Duncan Foundry and Machine Works, Inc.

National Labor Relations Board - Board Decisions

May 29, 1969

176 N.L.R.B. 263 (N.L.R.B. 1969)

DUNCAN FOUNDRY AND MACHINE 263
Duncan Foundry and Machine Works, Inc. and
United Steelworkers of America, AFL-CIO. Case
I4-CA-4608
May 29, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On December 2, 1968, Trial Examiner James F.
Foley issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The Charging Party filed a brief in support of the
Trial Examiner' s Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner, as modified below.
We agree with the Trial Examiner that, when
Respondent paid vacation pay in early August 1967,
at the time it partially shut down its plant for 2
weeks for maintenance and repair, to employees
who continued to work and to the employees who
did not work, and similarly paid strikers who
returned after the August shutdown, but denied such
payments to unreplaced economic strikers, it
unlawfully discriminated against the latter strikers
under the Act. We also agree with the conclusions
of the Trial Examiner that the Respondent
discriminated against the 40 strikers who were
recalled to their former jobs in March or April
1968, without restoring them to their seniority and
other job rights to which they were entitled prior to
the strike which began on January 29,1967.
However, we base our findings and conclusions upon
the considerations discussed below.
The denial of vacation pay: The Respondent,
which is engaged in the manufacture of steel
castings and patterns, employed approximately 350
production and maintenance employees and
approximately 30 machine shop employees prior to
January 29, 1967. From 1942 until the summer of
1966, Respondent recognized and bargained with
Employees Association as the collective- bargaining
representatives of its employees. Successive
contracts were negotiated, the most recent of which
was effective from May 18, 1963, through May 18,
1966. The 1963 to 1966 contract contained
provisions which provided, inter alia , for the
payment of vacation benefits based upon length of
service to employees who worked continuously
during the preceding year, who received earnings in
at least 60 percent of the pay periods preceding May
1 of the year of payment, and who were employees
on May 1 of the payment year. These vacation
provisions were similar to the Respondent's vacation
pay practices which had been in effect since the
1950's.
The Charging Party, the United Steelworkers of
America, AFL-CIO, filed a timely representation
petition on February 21, 1966 (Case 14-RC-5356),
and pursuant to a Board conducted election was
certified as the collective-bargaining representative
of Respondent's employees on July 19, 1966.
Beginning October 4, 1966, Respondent and the
Steelworkers engaged in bargaining sessions in an
attempt to reach an agreement. On January 29,
1967, the Steelworkers engaged in an economic
strike. Bargaining continued during the strike, but
concluded on September 11, 1967, when the
Employees Association filed a petition for
representation (Case 14-RC-5787). Among the
provisions on which the parties reached an impasse
after approximately 35 bargaining sessions were
those involving the payment of vacation benefits to
strikers. On January 31, 1968, the strike ended and
the Steelworkers on behalf of the strikers offered
unconditionally their return to work.
At the onset of the strike, about 106 employees
remained at work, and approximately 244
employees participated in the strike. Approximately
44 employees returned to work before the strike
ended. No new employees were hired to replace the
strikers who did not return.
Respondent closed down during the first 2 weeks
in August 1967 for its annual maintenance and
repair work. Approximately 55 employees worked
during this period, and approximately 100
employees did not work. All of these nonstriking
employees were paid a minimum of 2 weeks pay
during the shutdown, and those who worked
received their regular wages. Employees who under
the provisions of the expired contract between the
Employees Association and the Respondent accrued
more than 2 weeks vacation were paid the additional
amounts. Strikers who returned to work after the
August shutdown, but before September It, 1967,
the date the Association's petition was filed, also
received a minimum of 2 weeks pay and the
additional amounts to which they would be entitled
under the vacation provisions of the expired
contract, if any. None of the other striking
employees was paid vacation benefits.
The Respondent contends that it was not
obligated to pay the striking employees who had not
returned to work vacation benefits since: (1) the
176 NLRB No. 31
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association's contract had expired, and the vacation
provisions were not applicable; (2) the striking
employees did not in any event qualify under the
provisions of the expired collective-bargaining
contract since they were not working on May I of
the calendar year in which benefits accrued because
of their strike status. We find no merit in the
Respondent 's contentions.'
