Washington Aluminum Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1960

126 N.L.R.B. 1410 (N.L.R.B. 1960)

1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consistent with Board policy set out in F . W. Woolworth Company, 90 NLRB 289,
and Crossett Lumber Company, 8 NLRB 440. It will also be recommended that
the Respondent , upon request , make available to the Board and its agents all
payroll and other records pertinent to the analysis of the amounts of backpay due
and the right of reinstatement.
Since the violations of the Act which the Respondent committed are related
to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct,
the preventive purposes of the Act may be thwarted unless the recommendations
are coextensive with the threat . To effectuate the policies of the Act, therefore, it
will be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Lewis
Werner in June 1958, and the employees named herein in Appendix A on and after
December 15, 1958, thereby discouraging membership in the above -named labor
organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. All production , maintenance , and shipping and receiving employees employed
by the Respondent at its Clifton plant , excluding office clerical employees , salesmen,
guards, watchmen , professional employees , foremen, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 8(b) of the Act.
4. On June 3 , 1958, and at all times since that date, the above-named labor
organization has been and now is the exclusive bargaining representative of all
employees in the above-described unit for the purposes of collective bargaining
with respect to rates of pay , wages, hours of employment , and other terms and
conditions of employment , by virtue of Section 9(a) of the Act.
5. By refusing , on June 3, 1958 , and at all times thereafter, to bargain collectively
with the aforesaid labor organization , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. 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.
7. 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 omitted from publication.]
Washington Aluminum Company, Inc. and Robert A. Heinlein,
Frank J . Adams , Frank Olshinsky, Warren A. Hovis, Augus-
tine Affayroux , Sr., William George , Jr., J. Alfred R. Caron
Washington Aluminum Company, Inc. and Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO, Peti-
tioner. Cases Nos. 5-CA-1498 and 5-RC-268f. March 31, 1960
DECISION, DIRECTION, AND ORDER
On September 11, 1959, Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled consolidated proceedings,
finding that the Respondent had engaged in and was engaging in cer-
126 NLRB No. 1,62.
WASHINGTON ALUMINUM COMPANY, INC. 1411
tain unfair labor practices in violation of the Act and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report. The Trial Ex-
aminer further found, in effect, that the challenges to certain ballots
in the representation proceeding should be overruled. Thereafter,
the Respondent filed exceptions to the Intermediate Report and it brief
in support thereof.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this proceeding,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following
modification.
The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (1) in terminating the employment of the seven
complainants who were engaged in protected concerted activity under
the Act. We rely, inter alia, upon the following : The credited testi-
mony of employee Hovis that "We all got together and thought it
would be a good idea to go home; maybe we could get some heat
brought into the plant that way"; the credited testimony of employees
Heinlein, Caron, and George as to previous complaints made to the
Respondent's foremen over the cold working conditions, and to the
effect that the men left on the morning of January 5 in protest of the
coldness at the plant; and the evidence that the seven complainants
left the shop at approximately the same time.a
Case No. 5-RC-2682
The Challenges
The Trial Examiner found that Robert A. Heinlein, Frank Olshin-
sky, Augustine Affayroux, Sr., and Warren A. Hovis, whose ballots
were challenged, were entitled to vote. We agree, as they were un-
lawfully discharged or laid off before the election and, therefore,
retained their status as employees eligible to vote.
[The Board directed that the Regional Director for the Fifth
Region shall, within 10 days from the date of this Direction, open and
count these ballots.] -
i The Respondent 's request for oral argument is denied as the record , the exceptions,
and the brief adequately present the issues and the positions of the parties.
2 See Southern Silk Mills, Inc, 101 NLRB 1, enfd. 209 F. 2d 155 ( C.A. 6) , Metco
Plating Company, 113 NLRB 204, enfd 239 F. 2d 642 (CA. 6). Cf Knight Morley
Corp., 116 NLRB 140, enfd . 251 F 2d 753 ( CA. 6), cert. denied 357 U.S . 957, involving
Section 502 of the Act, which in oui opinion would not be applicable in the instant case
if alleged.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Wash-
ington Aluminum Company, Inc., Baltimore, Maryland, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees by discrim-
inatorily discharging any of its employees, or by discriminating in
any other manner in regard to their hire or tenure of employment or
any term or condition of employment.
