The J. & H. Clasgens Co.

National Labor Relations Board - Board Decisions

May 25, 1944

56 N.L.R.B. 898 (N.L.R.B. 1944)

In the Matter of THE J. & H. CLASGENS COMPANY and TEXTILE WORKERS
UNION OF AMERICA, CIO
Case No., 9-C-1925.-Decided May 25, 1944
DECISION
AND
'ORDER
On January 28, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in_uiifair labor -practices affecting
commerce and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy, of the Inter-
mediate Report annexed hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Board has considered the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The Trial
Examiner's rulings are hereby affirmed; No request-for oral argument
was made by any party.
The Board has considered the Intermediate' Report,'the exceptions
and brief filed by the respondent, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, except as modified below :
The Trial Examiner has found that, by depriving strikers Otis
Hamilton , George Kelch, and other strikers not reinstated upon aban-
donment of the strike of their, status as laid-off employees and, by
depriving all strikers of their seniority standing because they had
engaged in a strike, the respondent discriminated against all said
employees, within the meaning of-Section 8 (3) of the Act. He has
recommended, inter alia, that the respondent be required to restore
seniority rights to all said employees and to place them on a prefer-
ential hiring list. We agree that the respondent unlawfully discrimi-
nated in the manner set forth above against all the strikers. However,
since only two strikers, Hamilton and Kelch, are named in the- com-
plaint as having been discriminated against, our finding of discrimi-
nation and our remedy shall be limited to them. We shall therefore
order the respondent to restore the pre-strike seniority status of Hamil-
ton and Kelch, to place their names on a preferential hiring list, and
56 N L. R. B., No., 161. '
898
THE J . & H. CLASGENS COMPANY 899
thereafter offer them employment to their former or substantially
equivalent positions as such work becomes available, without discrimi-
nation against them because of their concerted activity or union mem-
bership, and before new persons are hired for such work, following the
system of seniority heretofore applied in the conduct of the respond-
ent's business. If, since the hearing, the respondent has hired any
new employee, or has reinstated any employee with less seniority than
Hamilton and Kelch, to fill jobs formerly held by Hamilton or Kelch,
or for substantially equivalent jobs to which Hamilton or Kelch would
be entitled under said system of seniority, said new employee of
reinstated employee, as the case may be, shall, if necessary to provide
employment for Hamilton or Kelch, be dismissed.
ORDER
I
Upon the entire record in the case, and pursua int to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, J.•& H. Clasgens Company,
New Richmond, Ohio, its officers, agents, successors, and assigns, shall :
1.' Cease and, desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica or any other labor organization of its employees, by discriminating
in regard to the hire or tenure of employment of any of its employees,
or any term or condition of their employment;
(b) 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 labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
'2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Restore'Otis Hamilton and George Kelch to the seniority status
they would'now have if it were not for the respondent's,discrimination
against them;
(b) Place the ,names of Otis Hamilton and George Kelch upon a
preferential list and thereafter offer them employment as it becomes
available, in the manner hereinabove set forth; and, immediately rein-
state said employees in the event any person has been employed since
the bearing herein to fill' the jobs formerly, held by Otis Hamilton and
George Kelch, or jobs substantially equivalent thereto, in the manner
hereinabove set forth;
(c) Post immediately in conspicuous places throughout its plants
at New Richmond, Ohio, and maintain for at least sixty (60) consecu-
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive days from the date of posting, notices to its employees stating:
(1) that the respondent will not engage in,the conduct from which it
_is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) of this Order; and, (3) that the
respondent's employees are free to remain and become members of
Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, and that the respondent will not discrimi-
nate against any employee because of his membership in or activity
on behalf of that organization, or because of any similar concerted
activity;
(d) Notify the Regional Director for the Ninth Region, in writing,
within ten (10) days' from the "date of this Order, what steps the
respondent,has taken"to comply herewith.
CHAIRMAN MILLis took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. John W. Coddaire, Jr., for the Board.
