and ( 3) of the original Act. Both charges were silent as to any independent conduct
allegedly violative of Section 8 (a) (1) of the Act in any way resembling in point of sub-
stance the subject matter of the proposed amendment In the opinion of the undersigned
the 6-month proviso of Section 10 (b) of the Act forbids this proposed amendment as said
allegations, if admitted to the complaint, would render the complaint violative of the
injunction that "no complaint shall issue based upon an unfair labor practice occurring
mole than six months prior" to the filing and service of the charge.
817319-49-vol 8-102
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness would be considered by the undersigned in the light of the noncompletion
of direct examination and the absence of cross-examination. The witness' testi-
mony has been so considered. At the close of the General Counsel's case, a motion
by Respondent to dismiss the case was denied. At the conclusion of the hearing,
the undersigned granted a motion by the General Counsel to conform the plead-
ings to the proof with respect to purely formal matters. The parties were
afforded an opportunity to argue orally upon the record and to file briefs and/or
proposed findings of fact and conclusions of law with the undersigned. Oral
argument was waived and briefs have been received from the General Counsel,
the Union, and Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Electric Auto-Lite Company is an Ohio corporation whose principal offices
are located in Toledo, Ohio. It operates manufacturing plants in the States of
Ohio, Michigan, Wisconsin, New York, Indiana, Oklahoma, Illinois, and in
Canada. Its plants include a plant at Woodstock, Illinois, which is the only
plant involved in this proceeding, where it is engaged in the manufacture, sale
and distribution of die castings and other products. During the year 1947,
Respondent purchased raw materials valued in excess of $500,000, of which more
than 25 percent was shipped to its Woodstock, Illinois, plant from points outside
the State of Illinois. During the same period, Respondent sold finished products
valued in excess of $1,000,000 of which more than 50 percent was shipped from
its Woodstock, Illinois, plant to points outside the State of Illinois.
The undersigned finds that Respondent is engaged in commerce within the
meaning of the Act.
IT. THE ORGANIZATION INVOLVED
United Automobile, Aircraft & Agricultural Implement Workers of America,
UAW-CIO, is a labor organization , admitting to membership employees of
Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
1. Preliminary events
At no time during the events material herein has there been a collective bar-
gaining representative selected by a majority of Respondent's employees and so
recognized by Respondent, nor does the record disclose that there has ever been
one. On or about August 20, 1946, after an organizing campaign, the Union
filed a petition for investigation and certification of representatives at Respond-
ent's plant' Of the five ladies, whose alleged termination of employment on
September 9 is the primary issue herein, three, Meier, Zimmerman, and Vermett,
joined the Union shortly before September 9; one, Braun, joined after that date ;
and the record does not reveal when the fifth, Amann, joined .8 None of them
were outstanding, insofar as the record indicates, in their union activities.
Case No 13-R-8891.
S It will be recalled that this is the witness whose testimony was interrupted by illness.
THE ELECTRIC AUTO-LITE CO VIPANI 1605
These five ladies worked together as a group in the plating department where,
in connection with their work, it was regularly necessary to lift pans or trays
filled with objects to be plated, the weight of which varied. For some weeks
previous to September 9 the group had complained about this lifting operation,
asking that a handler be provided by the management for this purpose. The
record shows that at one time a handler had been provided by Respondent but
that he left and was never replaced. These employees also complained of their
piece-work rates and it appears that their piece-work rates played at least some
part in their objections to the lifting operation. It appears further that they
also discussed excesses, which are additional allowances by management on
some piece-work operations because of their difficulty.
In their various talks, largely with Foreman Julius Thomas and also on
occasion with General Foreman Merle Young, during the period preceding
September 9, the group continued to repeat their grievance and both Thomas
and Young generally replied that they would see what they could do about it.
Nothing was done about the situation by Thomas or Young or anyone connected
with management, although time-study men on several occasions in the weeks
immediately preceding September 9 did check on the various operations of this
crew of five in the plating department.
2. Events of September 9 °
The Facts
During the morning of September 9 the five women again expressed their
grievance to Foreman Thomas. Thomas, who was apparently quite harassed
because of a mechanical break-down elsewhere in the plant, promised to look
after the matter but took no action that morning. After lunch the group re-
sumed work as usual, but at 1: 30 p. m, as Mrs. Meier testified, ". . . we [the
five women] decided we would stop working until we found out what was going
to be done [concerning their grievance]." They did halt work completely and
stood about in the department.10 Within 5 minutes, Foreman Thomas came
upon the scene and was informed by the group that they had stopped work;
that they desired an understanding on their grievance ; and that they wanted
to know whether or not a handler would be provided. Thomas replied, accord-
ing to Meier, that he would get Mr. Young if the women did not resume work.