Although the contract with the Association had
expired, it is clear that the Respondent applied the
terms of the contract, as well as past practices, to
nonstrikers and employees who returned to work,
but withheld such benefits from the unreplaced
strikers who might otherwise have qualified. We find
that on May 1, 1967, the qualifying date on which
benefits were computed , the strikers maintained
their employee status. The Board and the Courts
have held an economic striker who has not been
replaced not only remains an employee under
Section 2(3) of the Act, but in regard to accrued
vacation benefits must be treated in the same
fashion as other employees.' Moreover, under the
terms of the expired contract which was used as a
basis for computing the vacation payments physical
attendance on the payroll was not required, but only
that the individuals involved remain, as here, in an
employee status.'
The' record indicates that many of the strikers
earned accrued vacation pay based upon time
worked between May 1, 1966, to January 29, 1967,
the date of the strike. Accordingly, we hold that the
act of paying accrued vacation benefits to one group
of employees while withholding the benefits from
another group of employees who are distinguishable
only by participation in protected concerted activity,
absent a legitimate or substantial business
justification, was discrimination in its simplest form,
and was destructive of important employee rights,'
and the Respondent thereby violated Section 8(a)(1)
and (3) of the Act. As provided below, the
Respondent will be required to pay each employee
the vacation pay so withheld. Interest on the amount
due each employee shall bear interest at 6 percent
from the date the Respondent in effect denied
'In agreement with the Trial Examiner, we similarly find no merit in the
Respondent 's contention that the recalled strikers were no longer
employees by reason of its decision in September 1967 that their services
would not be needed in the future because of the loss of orders resulting
from unstable labor conditions . As the Supreme Court recognized in
Fleetwood Trailers Co., 389 U.S. 375, frequently a strike affects the level
of production and the number of jobs , but such reduction in the size of the
labor force due to a strike does not terminate the rights of strikers as
employees . See also Laidlaw Corp., 171 NLRB No. 175. Moreover, the
Respondent did not present substantial evidence that its major account
would not resume reliance on Respondent as a prime supplier as soon as
the so-called labor problem was resolved . Nor did Respondent present
evidence of any change in its productive capacity, or any decision to
subcontract production it engaged in prior to the strike , or any other factor
relating to its operation that would disclose lower production for the 2-year
period following the strike or thereafter.
'See Star Expansion Industries Corp., 164 NLRB No. 95; N.L.R.B. V.
Great Dane Trailers, Inc., 388 U.S. 26. See also N. L.R.B. Y. Frick Co.,
397 F. 2d 956 (C. A. 3).
See art . XI, secs. E and H.
vacation pay to the strikers in its memorandum to
them on September 21, 1967, in response to their
inquiries, both oral and written, in August and
September 1967, as to whether accrued vacations
would be paid to strikers.'
The denial of seniority rights to strikers: In
March or April 1968, the Respondent recalled
approximately 40 former strikers allegedly as
temporary employees to fill orders occasioned by a
customer 's inventory error. The Respondent
contends that, as the 40 employees in question were
recalled on a temporary basis only for the purpose
of completing a specific job, they were the same as
new employees without seniority rights. The
Respondent further contends that they, therefore,
had no right to displace returning strikers who were
recalled for permanent jobs and nonstrikers who had
not left their previous jobs or who were transferred
prior to the termination of the strike to other jobs
on a permanent basis. While we agree with the Trial
Examiner that the Respondent' s giving special status
to the recalled strikers was discriminatory, we do
not, for the reasons discussed below, agree with the
contentions of the Respondent or the findings of the
Trial Examiner that such employees were temporary
employees.
The record shows that the 40 former strikers who
were recalled returned to their old jobs and were
assigned to perform the same work they had
previously performed prior to the strike. The
Respondent admittedly had hired no permanent
replacements for their jobs. Except for the retention
of seniority rights ; they received all prior rights and
privileges including their old rates of pay. Both
President Duncan and Personnel Director Green
testified that the employees in question were recalled
on a temporary basis , for a temporary emergency,
and were considered temporary. However, both
further testified that other than being told that they
were being called in as temporary employees,
nothing specific regarding their job status was said
to them. Duncan further stated that he did not know
who would stay on permanently and who would not,
and did not know "how long the situation would
exist ." On June 5, 1968, the Respondent sent a
notice to all employees, which stated that the
Respondent had caught up with the temporary
increase in demand and for the next week or two the
foundry would operate on a 4-day rather than a
5-day schedule , and would make the necessary
adjustments to its working force by decreasing the
number of temporary employees. The notice also
indicated that the 40 employees recalled in March
and April were temporary and had been recalled on
'N.L.R.B v. Great Dane Trailers, Inc., supra.