Mr. Raymond J. Kunkel, of Oncinnati, Ohio, for the Respondent.
Mr., Russel Quackenbush, of Cincinnati, Ohio, for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on November 5, 1943, by Textile
Workers Union of America, affiliated with the Congress of Industrial Organiza-
tions, herein called the Union, the National Labor Relations Board, herein called
the Board, by its Acting Regional Director for the Ninth Region -(Cincinnati,
Ohio), issued its complaint on November 16, 1943, against The J & H Clasgens
Company, New Richmond, Ohio, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8-(1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and the second amended charge, with notice of hearing thereon,
were duly served upon the respondent and the Union. k
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent on or about August 3, 1943, discharged Otis Hamilton and,
George Kelch' and thereafter refused to reinstate them because they, and each
of them, had joined and assisted the Union and had'engaged in concerted ac-
tivities with other employees for the purposes of collective bargaining and other
mutual aid or protection. . During the hearing, the respondent filed its answer
denying that it had engaged in the alleged unfair labor practices:
Pursuant to notice, a hearing was held at New Richmond, Ohio, on November
29, 1943, and at Cincinnati, Ohio, on November 30, 1943, before Howard Myers, the
undersigned Trial Examiner duly designated by the Chief Trial Examiner. The
Board 'and the respondent were represented by counsel and the, Union by a
representative. All parties participated in the hearing and full opportunity, to
be heard, to examine and cross-examine witnesses and to introduce evidence
'Referred to in 'the second amended charge and in the complaint as Bud Reich.
THE J. & H. CLASGENS COMPANY ' 901
bearing upon the issues was afforded them. At the end of the Board ' s case,
counsel for the respondent moved to dismiss the complaint for lack of proof.
The motion was denied. At the conclusion of the hearing, Board's counsel
moved to conform the complaint to the proof and respondent's counsel moved
to conform the answer to the proof. Both motions were granted without objec-
tions. Respondent's counsel then renewed the motion made at the close of the
Board's case to dismiss the complaint for lack of proof. Decision thereon was re-
served. The motion is hereby denied. Oral argument, in which all parties
participated, was heard at the conclusion of the taking of evidence and is incor-
porated in the record. The parties were granted leave to file briefs with the un-
dersigned on or before December 11, 1943. A brief has been received from counsel
for the respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
The J. & H. Clasgens Company, an Ohio corporation, owns and operates two
plants 3 at New Richmond, Ohio, where it is engaged in the manutacture, sale,
and distribution of woolen yarn. The respondent's annual gross sales exceed one
hundred thousand dollars, of which more than 75 percent in value are shipped
to points outside-the State of Ohio. Approximately 50 percent in value of the
respondent's annual purchases are shipped to its New Richmond, Ohio, plants
from points outside the State of Ohio. '
The respondent conceded at the hearing that it is engaged in commerce within
the meaning of the Act. '
H. THE ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of the
respondent.
HI THE UNFAIR LABOR PRACTICES
A. Sequence of Ezents
There is no evidence in the record of any concerted or union activity among
the respondent's employees prior to July 1943. During that month several of
the production employees of the River plant applied to the management for wage'
increases. The requests were refused. On July 27, because of the respondent's
refusal to grant the requested wage increases, about 25 or 30 of the then approxi-
mately 116 production employees went out on strike.' Otis Hamilton, a carder
in the River plant, and George Kelch, a spinner in that plant, were among the
strikers.
Shortly after the strikers had left the plant, Joseph Clasgens, the respondent's
president, met Hamilton on one of the streets of New Richmond and inquired
2 The findings in this section are based upon a stipulation entered into by the parties at
the hearing
8 One plant is known as the River plant and the other as the Hill plant . Most of the
respondent's.work is performed at the River plant where most of the employees work.