The women then told Thomas that he could get Young if he chose and Thomas
immediately went to Young's office. He returned shortly, announced that Young
was busy but would appear as soon as possible, and that the women would have
to wait to see Young. The women continued to stand near their machines in a
group, performed no work, and awaited Young's appearance on the scene.
Twenty or thirty minutes later General Foreman Young, who had been informed
by Foreman Thomas of the work stoppage and its causes, appeared on the scene
and, according to Mrs. Meier, the following took place :
He just walked up to us and said "If you girls are not going to work,
get the hell out of the department" so no one said anything, then he asked
9 Findings herein , except as otherwise indicated , are based upon a consensus of the
testimony of the five women In large measure the testimony of Respondent 's witnesses
did not conflict with their version except as indicated below
10 Although it appears that one or two may have been sitting, the record does not support
any contention that they engaged in a sit-down strike.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where our cards were and we said in the racks, so be told us to get them
and punch them out"
The group of five went to the lobby of the plant at approximately 2: 30 p. m,
followed by Young, and proceeded to punch out their cards. There was some
talk between them and Young, on an amicable basis, and they asked for their
pay checks. They were informed by Thomas that they could obtain the checks
on the following Friday, the customary pay day. Young then told them that
they could talk to General Superintendent Giles, but that he doubted if Giles
could do any more for them than he (Young) hadr already done. None of the
women desired to see Giles. Young stated that they were satisfactory workers
and that he regretted to see them leave .12
Conclusions
The General Counsel contends that these five employees were discharged
by Respondent on September 9 for their union or concerted activities. There is
no evidence of any outstanding union activities on the part of these five employees
or that their union membership played a part in Respondent's treatment of them
on September 9. As a result, the General Counsel's position is reduced, in the
opinion of the undersigned, to the view that these employees were discharged on
September 9 for engaging in concerted action for their mutual aid or protection.
The position of Respondent is that the girls voluntarily quit Respondent's employ
on September 9, but it alleges, in the alternative, that this may have been an
economic strike. As appears below, the undersigned is of the belief that the
employees, on September 9, were in the position of economic strikers who left
Respondent's employ and that they neither quit nor were discharged on that date.
These employees had concertedly stopped work approximately one-half hour
earlier and had jointly communicated their grievances to Foreman Julius Thomas.
Thereafter, they concertedly abstained from performing any further work and
awaited Young's arrival on the scene. He extended to them the alternatives,
although his language was not that of the parlor, of returning to work or leaving
the plant. Significantly, the alternatives were not to return to work or be dis-
charged. By their uniform silence, after brief consideration of the alternatives
propounded by Young, and more particularly their failure to return to work
under existing conditions as proposed by management, which Respondent was
entitled to demand of them, they manifested an intent to continue with their
concerted activities. Bearing in mind that another shift was due to start
shortly thereafter, and that Respondent was entitled to get his equipment back
into operation, Young quite properly instructed the workers to punch out and
leave the premises. This too they did in concert and this activity constituted a
continuation of their joint action previously embarked upon. Their further
alleged efforts in unison to later return to Respondent's employ and to the same
'1 Meier's testimony was substantially duplicated by that of the other four. According
to Foreman Thomas, Young came upon the scene , first spoke to Thomas and then spoke sub-
stantially as appears above. According to Young, he had a discussion with the women
wherein he explained Respondent's difficulty in obtaining a handler and invited them to
return to work whereupon they all remained mute and he instructed Thomas to move them
out of the department . The undersigned accepts Mrs . Meier's version as substantially
reflecting what took place. In any event, on either the version of the women or of Young,
the conclusions drawn by the undersigned from the incident would be identical.
"There was a conflict as to whether Young or the women said they were fortunate not
to be living in Russia where workers were shot for leaving their work. Regardless of
who said it, the undersigned considers the remark immaterial.
THE ELECTRIC AUTO-LITE COMPANY 1607
allegedly onerous positions only add weight to the view that this was a con-
certed activity throughout Although there was no picketing as such, the cessa-
tion of work by this group was no less a strike because the group may not have
labeled it as such or engaged in the additional activities which usually accom-
pany a strike." It is accordingly found that the five employees, in leaving the
plant on September 9, 1946, engaged in an economic strike in response to Re-
spondent's order to return to work under existing conditions."