'The Steelworkers filed and served the charge in the instant case on
March 20 , 1968. Thus, the statute of limitation or Sec . 10(b) period ended
on September 20, 1967. See Sec. 10(b) of the Act, and Secs . 102.111,
102.112, 102 113, and 102 114 of the Board ' s Rules and Regulations. The
Remedy and the Recommended Order of the Trial Examiner Decision are
modified below in conformity with this finding.
DUNCAN FOUNDRY AND MACHINE 265
a temporary basis to meet an increase in demand.
Respondent kept a list of employees identified as
permanent employees, and a list of employees
identified as temporary employees. On the first list
were the names of the nonstrikers, those who
abandoned the strike before its termination, and two
employees who had been recalled as permanent
employees. On the second list were the names of the
strikers who were on strike the entire period of the
strike, and who had been recalled in March and
April 1968. However, the record shows that the
recalled strikers participated in the work week
reductions the same as other employees, and even
though the customer's inventory error had
apparently been satisfied the recalled strikers
continued to work. As of the date of the hearing,
the end of June 1968, it appears the recalled strikers
were working on the same basis as other employees.
Thus, we conclude that there was no substantial
business justification for the Respondent's special
treatment of the recalled unreplaced economic
strikers.
In the circumstances, we find that the recalled
strikers were not employed on a temporary basis,
but were recalled for an indefinite, indeterminate
period, and had a reasonable expectancy of
continued employment, and cannot, therefore, be
equated to new employees." As regular employees
they were entitled to all the rights and privileges
they had accumulated prior to the time they went
out on strike. Consequently, the Respondent's
creating a dichotomy between the 40 recalled former
strikers and its other employees and its notice that
the recalled former strikers would be laid off first in
the event of a reduction in force in effect granted
superseniority' to nonstrikers. Such conduct was
destructive of the employees' Section 7 rights which
necessarily caused discouragement of membership in
the Steelworkers.' For these reasons, we find that
the Respondent discriminated against the recalled
former strikers in violation of Section 8(a)(1) and
(3). Accordingly, we shall order that the Respondent
give to the 40 employees recalled in March or April
1968 as temporary employees seniority rights and
privileges effective the first day they began work
upon recall.
THE REMEDY
Like the Trial Examiner we have found that the
Respondent violated Section 8(a)(1) and (3) of the
Act by discriminatorily withholding from employees
on strike through January 31, 1968, or employees
who had terminated striking but had not returned to
work by September 13, 1967, vacation pay for 1967.
Accordingly, we shall order that the Respondent pay
to each of the employees involved the amounts due
'Cf. e.g., Orchard Industries , Inc., 118 NLRB 798; Lloyd A. Fry
Roofing Co., 121 NLRB 1433.
'N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221.
as provided by the Trial Examiner under the section
of his Decision entitled "The Remedy." However,
the amount due each employee shall bear interest at
6 percent from September 21, 1967, rather than
from the period set forth by the Trial Examiner.
Apart from the foregoing, we shall adopt the
remedy set forth in the Trial Examiner's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Duncan Foundry and
Machine Works, Inc., Alton, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, with the following modifications.
Paragraph l(B)(l) of the Trial Examiner's
Recommended Order is deleted and the following
substituted:
1. Pay to each of the striking employees who
remained on strike from January 29, 1967, to
January 31, 1968, or who returned to work prior to
January 31, 1968, but not before September 13,
1967, vacation pay withheld from him, an amount
equal to 2 weeks' pay plus any supplemental amount
to which he is entitled under the formula used by
Respondent to compute the supplemental amounts it
paid the employees who received vacation pay for
1967, plus interest from September 21, 1967, until
paid.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner: This case, Case
14-CA-4608, was brought before the National Labor
Relations Board (herein called the Board), under Section
10(b) of the National Labor Relations Act, as amended
(herein called the Act), 61 Stat. 136, 73 Stat. 519, against
Duncan Foundry and Machine Works, Inc. (herein called
Respondent) by a complaint issued April 24, 1968, and
answer filed June 10, 1968. The complaint is premised on
a charge filed March 20, 1968, by United Steelworkers of
America, AFL-CIO (herein called Steelworkers).