4 At the hearing , Board's counsel stated that this was an economic strike and that it was
not the Board's contention that the strike was due to any unfair labor practices of'the
respondent.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of him why the men had struck.' • Hamilton replied that the men wanted their
wages increased 7Y2 cents per hour. Clasgens said that the respondent could
not afford to grant the demanded increase and that, even if it could, the respond-
ent could not do so without first securing the approval of the National War, Labor
Board. Before departing, Clasgens asked Hamilton to return to work and also
requested him to persuade the other strikers to do likewise. Hamilton replied
that neither he nor the other strikers would return until their demands had been
met. On the following day, Clasgens again asked Hamilton to return to work
and to use his influence with his co-strikers so that work at the plant could
rd l urn to normalcy. Hamilton again stated that none of the strikers would return
to work until their demands were met. During this latter conversation, Clas-
gens, after concluding that Hamilton was adamant in his refusal to return to work
until the demanded' wage increases were granted, stated that if Hamilton did
not want to return to the plant, he would help him obtain employment elsewhere
and would give him the necessary certificate of availability. Hamilton replied
that he did not care to seek employment elsewhere and that he would return to
the plant as, soon as the respondent granted the demanded wage increases.
On July 29, the strikers returned to the plant to obtain the wages due them."
After receiving their pay, Clasgens offered to increase their wages 31/2 cents
per hour if the strikers would return to work This offer the men refused, stat-
ing that they would not return to work until the respondent agreed to pay the
increases demanded. The men then left the plant. On the following day,
Clasgens, at the request of a striker, met with the-strikers and again agreed to
increase the wages 31/ cents per hour if the strike was terminated. Again the
proposed increases were declined.
Pursuant to a telephone call made by Hamilton on,July 29, to the Union's
Cincinnnati headquarters,' Carl Johnson, a representative of the Union, met
with the strikers in New Richmond on July 30. This meeting was attended
by practically all the strikers After all those present had signed membership
application cards and had explained to Johnson the reason for the strike,
Johnson informed the strikers that even if the respondent granted them an,
increase in wages it would have to be approved by the Nbtional War Labor
Board and suggested that they attempt to sign up a majority of the employees
and distributed membership application cards 'for this purpose. Johnson then\
said that if the majority of the employees were signed up upon his return to
New Richmond the, following Monday that he "would contact the Company and
notify them that we represent a majority of the workers, and call the strike off,
and also negotiate for an agreement."
On July 31, while Clasgens was conferring with the plant's superintendent and
two foremen regarding certain plant problems, one of the respondent's largest
customers called Clasgens on the telephone and requested him to cancel a large
order which this customer had placed with the respondent on June 17, 1943.
This request was agreed to by Clasgens for, as he testified, business reasons.
Because of this cancellation,'the recent collapse of Italy,' and the unsatisfactory
financial condition of the account of another large customer,' Clasgens and his
5 Evidently Clasgens was under the impression that Hamilton was the one who induced
the men to leave the plant. The record does not support this impression. After the strike,
however, Hamilton did become the leader of the strikers.
9 Thursday is the respondent's pay day
4 New Richmond is a town of approximately 1700 people and is located about 25 miles
from Cincinnati.
8.The respondent was engaged then in the manufacture of woolen yarns which it sold
almost exclusively to firms working on government contracts.
THE J. & H. r CLASGENS COMPANY 903
conferees decided to retrench and cut down the work week at the River plant
from 80 hours to its pre-War schedule of 563/4 hours. This step necessitated
the elimination of the second shift10 Later that morning a notice reading as
follows was'posted on the bulletin boards:
Due to uncertainty of additional future orders we are discontinuing at noon
today our 80 hour working schedule
Beginning Monday morning, August 2nd, working hours will be:
7 A. M. to 12 Noon. 12:'45 P. M. to 6 P M.
Saturday 6. 30 A M to 12 Noon
Those for whom we do not have employment can secure their availability
slip at the office.
On Monday, August 2, a letter reading as follows was sent to the strikers:
On Saturday, July 31st, at 11: 00 A. M. we posted a notice on the clock
stating that we were discontinuing at noon of that day our -80 hour weekly
schedule and were returning to a 563/4 hour weekly schedule which means a
smaller working force.