3. Later events
It has been found that the group of five employees, after having been spoken to
by Young, continued their concerted activity on September 9 and became eco-
nomic strikers. As all five were reinstated by Respondent approximately 5
weeks later on October 14 or 15," the undersigned will now consider the evidence
offered by the General Counsel, apparently in support of the position that the
strikers made application for reinstatement shortly after the walk-out. His
theory, it would seem, is that they unconditionally applied for reinstatement at
dates well in advance of their actual reinstatement and that the delay in re-
instating them was, as a matter of law, a discrimination against them 16 Inas-
much as the entire period that they were absent from employment is a short one
of approximately 5 weeks, the undersigned will take up the various alleged ap-
plications for reinstatement seriatim:
September 10
On the morning after the commencement of the strike, one of the five strikers,
Iva (Bentley) Braun, went to the plant employment office. She testified on direct
examination that she then asked Plant Superintendent Giles if "I could get
back on the night shift" and he replied that he would advise her if an opening
presented itself." On cross-examination she testified that she was not sure
whether she spoke to Giles or Employment Manager Fish, but thought that it
had been Giles. Giles denied that Braun had spoken to him on September 10, and
Fish was not questioned concerning the incident. Although it appears that she
probably spoke to Fish on the morning of September 10, it is unnecessary to
resolve this conflict because in any event Braun did not apply for reinstatement
to the position she held at the time of the strike but asked for a different one on
another shift. This does not constitute unconditional application for rein-
statement to a position filled at the time of a strike and it is so found.
13 Matter of Massey Gin and Machine Co., 78 N L. R. B. 189.
14 Walter Thomas, a set-up man at the plant, testified that the employees asked him
sometime during September 9 to obtain gate passes for them ; this was offered presumably
in support of the position that the girls intended to quit their employment that day. Four
of the girls denied speaking to Walter Thomas that day and the fifth, whose testimony was
not completed, was not questioned concerning this. Thomas was a singularly unimpressive
witness whose testimony aas very vague and lacked clarity and his testimony is rejected
In any event, in view of the situation as it developed between Young and the workers that
afternoon, Thomas' testimony is immaterial.
15 As will be discussed hereinafter, it is also alleged that reinstatement on October 14
in several cases was carried out under discriminatory conditions.
Although the testimony referred to reinstatement on October 14, Respondent's records
indicate that it was effected on October 15.
16 N. L. R B. v. Mackay Radio Co., 304 U. S. 333.
11 Braun, as in the case of the other four, was employed on the day shift. At a previous
time, however, she had worked on the night shift and she preferred work on that shift.
Upon reinstatement on October 14, 1946, she was assigned to the night shift as she desired.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 13
On September 13, the five women assembled by pre-arranged plan at the home
of Dorothy Zimmerman for the purpose of jointly obtaining their pay checks.18
Zimmerman then telephoned Giles and asked him if they could get their checks.
Giles replied that the checks were ready and at the employment office. Zimmer-
man asked Giles, as she testified, "how about our jobs?" Giles replied that he
was sorry that they had "quit" whereupon Zimmerman insisted that they had
not "quit" but had been "fired." The conversation between Zimmerman and
Giles ended on this note of discord.
As the women had previously been advised by their union representative,
Cutcher, to find out whether Giles would meet them in his, the representative's,
presence, Meier telephoned Giles 5 minutes later and asked if he would meet them
as a group. Giles replied that he would, whereupon Meier asked if they could
bring their union representative with them. Giles then stated that he would be
glad to meet the group individually or jointly, but was not interested in meeting
their representative's
The undersigned is unable to see how the above conduct by the strikers on
September 13 amounted to an unconditional offer to return to work. They asked
to see Superintendent Giles and, although he took the position that they had
"quit," he did agree to talk to them either as a group or individually. They then
attempted, as Meier testified they had been instructed by their union representa-
tive, to introduce the representative into the meeting, whereupon Giles refused
to meet them if the representative were present. As the Union had no official
representative status in the plant at the time, Giles was clearly entitled to take
the position that he did take. Further, he still expressed a willingness to confer
at once with the group which was assembled at Zimmerman's home, as they in-
formed Giles, and he knew that her home was located directly across the street
from the plant. In view of the above, the undersigned finds that the conversa-
tions of September 13 do not constitute unconditional application for reinstate-
ment by the strikers.
September 25
On September 24, the Board-ordered election in the representation case was
conducted in Respondent's plant and the Union lost. Afterwards, Personnel
Manager Fish was asked by Union Representatives Cutcher and Stucker if
Respondent would reinstate the five women and whether they could come in to
see Giles. Fish replied that it was a matter for the women to decide 20 The
representatives then told the women, somewhat inaccurately, that Respondent
had requested that they report to the plant.