It is alleged in the complaint that on September 20,
1967, and thereafter, Respondent, in violation of Section
8(a)(1) and (3) of the Act, refused to pay accrued vacation
pay to employees who engaged in an economic strike from
on or about January 1967 to January 31, 1968, but in the
calendar year 1967, paid the accrued vacation pay to
employees who did not engage in the strike or who
abandoned the strike before its termination . It is also
alleged in the complaint that since on or about January
31, 1968, Respondent , in violation of Section 8(a)(1) and
(3) of the Act, has been denying returning strikers
seniority rights and privileges , but at the same time
granting them to employees who did not engage in the
strike or who abandoned it before its termination.
Respondent , in its answer , denies it committed any
unfair labor practice under the Act as alleged in the
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint . It affirmatively defends that any claim or
cause of action alleged in the complaint against it is
barred by Section 10(b) of the Act and by the Regional
Director ' s dismissal on September , 11, 1967, of the
Steelworkers ' charge of a refusal to bargain in Case
14-CA-4398, and the final disposition of representation
case 14-RC-5187 filed on September 13, 1967, by
Employees Association of Duncan Foundry , Inc. (herein
called Employees Association ) and representation case
14-RM-327 filed on September 14, 1967, by Respondent.
Respondent also alleged in its Answer that it has been
denied due process in that it has been denied the
opportunity to prepare its defense by General Counsel's
failure to disclose the names of the persons discriminated
against and the circumstances giving rise to Respondent's
alleged discrimination against them.'
A hearing on the complaint supplemented by the bill of
particulars and the answer was held before me in St.
Louis , Missouri , on June 10 , 11, 17, 18, 19, and 20, 1968.
The parties were afforded an opportunity to present
evidence , make oral argument and file briefs . Briefs were
filed by General Counsel , Respondent and Charging Party
after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT COMPANY
'Respondent , by counsel , filed a motion for a bill of particulars on May
6, 1968, in which it asked for the basis for Respondent's obligation to pay
vacation pay ; the names of striking employees allegedly entitled to accrued
vacation pay in 1967 and did not receive it; the names of strikers as of
September 20, 1967 , who had not lost employment status by acts of
violence, voluntary resignation , obtaining other or substantially equivalent
employment, and permanent change in nature of Respondent 's business
which eliminated a substantial number of positions ; and the names of
employees who received accrued vacation pay in 1967 , and the terms and
conditions under which it was paid . The motion also requested the names
of returning strikers who were denied seniority and privileges, and what
seniority rights and privileges were denied each one of these returning
strikers ; the names of non-striking employees and striking employees who
abandoned the strike who received seniority rights and privileges not
received by returning striking employees , and what seniority rights and
priviliges were granted to each one of these employees . On May 28, 1968,
Trial Examiner Charles W . Schneider granted the motion for a bill of
particulars to the extent that General Counsel was directed to furnish
Respondent with a statment of the nature of the seniority and
auperseniority rights and privileges allegedly denied returning strikers and
granted to nonstrikers and strikers who abandoned the strike . He denied
the motion for bill of particulars in all other respects . Counsel for
Respondent requested the Board for special permission to appeal the Trial
Examiner 's order denying in part the motion for a bill of particulars. The
Board denied the request on June 7, 1968 . Counsel for General Counsel,
on May 31 , 1968, pursuant to Schneider 's order of May 28, 1968,
furnished to counsel for Respondent a bill of particulars stating therein
that "the nature of the seniority rights and privileges and the
super-seniority rights and privileges referred to in paragraph 7(c) of the
complaint are the right to priority in employment in cases of decreases and
restoring of working forces ." Counsel for Respondent , on June 6, 1968,
filed with Trial Examiner Schneider a motion in which he was requested to
require General Counsel to comply with his order of May 28 , 1967, on
Respondent ' s motion for a bill of particulars filed May 6, 1968.
Respondent , by counsel , contended that General Counsel 's bill of
particulars was "ambiguous, evasive and non-specific" and did not comply
with Trial Examiner Schneider 's order. On June 7, 1968, Trial Examiner
Schneider denied the motion for compliance . On June 10, 1968,
Respondent , by counsel , filed with the Board a request for special
permission to appeal to the Board Trial Examiner 's denial of the motion
for compliance of June 7, 1968 . On June 14, 1968 , the request for special
permission to appeal was denied by the Board.