We regret that this decision was necessary because of the uncertainty of
the outlook for new business brought about by the recent conversations
with our customers and the collapse of Italy.
The notice also advised employees to call at the office for availability
slip so that -they could seek employment elsewhere if they desired. Since
after Saturday, July 31st, we would not have and will not have any work
for them in the future
Those employees given availability slips received them because they were
the last employed by us and we believe it fair'that they should be the first
to leave. Since you did not call for your slip it was mailed to,,you this
morning.
On the morning of August 2, Johnson and Russel Quackenbush, an interna-
tional representative of the Union, met with the strikers. Quackenbush "recom-
mended" that, the strike be called off and stated that the Union "would repre-
sent them and take their case to'the War Labor Board and-see what could be
done." By noon that day; Quackenbush reported to the strikers that a majority
of the employees of the 2 plants had signed application cards for membership
in the Union. It was then agreed that Quackenbush and Johnson should notify
the respondent that the strike was terminated and that the men were ready to
return to work.
Shortly thereafter, Quackenbush and Johnson met with Clasgens. Quacken-
bush informed Clasgens that the Union represented a majority of the'employees,
that the strike was officially called off, and that the men "were willing and ready
to go back to work at once."'= With respect to his discussion with Quacken-
° This particular customer was then indebted to the respondent in the sum of approxi-
mately $20,000 and Clasgens decided at that conference that the respondent would not
continue to manufacture any more merchandise for this firm until satisfactory financial
arrangements could be made. As was summed up by Clasgens • "The stock market had
started down . . and to me it looked like the early end of the war and was the signal
for us to pull in our horns
is Since the war the River and the Hill plants had been working on a 2 shift basis.
About September 1, 1943, the Hill plant was also placed on a 56 4 hour basis and its
second shift eliminated t
" Prior to the new schedule the plant operated from 7 a in to 10 p in. The first shift
-worked'from 7 a.. nn' to 6 p in and the second,shift,from 11 a in to 10 p•m' The em-
ployees alternated weekly from the first to the second shift and vice versa.
12 Quackenbush also requested Clasgens to enter into negotiations for a collective bargain-
ing contract , but Clasgens stated that the respondent was unwilling to recognize the Union
as the exclusive representative of the employees absent a certification from the Board.
I
904 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
bush regarding the taking back of the strikers, Clasgens testified that "Quack-
enbush again said that the strike was off and wanted to know if we would take
all of the men back and I said, `No', and he said, `Shall I call this a lock-out?' I
says, `No', and he says, `What do you wanna call it?' and I says, `Call [it] anything
you like. We are going to take back some-those we can use.' So, with that, I
think he left."
On the evening of August 2, after learning that the strike had been terminated,
John R. Erdman, the foreman of the carding room, notified several of the strik-
ing carding room employees to return to work. Hamilton was not so notified.
The evidence indicates that prior to the strike about 9 employees worked in Erd-
man's department at the River plant." About 6 of the employees were card op-
erators and the balance were strippers. All of these employees, with one excep-
tion, had gone on strike. With the shortening of the work-week, the respondent
apparently had need for only 4 card operators and 2 strippers. Of the card op-
erators all 4 recalled had more seniority than Hamilton. Of the strippers re
called one had more seniority than Hamilton and the other less seniority. Ham-
ilton was the oldest in seniority of the card room employees not recalled.
Early in September, William Davis, a River plant carder, quit his employment
to return to school. At about the same time, the respondent reduced its work-
week at, the Hill plant to conform to the work-week at the River plant and also
eliminated the second shift there. At the Hill plant the respondent, employed 2
carders, one on each shift, and since one shift was being eliminated the job of
Clifford Merckle, the younger in seniority of the 2 carders, was being, eliminated.
Merckle had been hired by the respondent about 31/2 weeks after Hamilton and
after learning at the River plant how to operate a carding machine was trans-
ferred to the Hill plant. Since Davis was leaving his position as carder, in the
River plant and Merckle's job was being eliminated, the respondent transferred
Merckle to Davis' job.