On the following day, they presented themselves at Giles' office. When asked
by Giles what was the purpose of the visit, they stated that they had been in-
structed by Cutcher and Stucker to call upon him. Giles then stated that he
regretted that they had not come in of their own volition, but asked what it was
they wished to discuss. The women replied that they desired to return to work,
whereupon Giles proceeded to talk over with them the operations in the various
Is Findings as to this incident are based on the testimony of Meier„ Zimmerman, Ver-
mett, Braun, and Superintendent Giles which although differing in some minor aspects is
in substantial agreement.
19 According to Meier, Giles stated, "You had better stick with your representative."
20 This finding is based on the uncontroverted testimony of Fish. Cutcher and Stucker
did not testify.
THE ELECTRIC AUTO-LITE COMPANY 1609
departments of the plant , as well as the respective merits of night and day workn
Giles agreed to give them all consideration as openings presented themselves, and
instructed the group to leave their telephone numbers at the employment office.
He also ordered Young to give the women the first jobs that became available.
In view of the above, it is found that the five women unconditionally applied for
reinstatement to their positions on September 24, and it is clear that Plant
Superintendent Giles informed them that they would be rehired as positions
arose 22
October 7 and 11,; reinstatement of the strikers
On October 7, Giles summoned the five women to the plant and conferred
privately with each one.23 He told each of them that he expected to be able to
place them ; he also told Meier and Vermett that there would be no union to rep-
resent them. Giles attempted to persuade two of the five, who had previous
drill press experience, to take positions in that department at equal earnings
because only three positions were then open in the plating department. Accord-
ingly, Amann and Zimmerman agreed to start on drill press work and Giles
promised Zimmerman that she could return to plating if the drill press work, as
she claimed, made her nervous.24 Respondent's records corroborate Giles herein
and indicate that the other three women had only plating department experience ;
according to Giles, he desired to assign them to operations they had previously
performed where their earnings might be high .2'
21 According to the testimony of Meier and Giles, and as indicated by notes made by
Giles at the time, Braun stated that she preferred to return to night work.
22 The above findings are based on the testimony of Giles, who impressed the undersigned
favorably in this aspect of his testimony. Meier , Zimmerman , and, in part , Vermett, were
generally in agreement that Giles said he was sorry that they were under the influence
of the union representatives and that it was impossible to reinstate them. The testimony
of the three women is, however , in the opinion of the undersigned , self-contradictory
herein ; although Meier and Zimmerman testified that Giles said he doubted if he could
reinstate them, they elsewhere admitted that he did discuss problems of the departments,
the nature of the work, and the question of wages Furthermore, Meier admitted that
Braun indicated she wanted to go on night work and the others indicated they desired
plating work , thus supporting Giles' version of the conversation . It is difficult to see how
Giles would have discussed all these items directly pertaining to reemployment and then
told the women to leave their telephone numbers at the employment office, as all three
admitted , had the incident not transpired as he testified and set forth above.
In any event , and irrespective of which version of the incident is accepted , the record
clearly indicates that the women unconditionally applied for reinstatement on this
occasion.
21 There is some testimony to the effect that the women, shortly before October 7,
went to Toledo, Ohio, where the Union already represented employees at another plant
of Respondent and that they were there told by union officials , not identified , that pres-
sure would be brought to bear upon officials at the Woodstock plant to reinstate them
and to expect a telephone call from said officials . The record further indicates that
Plant Superintendent Giles knew of this trip to Toledo. Although the coincidence is
somewhat persuasive , the undersigned makes no finding that the October 7 interviews of
the women by Giles were brought about as a result of their trip to Toledo
24 Giles so testified Zimmerman 's testimony generally agreed herein with that of Giles,
although she had no recollection of his promise to transfer her to plating work if she became
nervous.
25 It will be recalled that the undersigned denied the motion by the General Counsel
to add to the complaint a new 8 (1) allegation consisting of (1) interrogation of employees,
and (2 ) prohibition of union activities on company property at any time Mrs. Braun
uncontrovertedly testified that in her interview on October 7, Giles asked her if she were
a union member and if she had a union card, Giles only denied interrogation of Braun
at an earlier meeting on September 25. Although the undersigned accepts Braun ' s testi-
mony herein , no findings adverse to Respondent are made thereupon , in view of the ruling
on the proposed amendment to the complaint.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 14, the five women were summoned back to work and reinstated.