(b) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of their right to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Robert A. Heinlein, Frank J. Adams, Frank Olshin-
sky, Warren A. Hovis, Augustine Affayroux, Sr., William George,
Jr., and J. Alfred R. Caron immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges discharging if necessary any
employees hired to replace them.
(b) Make whole said employees in the manner set forth in the
section of the Intermediate Report entitled "The Remedy" for any
loss of pay they may have suffered by reason of Respondent's dis-
crimination against them.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and determine the amount of
backpay due.
(d) Post in its plant in Baltimore, Maryland, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent's representative, be posted by it
immediately upon receipt thereof, and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
IIn 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 Ordei "
WASHINGTON ALUMINUM COMPANY, INC. 1413
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.
(e) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply therewith.
MEMBERS RODGERS and JENKINS took no part in the consideration of
the above Decision, Direction, and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage concerted activity by discriminatorily
discharging any of our employees or in any other manner dis-
criminating against them in regard to their hire or tenure of
employment or any other term or condition of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and 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 employment as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL offer to Robert A. Heinlein, Frank J. Adams, Frank
Olshinsky, Warren A. Hovis, Augustine Affayroux, Sr., William
George, Jr., and J. Alfred R. Caron immediate and full rein-
statement to their former or substantially equivalent positions
Without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination, discharging if neces-
sary any persons hired to replace them.
WASHINGTON ALUMINUM COMPANY, INC.,
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.
554461-60-col 126-91
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On February 26, 1959, a charge was formally filed in the Fifth Region of the
National Labor Relations Board (herein called the Board) at Baltimore, Maryland,
averring that Washington Aluminum Company, Inc., Baltimore, Maryland (herein
called Respondent), had discriminatorily discharged Robert A. Heinlein , Frank J.
Adams, Frank Olshinsky, Warren A. Hovis, Augustine Affayroux, Sr.,' William
George, Jr., and J. Alfred R. Caron on January 5, 1959, in violation of the National
Labor Relations Act, as amended (herein called the Act) .2 The matter was docketed
as Case No. 5-CA-1498. Thereafter the Regional Director for the Fifth Region
issued a complaint dated May 15, 1959, caused a copy thereof together with a
notice of hearing, setting the hearing for July 15, 1959, to be duly served. The com-
plaint alleged that the Respondent, by reason of the aforementioned discharges, had
engaged in unfair labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
On May 21, 1959, the Respondent filed an answer.
The following information relating to a case docketed in the Fifth Region of the
Board as Case No. 5-RC-2682 is not here reported as "findings" because it is not
based on testimony adduced before the Trial Examiner but reported as taken from
the formal documents introduced at the hearing before the Trial Examiner on
August 3-4, 1959, and is here recited as necessary for a complete understanding of
all matters to be covered by this report.
On February 26, 1959 (the same date as the charge in Case No. 5-CA-1498 was
filed), the Respondent and Industrial Union of Marine & Shipbuilding Workers of
America, AFL-CIO 3 (herein called the Union), signed a stipulation for certifica-
tion upon consent election, in the matter docketed in the Fifth Region as Case
No. 5-RC-2682. The formal documents do not disclose the date the petition in
Case No. 5-RC-2682 was filed. The Regional Director approved the stipulation
on March 9, 1959. On March 17, pursuant to the stipulation, an election was con-
ducted; the vote as shown by the tally of ballots showed 68 votes 4 for the Union,
70 votes against the Union, and 5 challenged ballots.
No objections were filed within the time prescribed by the Board's Rules, how-
ever, on March 30 the Union objected to the ruling made at the election by the
Board's agent with respect to the validity of two ballots as marked by voters; the
Regional Director treated the Union's objection as objections to the conduct of the
election, affecting all matters disputed at the election. He ruled on the two ballots
and on the eligibility of one of the voters challenged, and as to the four remaining
challenged voters, whose ballots were impounded, he, under date of June 11, 1959,
recommended to the Board that Case No. 5-RC-2682 be consolidated for hearing
with Case No 5-CA-1498 (in which he had issued a complaint on May 15, and
which was set for hearing on July 15). The consolidation was asked "solely with
respect to the eligibility to vote" of the four challenged individuals who are also
named as discriminatorily discharged in the complaint in Case No. 5-CA-1498.