Respondent, an Illinois corporation with its principal
office and place of business in Alton, Illinois, has at all
material times herein been engaged in the manufacture,
sale and distribution of steel castings, and stokers,
incinerators and related machinery. During the calendar
year 1967, Respondent manufactured, sold and distributed
at its Alton, Illinois, plant, products valued in excess of
$50,000, and of these products those with a value in excess
of $50,000 were shipped from the Alton plant directly to
points located outside the State of Illinois. Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and assumption of jurisdiction will
effectuate the purposes of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Steelworkers is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Evidence in Support of Complaint
Respondent has been engaged in the manufacture of
steel castings from patterns placed with it by customers
for more than 90 years. The castings are produced in a
foundry operation, the mainstay of its business. Prior to
January 29, 1967, Respondent employed in the foundry
approximately 350 production and maintenance
employees.' Respondent also has a machine shop
operation, which builds stokers, incinerators and related
machinery, About 30 employees worked in the machine
shop before the January 29 date.
From 1942 until the summer of 1966, Respondent
recognized and bargained with Employees Association as
the collective-bargaining representative of its employees.
Respondent and the Association were parties to successive
labor contracts; the most recent of which became effective
May 18, 1963 (herein called the Last Contract).
Respondent terminated the Last Contract on May 18,
1966. The Steelworkers was certified as
collective-bargaining representative of Respondent's
employees on July 19, 1966, in 14-RC-5356. The
Steelworkers filed the petition for representation on
February 21, 1966. From October 4, 1966, through
September 13, 1967, Respondent and Steelworkers
engaged in 35 or more bargaining sessions. The
Steelworkers engaged in an economic strike from January
29, 1967, until January 31, 1968. Negotiations took place
during approximately 7 1/2 months of the strike period.
They ended on September 13, 1967, approximately 4 1/2
months before the strike ended, because of the filing on
September 13, 1967, of a petition for representation by
Employees Association.
Employees Association's petition for representation of
September 13, 1967 was in case 14-RC-5787. Respondent,
on September 14, 1967, filed a petition in 14-RM-327
questioning the status of Steelworkers as a majority
representative. An election was held by the Board on
January 26, 27, and 28, 1968, in the unit the Steelworkers
had represented.'
'As described infra, Steelworkers initiated a strike of Respondent's
employees on January 29, 1967, which lasted until January 31, 1968.
'Three hundred and fifty-two votes were cast in the election. One
hundred and fifty-five were cast for Respondent , none were cast for
Steelworkers, and two votes were cast against participating organizations.
One hundred and sixty-six votes were counted . - One hundred and eighty-six
DUNCAN FOUNDRY AND MACHINE 267
At the outset of the strike, which began on January 29,
1967, about 106 employees remained at work and did not
strike. Approximately 244 participated in the strike. On
February 15, 1967 , Respondent sent a memorandum to
the striking employees in which it informed them that if
they did not return to their jobs by February 22, 1967,
they would be permanently replaced. A number of
employees returned to work following this memorandum.
By the end of the strike on January 31, 1968, there were
approximately 150 on Respondent ' s payroll.
Approximately 44 employees returned before the strike
ended. No employees were permanently replaced. At the
time of the hearing in June 1967 , Respondent employed in
the foundry 175 to 200 employees identified as permanent
employees and in the machine shop 15 employees
identified as permanent employees . In addition , it had an
additional 40, more or less, employees identified as
temporary employees engaged in what Respondent
described as temporary work to produce castings intended
to increase a customer 's inventory that had a deficiency in
it due to an error in the customer's inventory records.
Respondent closed down during the first 2 weeks of
August 1967 for maintenance and repair . Approximately
50 to 55 employees worked during this 2-week period.
Between 80 and 100 employees did not work . Those who
did not work were paid their wages for the 2-week period.