Amann and Zimmerman reported to drill press operations, Braun was assigned
to night plating work, and Meier and Vermett were assigned to their former
positions.R°
Contentions and Conclusions
The five women, as economic strikers, were entitled to reinstatement to their
former positions upon unconditional application for same if they had not, in the
interim, been permanently replaced." As found above, such unconditional appli-
cation was made on September 25, and, after being informed on October 7 by
Giles that he could probably reinstate them, they were reinstated on October 14.
This reinstatement was effectuated approximately 2% weeks after it was uncon-
ditionally requested by the strikers. In view of the size of this plant, employing
in excess of 1,200 workers , and upon all the circumstances in this case, as set
forth above, the undersigned is persuaded that there was not an unreasonable
delay on the part of Respondent in offering these employees reinstatement after
their application for same '
Furthermore, there is testimony on the part of Plant Superintendent Giles that
after the walk-out of September 9 he transferred employees from other plating
operations in the plant to those performed by the strikers, and that permanent
replacements were hired by the personnel office prior to September 25 to take
the places of the transferees.29 It is accordingly found, in the alternative, that
the strikers were permanently replaced, prior to their unconditional application
for reinstatement on September 25, by transferees from other operations in the
plant and that such transferees were replaced in their original operations by
newly hired permanent replacements 30
One additional allegation remains for consideration, namely, that Zimmerman
and Amann were discriminatorily assigned to less favorable operations on their
reinstatement on October 14, 1946. Although Amann was unable to complete her
testimony because of illness, Respondent's records reseal that she was trans-
ferred from drill press operations to racking, presumably her former operation,
on January 6, 1947. Similarly, Zimmerman was offered a transfer to plating
operations in January 1947, which she refused, contending that she desired
to return to her former job and in March 1947 she was returned to her former
plating operation.
In the opinion of the undersigned, there is an absence of competent testimony
to indicate that in any way, other than in matter of personal preference, Amann
or Zimmerman was given a discriminatory assignment on their return to work.
There was no difference in earning potentialities and earnings were approxi-
mately parallel. Further, there is no evidence that Zimmerman and Amann
26 There is considerable conflict in the record as to whether Giles, in conversations with
the women on October 14, immediately prior to their return to work, told them to abstain
from union activities on company property at all times or merely to abstain from union
activities during working hours. In view of the ruling on the proposed amendment to the
complaint , the undersigned deems it unnecessary to resolve this conflict . See footnote 25.
27 N L. R. B. v. Mackay Radio Co., supra.
28 Assuming that Giles did mention the Union in his discussions with the women on
October 7 and 14 , as contended by the General Counsel and as found in part, this does
not establish the conclusion that it played any part in the date of their reinstatement by
Respondent.
29 Giles was not asked to give the names of the transferees or their replacements His
testimony stands uncontroverted and as he personally approves all hiring slips of em.
ployees , it is entitled to some weight.
'ON. L. R B v. Reed & Prince Mfg. Co., 118 F. (2d) 874 (C. C A. 1), cert. den. 313 U. S.
595. Matter of R,ipublic Steel Co., 62 N. L. R. B. 1008.
THE ELECTRIC AUTO-LITE COMPANY 1611
could have been assigned by Respondent to vacant positions in plating operations
on October 14, 1946. It is accordingly recommended that this allegation in the
complaint be dismissed.
It having been found that the five strikers were not discriminatorily denied
reinstatement prior to their actual reinstatement on October 14, 1946, because
they had been permanently replaced prior to their applications for reinstatement,
and in the alternative , that the Respondent reinstated them within a reasonable
interval after their unconditional application for reinstatement , it will be recom-
mended that the complaint herein be dismissed in its entirety.
Upon the basis of the foregoing and upon the entire record , the undersigned
makes the following
CONCLUSIONS OF LAW
1. The operations of Respondent , The Electric Auto-Lite Company, constitute
trade, traffic , and commerce among the several States within the meaning of
Section 2 (6) and (7) of the Act.
2. United Automobile, Aircraft & Agricultural Implement Workers of America,
UAW-CIO, is a labor organization within the meaning of Section 2 ( 5) of the Act.
3. Respondent has not engaged in unfair labor practices , as alleged in the
complaint, within the meaning of Section 8 (a) (1) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint against the Respondent be dis-
missed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22 , 1947 , any party may, within
twenty ( 20) days from the date of service of the order transferring the case to
the Board , pursuant to Section 203.45 of the said Rules and Regulations , file with
the Board , Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding ( including rulings upon
all motions or objections ) as he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. The further provided in said Section
203.46, should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the date
of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
MARTIN S. BENNI:IT,
Trial Examiner.
Dated July 28, 1948.