Clasgens testified that he suggested to both Erdman and Harold R. Vicroy,
the foreman of the River plant spinning department, that they recall such strik-
ers as they needed in the order of seniority. The record shows'that Erdman did
so with respect to the carders. Vicroy testified that he just took back all those
striking spinners who reported for work after the strike was called off. The evi-
dence indicates that about 20 spinners worked under Vicroy's jurisdiction in
the River plant and that about 8 of them went on strike, including Kelch. Vic-
roy testified that he reinstated from 3 to 5 strikers who reported for work after
the strike and that Kelch was not among those. Kelch's seniority dated from
May 4, 1943, thus giving him comparatively little seniority. The record is not
entirely clear as to whether the 3 to 5 reinstated spinners had more seniority than
Kelch although it appears that they did. There is no affirmative showing by the
Board however, that any of these reinstated spinners had less seniority than
Kelch. The record, however, is clear that on September 29, the respondent took
on an employee, Ethelyn Jefferson, who had been on leave of absence, as an ap-
prentice spinner ; that on October 4, it hired Dorothy Johnson as an apprentice
spinner who had never previously worked for the respondent; that on the same
day, it rehired Marilyn Ireton as a 'finished spinner, but who had evidently
been on leave of absence and whose seniority dated from June 3, 1442 ; and that
on October 22, it rehired Donald Cornell, who had been on strike and whose sen-
iority prior to the strike predated that of Kelch.
11 Erdman was also the foreman of the Hill plant raiding room
THE-J.,& H. CLASGENS COMPANY 905
B: Concluding findings
The complaint alleges that Hamilton and Kelch were discharged and there-
after refused reinstatement because they engaged in concerted activities with
their fellow employees At the hearing, Board's counsel contended that-the
respondent was motivated by its anti-union animus in refusing to recall or give
work to Hamilton and Kelch after the strike In support of this contention
he argued that (1) in putting some of the strikers back to work after the strike
the respondent, deviated from its past policy with respect to recalling employees
after a layoff, for it had always been the respondent's policy to rehire laid off
employees in accordance with, their senior ty, (2) that it transferred Merckle
from the Hill plant to the River plant and placed him in Davis' job without
considering Hamilton for that job, despite the fact that -Hamilton had more
seniority than Merckle, and (3) instead of recalling Kelch, the respondent hired
several new apprentices. The credible evidence shows that • the respondent's
policy with respect to layoffs due to lack of work was to retain those with the
most seniority and its policy with respect to rehiring after a layoff was to rehire
those persons who had been in its employ the longest" Thus, it is clear that
when Erdman recalled the striking, carders he followed the respondent's rehiring
policy, explicitly and therefore Hamilton was not discriminated against then.