Those with tenure who , under the formula in article XI of
the Last Contract, were entitled to a paid vacation greater
than 2 weeks received a sum in addition to the 2 weeks
wages that was equivalent to the wages for the additional
vacation period beyond the 2 weeks to which they were
entitled under the formula. Those who worked received
their wages for the 2 weeks and in addition received a sum
comprised of the amount of the 2 weeks ' wages plus what
additional amount they were entitled to receive under the
formula for a period beyond the 2 weeks. Strikers who
returned after the first 2 weeks in August 1967, but before
September 11, 1967, the date Employees Association's
petition was filed , received 2 weeks ' pay and the
additional amount in excess of the 2 weeks' pay to which
they would be entitled under article XI of the Last
Contract, if any.'
votes were challenged by Respondent and Employees Association. The
number of challenged ballots were sufficient to affect the results of the
election . Timely objections were filed by Respondent (the employer
petitioner) and Employees Association (the petitioner union ). On June 6,
1968, the Regional Director sustained the challenges to six votes, and
overruled the objections . Respondent had challenged the votes of the
strikers who were on strike when the election took place on the ground
they were no longer employees . There were 178. Employees Association
challenged the votes of 25 employees who voted on January 28, the last
day of the election . Employees Association and Respondent requested
review of the Regional Director 's decision of June 6, 1968 . On October
11, 1968, the Board denied the request for review. The Regional Director's
order of June 6, 1968 ordered the challenged ballots to be opened. This
action was deferred by the request for review . The opening of the
challenged ballots is now the pending action in cases 14-RC-5787 and
14-RM-387 in view of the Board 's denial of request for review of October
11, 1968. 1 hereby take official notice of the records in these two
representation cases.
'Article XI of the Last Contract, which was terminated by Respondent
effective May 18 , 1966, provided the following : An employee was entitled
to a paid vacation , if he was in continuous full-time service for a period
not less than 12 months prior to May I in a calendar year , and worked in
at least 60 percent of the pay periods in the 12 months preceding this May
1. The number of days in the paid vacation period of an employee
depended on his tenure of continuous employment . For tenure of I to 3
years , it was I week ; of 3 to 5 years , 1.1/2 weeks ; of 5 to 15 years, 2
weeks ; of 15 years to 25 years , 3 weeks ; and of not less than 25 years, 4
weeks . Employees could schedule payment of vacation money between the
The above evidence discloses that employees who did
not work during the shutdown who had tenure of less than
a year and not entitled to a vacation, or tenure of 1 to 3
years and entitled to only a week's vacation, or tenure of
3 to 5 years and entitled to only a week and a half
vacation, were paid 2 weeks' wages for not working the 2
weeks. Employees with 5 to 15 years' tenure and entitled
to 2 weeks' paid vacation under the formula in the Last
Contract, received 2 weeks' wages for the 2 weeks not
worked as did the employees with less seniority.
During August 1967, following the plant shutdown in
the first 2 weeks of August, and in September 1967,
striking employees, by letter and orally, asked Respondent
for vacation pay for 1967.1 Steelworkers had suggested to
the striking employees that they make this request. On
September 21, 1967, E. J. Green, Respondent's personnel
director, sent a letter to each striking employee in which
he referred to the request for vacation pay, and stated that
Respondent "is presently making a study of the vacation
eligibility as it applies to those who have already made
requests for vacation pay as well as those who have not
done so," and "as soon as the study is completed and a
determination is made, you will be informed of our
decision ." The striking employees were not informed of
the results of any study of this problem, and were not paid
vacation pay for 1967.6
In a letter to Respondent dated February 8, 1968,
Steelworkers referred to Personnel Director's letter of
September 21, 1967, in which he stated that Respondent
was making a study of the eligibility of striking employees
for vacation pay in 1967, and then would determine if
they were entitled to it. Steelworkers remarked that
first pay period after May I and the last pay day in the calendar year
ending December 31, with I week' s notice to Respondent 's payroll
department , and were required to schedule vacations between May I and
December 1 , but the final allotment of time rested with Respondent. Any
employee hired prior to October I was considered to have been employed
on May I upon completing his anniversary date of employment, for the
purpose of computing the number of years of continuous service. An
employee with a break in continuous service but subsequently reemployed
was a new employee , except that an employee who secured a leave of
absence from Respondent or was on lay off status would not lose his
previous accrued continuous service credit. Employees in the Armed Forces
and eligible for Veterans Reemployment Rights , upon reemployment by
Respondent received credit for continuous service for the time spent in the
Armed Forces , but were not entitled to a vacation with pay while serving
in the Armed Forces . Any dispute involving interpretation of Respondent's
records in respect to eligibility for vacations , including cases involving
absence from work without authorization or because of illness or injury,
was subject to the Last Contract's Grievance procedure . Miscellaneous
provisions were that an employee to receive vacation benefits had to be
employed on May I, and where an employee was terminated prior to the
receipt of any vacation benefits to which he was entitled , he was paid
vacation pay due him upon termination.