The Regional Director's report on challenges as made to the Board stated "the
eligibility to vote of these four voters depends, therefore, upon the resolution of the
unfair labor practice case."
On June 30, the Board ordered a hearing before a Trial Examiner "to resolve
the issues raised on the eligibility to vote of Robert A. Heinlein , Frank Olshinsky,
Augustine Affayroux, Sr., and Warren A. Hovis, and that such hearing be con-
solidated with . Case No. 5-CA-1498."
Pursuant to notice, a hearing was held on August 3 and 4, 1959, before Louis
Plost, the duly designated Trial Examiner, at Baltimore, Maryland.
The General Counsel, the Respondent, and the Charging Parties (in Case No.
5-CA-1498) were all represented by counsel and the Union involved in Case
No. 5-RC-2682 by its regional director.
All the parties participated and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence pertinent to the
1 This Charging Party was inadvertently designated "Afferoyrux" in the formal docu-
ments. The correction is hereby made.
2 The employees named as having been illegally discharged were, Robert A Heinlein,
Frank J. Adams, Frank Olshinsky, Warren A. Hovis, Augustine Affayroux, Sr., William
George, Jr, and J Alfred R Caron.
3 The Union was inadvertently designated "International " The error is hereby corrected.
4 The Regional Director ruled 1 of the challenged ballots valid, therefore the count
stood 69 for and 70 against.
WASHINGTON ALUMINUM COMPANY, INC. 1415
issues. Oral argument was presented by the General Counsel and the Respondent.
A brief was received from the Respondent on August 27, and from the General
Counsel on August 31, 1959.
At the opemng of the hearing the formal documents were introduced by the
General Counsel. They consisted inter alia of the complaint as issued in Case No.
5-CA-1498 and the answer filed thereto, the Board's order for hearing Case No.
5-RC-2680, and the order consolidating hearings.
No evidence was adduced except that required to sustain the allegations of the
complaint in Case No. 5-CA-1498.5
At the close of the hearing the General Counsel moved to conform all the docu-
ments to the proof with respect to spellings, dates, and hke matters and to correct
the errors as to the Union and Affayroux. The motion was granted. The parties
argued orally. A date was set for the submission of briefs, findings of fact, and/or
conclusions of law.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
Case No. 5-CA-1498
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, and the answer admitted, that Respondent is and has
been at all times material herein a corporation duly organized and existing by virtue
of the laws of the State of Delaware, having its principal office and place of business
at Baltimore, Maryland, where it is engaged in the fabrication of aluminum products.
Respondent, in the course and conduct of its business operations, as described
above, during the preceding 12-month period, a representative period, shipped goods
and materials of a value in excess of $50,000 from its Baltimore, Maryland, plant
direct to customers located outside the State of Maryland.
Respondent is and has been at all times material herein engaged in commerce
within the meaning of Section 2(6) of the Act.
II. LABOR ORGANIZATION INVOLVED
No labor organization is alleged to be, nor was any proved to be, involved in
Case No. 5-CA-1498.
The formal documents in Case No. 5-RC-2682 show the petitioning union to be
Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO .6
III. THE UNFAIR LABOR PRACTICES
The Discriminatory Discharges
J. Alfred R. Caron testified that on January 5, 1959, he was a "leader" in the
machine shop, and had no authority to hire or fire employees, grant "time off," or
give permission to leave the plant. Caron further testified that on Monday, January
5, 1959, he arrived for work at 7:10 a.m., and the plant was very cold at the time;
that he (as was his custom) went to the office of Foreman David N. Jarvis adjoining
the machine shop; that he and Jarvis discussed "how cold it was and miserable"; that
during the conversation two of the employees walked by the office window (which
gave out into the plant) "huddled" and Jarvis observing them remarked, "If those
5 On August 18, 1959, the General Counsel moved to correct the transcript in certain
particulars. No objections have been filed. The motion is granted and the transcript
corrected as follows :
1. Page 15, line 2-insert the word "not" after the word "was" so that it reads
"was not a supervisor"
2. Page 40, line 21-change the figure "80" to "8".
3. Page 60, lines 22 and 23-"We didn't stand in one spot work. We had to move
around."-corrected to read "We stood in one spot and worked We didn't move
around."