With respect to the strippers, Erdman did not follow the rehiring policy for he
reinstated one striking stripper who had less seniority than Hamilton. Since
Hamilton, who had more seniority than the rehired stripper in question, was
not a stripper and the record does not disclose whether Hamilton could perform
that task, or whether lie would have accepted the job if it were offered to him,
it can not be said that he was thus discriminated against The, Board claimed
discrimination against Hamilton in that he was not given Davis' job when Davis
left the respondent's employ early in September. Merckle, who had about 3%
weeks less seniority than Hamilton, was transferred from the Hill plant to the
River plant and placed in Davis' job Erdman testified, and the undersigned
finds, that after Merckle had, completed his training period at the River plant
he was transferred to the Hill plant, that there Merckle performed his work
without the necessity of Erdman being there to aid or supervise him; that
the carding machines at the Hill plant are more difficult to operate; and that
Erdman wanted to retain Merckle so that in case the remaining Hill plant
carder was absent or quit, Erdman could send Merckle to the Hill plant to
perform that man's job On the other hand there is no evidence that Hamilton
could operate the Hill plant carding machines. -
With respect to Kelch, there is no evidence that any striking spinner with
less seniority than he was reinstated 'by the respondent after the strike. There-
fore it can not be said that Kelch was discriminated against when the re-
spondent reinstated the 3 to 5 striking spinners. Nor was Kelch discriminated
against when the respondent hired Jefferson and Johnson as apprentice spinners
and Cornell and Ireton as finished spinners. The respondent always had in
its employ a certain number of apprentice spinners and when vacancies occurred
they were replaced by apprentices There was no showing that Kelch's posi-
tion was equivalent to that of an apprentice spinner. In regard to Ireton
it appears that she had been on leave of absence and that her seniority was
greater than that of Kelch. Likewise, Cornell, a striking spinner, had more
seniority than Kelch. -
" Clasgens testified that the respondent 's rehiring policy after a layoff is to rehire "the
oldest ( in seniority ) and the ablest " employees first He further testified that more weight
is given to seniority than to ability
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no doubt that Hamilton and Kelch were the most active union men
among the strikers.' Hamilton was considered the spokesman of the strikers prior
to the advent of- the Union and was responsible for the Union's representatives
coming to New Richmond. Kelch.was responsible for signing up more union mem-
bers than any other individual. Furthermore, Hmnilton and Kelch were mem-
bers of the Union's negotiating committee and this fact was communicated to
Clasgens by Quackenbush and Johnson at the August 2 meeting at the plant.
At the hearing, Clasgens consistently took the',position that the strikers had'
quit their employment and by striking had lost their seniority and the right to
be considered as employees. Section 2 subdivision (3) of the Act provides: "The
term `employee' . . . shall include any individual whose work has ceased
as a consequence of, or in connection with any current labor dispute ..:'
Thus,' notwithstanding the respondent's position. Hamilton and Kelch remained
employees of the respondent despite their participation in an economic strike.'
Section 7 of the Act protects employees in their right "to engage in concerted
activities, for the purposes of collective bargaining or other mutual aid or pro-
tection." Thus, since the strikers had called off the strike and unconditionally
offered to return to work they remained employees for the purpose of future
reinstatement rights, without loss of their seniority or other rights or privileges,
and were and are entitled to the normal reinstatement rights of any laid off em-
ployee in-accordance with the respondent's usual seniority practices. I
It seems fairly clear from the entire record that the respondent failed to con-
sider Hamilton as a laid off employee at'the time 'it' placed Mcrckle in Davis' job
because Hamilton had participated in a strike. This constituted, under the cir-
cumstances described above, an act of discrimination However, although the
respondent failed to consider Hamilton at this time, it would be pure speculation
and conjecture whether if it had considered Hamilton, the respondent would
have given him Davis' job instead of Merckle This is true because Merckle had
unusual qualifications for the job although slightly less seniority than Hamilton
It appears from the entire record that purely as a result of fortuitous circum-
stances, neither Hamilton nor, Kelch were in fact discriminated against in re-
gard to actual vacancies.which occurred subsequent to the strike and up to the
time of the hearing. Therefore, the undersigned will not recommend immediate
reinstatement. However, it is clear that the respondent does not consider either
Hamilton, Kelch, or the other non-reinstated strikers as laid off employees and
has, deprived them of all rights in this respect because of their 'concerted or
Union activities. This is clearly borne out by the case of Donald Cornell, a
striking spinner, who was' reemployed by the respondent as of October'22, 1943.
Cornell's seniority at the time of the strike dated back to August 19, 1942. Yet,
at the hearing Clasgens admitted that'the respondent now lists Cornell as having
seniority from the date he was reemployed on October 22. Asked the reason for
this Clasgens testified that. Cornell "quit when he went out on strike and be came
back and that is his seniority." By so doing the respondent has discriminated
against Hamilton and Kelch in regard to their hire and, tenure of employment
and the terms and conditions of employment, thereby discouraging membership
in the Union, and interfering with, restraining, and coercing its. employees in
the exercise of the rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A, above occurring in
connection with the operation'of the respondent, 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 ob-,
structing commerce and.the free flow of commerce.