4. Page 77, line 26-add the words "and get a doctor's certificate" so line 26
reads "And did you later go to the doctor and get a doctor's certificate'?"
5 Page 90, line 7-change word "relied" to "relayed."
6. Page 139, line 20-change the name "Caron" to "Tarrant" so that the name
is "Ray Tarrant."
See footnote 3.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fellows had any guts at all they would go home "; that following this remark he
(Caron ) returned to the machine shop , noted that six of the eight men who worked
there as machinists , namely the Charging Parties other than himself , were standing
together "shaking a little, cold"; that he came up to them and:
I told them , I said , "Dave told me that if we had any guts at all, we would
go home." And I said, "I am going home ." I said, "What are you fellows
going to do?"
Then they started talking among themselves saying, "Well, let's go."
And I started out first. And they were following behind me.
Caron further testified that as he was leaving he passed Jarvis to whom he said,
"Dave it is too cold , I am going home."
Caron admitted he did not have permission to leave and was familiar with the
standing company rule which required that permission of a foreman was required
in order to leave the plant.
About 9:30 a.m. Caron received a telephone call at his home from Jarvis who
told him that on orders of Fred N. Rushton, the Respondent's president, the seven
men who had left the plant that morning were discharged. Later in the day Caron
came to the plant and removed his toolbox.
Foreman Jarvis corroborated Caron's testimony with respect to Caron's conversa-
tion with him.
The six employees who followed Caron from the plant and who together with
Caron are the Charging Parties herein 7 corroborated Caron. All testified that the
plant was extremely cold, that they had no permission to leave, and that they knew
it was forbidden by plant rules to leave the plant without a foreman's permission.
All testified that they left the plant after Carson talked to them and after they had
discussed the matter among themselves.
On direct examination as a hostile witness by the Respondent, employee Warren
A. Hovis testified:
Q. (By Mr. Bair) Now, why did you leave the plant on Monday morning
with these other men?
A. Well, they said it was extremely cold. And we had all got together and
thought it would be a good idea to go home; maybe we could get some heat
brought into the plant that way.
There can be no doubt whatever on the record herein that on January 5 the
Respondent's plant was somewhat colder than usual.
William George, Jr., testified that when he arrived for work on January 5, he found
that ice had formed on the drain pipe of the spotwelder he operated in the machine
shop.
Wilhelm Tafelmair, the one machinist who did not leave the plant with the other
seven, testified that he worked in the machine shop, after the others left, wearing
his overcoat, which he had put on at the suggestion of Foreman Jarvis and wore it
at work until about 10:30 a.m.
Foreman Jarvis testified that when he arrived January 5, the plant was "extremely
'cold" and that the main furnace heating the plant was not operating; that at about
7:15 a.m. the plant's maintenance man arrived and got the furnace into operation
but that "it was after lunch time" before the men then working in the machine shop
could take off the excess clothing "bundling them up."
Vincent Battaglia, the Respondent's night watchman, testified that the heat in the
plant was customarily shut off during the night and that he turned it on at 5 a.m.;
that at 1 a.m., Sunday night, the "big furnace" would not operate nor could he get
it into operation at 5 a.m. when he again tried; that he reported this in the morning
to the maintenance man when he arrived who then "started working on the furnace."
Roy V. Rose, the Respondent's maintenance man, testified that on January 5,
at 7.15 a.m., he was informed that the furnace was not operating but that he had it
repaired and operating within "15 or 20 minutes." Rose testified further that it
would require 21/2 to 31/2 hours for the furnace to warm an area within a 50-foot
radius of it after it began operating.
Apparently unusually cold weather was expected for Monday. Fred N. Rushton,
the Respondent's president, testified he visited the plant at 10 p.m. Sunday, January 4,
because:
I had to talk to the watchman to make sure we get the heat on and see that
things are as good as we can get them and normal . Certainly you want to have
7 Of these , Heinlein and George were called by the General Coun.,e1 A dam- , Oi hineky,
Affayroux, and Hovis were called as hostile witnesses by the Respondent
WASHINGTON ALUMINUM COMPANY, INC . 1417
a warm shop. Plus the fact that we have pipes in there that may break if we are
not careful.
Foreman Jarvis testified that at "say 8:30" a.m. President Rushton arrived at the
plant; that he reported to Rushton that the seven machinists had left in a body due
to the cold; that Rushton ordered the discharge of the seven men who had left the
plant. Jarvis, however, testified that a meeting of supervision was first held in
Plant Manager Raymond Tarrant's office where he was told by Rushton to make
the discharges for the reason:
That they had left the premises unauthorized. And this curtailed our opera-
tion. And this they were discharged for.
Jarvis further testified that at "around nine o'clock" Affayroux returned to the plant,
told him he had only gone for coffee, and asked to be returned to work but that he
told Affayroux he had already been discharged on President Rushton's orders; that
following this conversation he telephoned to those of the seven men who had
telephones and sent telegrams to the others informing them they were discharged.
The discharges according to Foreman Jarvis were all made before any replace-
ments were hired to replace the seven men.8
Arthur Wampler, the Respondent's general foreman, testified that he took part
in the discussion to discharge the seven employees; that the decision was made
"between 9 and 9:30 by myself, Mr. Jarvis and Mr. Rushton" and that the men
were discharged "for violating plant rules, leaving the plant without permission, and
to maintain discipline." However, Wampler admitted that his three assigned rea-
sons were really but one, namely, "leaving the plant without permission."
President Fred N. Rushton testified that he arrived at the plant January 5, at 8:20
a.m. and was told by Jarvis that the machinists had "walked off"; that he then
told Jarvis, "Dave, if they have all gone, we are going to terminate them," that he
met with Jarvis and Tarrant, decided what action to take, and that he issued
instructions to discharge the men before he left at 9 a.m. Rushton testified:
Q. (By Mr. Bair.) What were your own reasons for making the decision
to terminate these men?
The WITNESS: The real reason is because they didn't inform the foreman of
the action they were taking.
The Trial Examiner is persuaded on all the evidence considered as a whole and
from his observation of the witnesses that Rushton's testimony that "the real reason
is because they didn't inform the foreman of the action they were taking" is merely
the statement of an afterthought.
It is clear that the seven men who walked out as a group in protest of their
working conditions were engaged in concerted activity protected by the Act,9 the
fact that they were discharged before they had an opportunity to formally elect a
committee to deal with the Respondent with respect to the adjustment of their
grievance (as argued by the Respondent) is of no moment.
The men were in reality discharged very soon after 8:20 a.m., Monday, January
5, 1959, by the man who had full authority to do so. Rushton, the official who is
referred to, testified:
And I came back in the shop. And when I came back in B shop again I
noticed all the people were out of the shop.
So Dave Jarvis was there. And I said, "Dave, where is everybody?"
He said, "They have all walked off."
I said, "We can't have that, Dave."
"Well," he said, "they have all gone."
I said, "Dave, if they have all gone, we are going to terminate them."
The complaint alleges and the Trial Examiner agrees that the evidence fully
proves that:
On or about January 5, 1959, Robert A. Heinlein, Frank J. Adams, Frank
Olshinsky, Warren A. Hovis, Augustine Affayroux, William George, Jr., and
J. Alfred R. Caron, Respondent's employees, did engage in a strike or con-
n Telegrams dated January 5, 1959 , were sent to Olshinsky , Adams , George, and Hovis.
Telephoned discharges were to Heinlein , Adams, and Caron. Affayroux was personally
notified.
O The General Counsel might well have raised a very interesting point of law had the
complaint been drawn under Section 502.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed refusal in the course of their employment to perform any services for
Respondent in protest of certain working conditions, to wit, the failure of
Respondent to supply adequate heat in their place of employment.
On the entire record considered as a whole, the Trial Examiner finds therefore
that the seven men (the Charging Parties herein) on January 5, 1959, by their
concerted activity as found herein, became and were economic strikers. The Trial
Examiner further finds that by reason of their being discharged before they were
replaced, they continued to so remain and were therefore unlawfully discharged
employees, and as such are entitled to all the rights and privileges of economic
strikers.