THE J. & H. CLASGENS COMPANY " 907
V. THE REMEDY
Having. found that the respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action which the undersigned finds will effectuate the policies
,of the Act.
It has been found that the, respondent, by depriving the strikers of their status
of employees discriminated in regard to their hire and tenure of employment.
Since it•has:been found that the respondent has not discriminated against
Hamilton and Kelch so far as available positions were concerned prior to the
hearing, it will not be recommended that they be given immediate reinstate-
ment. However, since it has been found that Hamilton and Kelch and the other
striking employees not yet reinstated are still employees of the respondent and
that they are entitled to reinstatement as soon as jobs for them become avail-
able, it will be recommended that their names be placed upon a preferential list
and offered employment to their former or substantially equivalent positions as
such employment becomes available and before other persons are hired for such
work, in order of their respective seniority prior to the strike. If the respondent
since the hearing has hired any new employees, or has reinstated any'employees
with less seniority than Hamilton and Kelch or other striking employees, not yet
reinstated to fill the jobs that such striking employees held, or substantially
equivalent jobs, such employees shall, if necessary to provide employment for
the said striking employees, be dismissed.
Upon the.basis-of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America, affiliated with the Congress of In-
dustrial Organizations, is a labor organization within the meaning of Section 2
(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment 'or the
terms' and conditions of employment of Otis Hamilton and George Kelch and
thereby discouraging membership in Textile Workers Union of America, the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and'is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of,the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, J & H. Clasgens Company of
New Richmond, Ohio, its officers, agents, successors, and assigns shall:
1. Cease and desist from : .
('a) Discouraging membership in Textile Workers Union of America or any
other labor organization of its employees, by discriminating in regard to the
hire or tenure of employment, or the terms or conditions of employment, of any
of its employees ;
(b) In any other manner interfering with, restraining, or coercing its
employees in the exercise of their right, to self-organization, to form, join, or
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N
908, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist labor organizations, to bargain collectively through representatives of their
choosing, and td engage in concerted activities for the purpose of collective
bargaining or other mutual'aid.and protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Restore Otis Hamilton and George Kelch and all the other employees
who participated in the strike of July 27, 1943, to the seniority status which they
would now have if it were not for the respondent's discrimination against them;
(b) Place the names of Otis Hamilton, George Kelch, and the other parti-
cipants in the strike of July 27, 1943, who have not thus far been reinstated
upon a preferential list and thereafter offer them, employment as it becomes
available, in the manner set forth in the section entitled "The Remedy", and
immediately reinstate said employees in the event new, employees have been
hired since the hearing herein to fill the jobs formerly held by the said employees,
or jobs substantialy equivalent thereto, in the manner set forth in said section ;
(c) Post immediately in conspicuous places throughout its New Richmond,
Ohio, plants, and maintain for at least sixty (60) consecutive days from the
date of posting, notices to its employees stating: (1) that the respondent will
not engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 (a) and (b) of these recommendations; (2) that the respondent
will take, the affirmative action set forth in paragraph 2 (a) and (b) of these
recommendations; and (3) that its employees are free to remain or become
members of Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, and that the respondent will not discriminate against
any employee because of membership or activities in that organization ;
(d) Notify the Regional Director for the Ninth Region, in writing within
'ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith ;
It is further recommended that unless on or before ten (10) 'days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may,within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section
32, of Article II of said Rules and Regulations, file with the Board, Rochamheau
Building, Washington, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record.of proceeding (including rulings upon all motions or objec-
tions) as he relies upon, together with the original and four copies of a brief
in support thereof. Iriimediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve 'a
copy thereof upon each of the other parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire per-
mission to argue orally before the Board request therefor must be made in writ-
ing to 'the Board within ten (10) days from the date of the order transferring
the case to the Board.
Dated January 28, 1944.
HOWARD MYEas,
Trial Examiner.