Concluding Findings on Case No. 5-CA-1498
On all the evidence considered as a whole, and from his observation of the
witnesses, the Trial Examiner finds that by the discharge of Robert A. Heinlein,
Frank J. Adams, Frank Olshinsky, Warren A. Hovis, Augustine Affayroux, Sr.,
William George Jr., and J. Alfred R. Caron, as herein found, the Respondent did
discriminate and is discriminating in regard to the hire and tenure and terms and
conditions of employment of the employees named above, thereby discouraging
concerted activity and did thereby engage in and is engaging in unfair labor practices
within the meaning of the Act. The Trial Examiner further finds that by such
conduct the Respondent did interfere with, restrain, and coerce and is interfering
with, restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act and thereby did engage in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
Case No. 5-RC-2682
The Board on June 30, 1959, having issued an order directing hearing in Case
No. 5-RC-2682 upon the issues raised on the eligibility to vote of Robert A.
Heinlein, Frank Olshinsky, Augustine Affayroux, Sr., and Warren Hovis, and di-
recting that such hearing be consolidated with the hearing in the complaint issued in
Case No. 5-CA-1498 solely with respect to such eligibility, and the Trial Examiner
having found on all the evidence adduced at the consolidated hearing in Case No.
5-CA-1498 and Case No. 5-RC-2682 consolidated, that the aforesaid Heinlein,
Olshinsky, Affayroux, Sr., and Hovis were, among others, employees of the Re-
spondent on January 5, 1959, and have continued to be employees of the Respondent
in the status of economic strikers, the Trial Examiner further finds that said striking
employees enjoyed the full rights of employees of the Respondent, including the
right to vote within an appropriate unit for the determination of a representative for
collective bargaining on March 17, 1959.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent's activities set forth in section III, above, occurring in connection
with the Respondent's 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 certain unfair labor practices
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of the hereinabove named employees it will be recommended
that the Respondent offer them immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other
rights and privileges, and that each be made whole for any loss of pay he may
have suffered by reason of the discrimination, by payment to him of a sum of money
equal to that which he would normally have earned as wages from the date of the
discrimination to the date of the Respondent's offer of reinstatement, less his net
earnings during such period.10 The backpay shall be computed in the manner es-
tablished by the Board." The Respondent shall make available to the Board its
payroll and other records to facilitate the checking of amounts due.'
to Crossett Lumber Company, 8 NLRB 440
11F. W. Woolworth Company, 90 NLRB 289.
I
THE MAGNAVOX COMPANY 1419
Upon, the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Washington Aluminum Company , Inc., Baltimore, Maryland,
is engaged in commerce within the meaning of the Act.
2. By discriminating in the hire and tenure of employment of Robert A. Heinlein,
Frank J. Adams, Frank Olshinsky, Warren A. Hovis, Augustine Affayroux, Sr.,
William George, Jr., and J. Alfred R. Caron, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of the Act, and by such
discrimination is thereby interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. 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 omitted from publication.]
The Magnavox Company and International Association of Ma-
chinists, AFL-CIO, Petitioner. Case No. 18-RC-6668. March
31, 1960
DECISION AND ORDER CLARIFYING CERTIFICATION
Pursuant to a stipulation for certification upon consent election,
and the election held pursuant thereto,' the Petitioner was certified
on August 4, 1959, as the collective-bargaining representative at the
Employer's Urbana, Illinois, plant, in a unit of production and main-
tenance employees, excluding office clerical employees , model shop
employees, guards, professional employees, and supervisors . There-
after, on October 22, 1959, Petitioner filed a motion requesting the
Board to clarify the unit by specifically including therein employees
classified as shipping and receiving employees, printers, and store-
keepers. The Employer by letter dated October 30, 1959, objected to
the inclusion of these employees in the unit on the grounds that they
devote "from 50 to 100% of their time in clerical functions and serv-
ices to office and engineering groups which are not a part of the pro-
duction and maintenance unit." On December 16, 1959, the Board
remanded the proceeding to the Regional Director for the purpose
of conducting a hearing on the issues raised in the Petitioner's
motion for clarification.
On January 8, 1'960, in accordance with the above order, a hearing
was held before Frances P. Dom, hearing officer. The hearing officer's
rulings are free from prejudicial error and are hereby affirmed.
Pursuant to the provision of Section 3(b) of the Act, the Board' has
.delegated its powers herein to a three-member panel [Chairman
Leedom and' Members- Bean and Fanning].
"The results of the election were 90 votes for the Petitioner , 2 votes for the Intervenor,
20 votes for neither, and 8 ballots ' challenged . There were approximately 128 eligible
voters in the unit.
1126 NLRB No. 167.