'The parties stipulated that a majority of the striking employees worked
60 percent of the pay periods in the 9-month period from May 1, 1966 to
September 29, 1967. The employees contended that they had coming to
them accrued vacation pay based on this time worked . Respondent's
President Samuel W. Duncan testified that all employees worked during
the 1966 period except those absent because of illness or for some personal
reason . There were no layoffs due to a reduction in force . He also testified
this was the situation for the period from January I, 1967, to January 29,
1967.
'In the summer of 1965, and in the prior summers starting with 1960,
Respondent shut down for maintenance and repair. This was a normal
vacation period for employees . Employees were given paid vacations in
1965 and the prior summers in accordance with article XI of the Last
Contract . In the summer of 1966 , Respondent did not shut down for
maintenance and repair. It remained in continuous operation to fill
outstanding orders. Employees received vacation pay in 1966 in
accordance with article XI of the Last Contract.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enough time had elapsed for the study and determination,
and requested Respondent to inform it, as the certified
collective- bargaining representative still authorized to
represent the strikers, when the strikers could expect
payment of their long deferred vacation benefits.
In a letter dated March 4, 1968, Respondent, by
President Duncan, informed Steelworkers that the
petitions of September 13, 1967, and September 14, 1967,
of Employees Association and Respondent, respectively,
had raised a question of Steelworkers' majority
representation, and, therefore, Respondent lacked
authority to respond to the inquiry in Steelworkers' letter
of February 8, 1968,' as the whole question of "vacation
pay and eligibility" was an "obvious subject for collective
bargaining ," and could only be negotiated with the
majority representative. The letter of Respondent also
stated that during the first negotiations meeting after the
Steelworkers was certified,' Respondent had proposed that
all past practices, economic and noneconomic, be
continued while negotiations were in progress and new
agreements were reached, and Steelworkers rejected this
proposal; that Respondent then proposed that the Last
Contract, to 'which Respondent and Employees
Association were parties, be continued in effect except for
the grievance procedure and cost of living features, and
Steelworkers also rejected this proposal; that these
rejections of Steelworkers were not changed or modified
during the bargaining negotiations which ended on
September 13, 1967; and that the whole subject of
vacations, including 1967 vacation pay for strikers, was
discussed during the course of the bargaining, but no
agreement was reached on it by Steelworkers and
Respondent.
Respondent concluded its letter of March 4, 1968, with
the statement that it could not discuss vacation pay with
Steelworkers until it was again certified by the Board. In
a letter dated March 20, 1968, Steelworkers, inter alia,
replied that in its letter of February 8, 1968 it did not
request bargaining , on behalf of the strikers, on vacation
pay already earned , and which Respondent had already
paid to nonstrikers, but merely inquired as to the decision
dealing with vacation pay for strikers that Respondent
stated it would make in its letters to employees of
September 21, 1967. Steelworkers further stated that the
rights of strikers to this vacation pay existed " as a matter
of national policy and law" and not on past or future
bargaining between Respondent and Steelworkers.
As stated supra, the Steelworkers terminated the strike
on January 31, 1968, and on behalf of the strikers offered
unconditionally their return to work. The Steelworkers so
notified Respondent in a letter dated January 31, 1968.
On February 27, 1968, Steelworkers sent a letter or
memorandum to its members who were employees of
Respondent and who had been on strike. It apprised them
of the Steelworkers' notice to Respondent of the
termination of the strike, and the unconditional offer it
made on their behalf to return to their jobs. Steelworkers
further informed these employees of Respondent that it
had no objection to their reporting to the Respondent's
personnel office to let Respondent know they were
available for employment, or as an alternative, to
complete a form letter, attached to the Steelworkers'
letter, addressed to President Duncan informing him that
they desired to return to their jobs, and were available for
'There had been no bargaining since the filing of the Employees
Association 's petition on September 13, 1967.
'October 4, 1966.
employment, and to return it to Steelworkers' office which
in turn would send it to Respondent. Steelworkers also
informed the members with other jobs who intended to
report to Respondent's personnel office, that they ran the
risk of discharge from those jobs if they revealed the
identity of their employers. It also informed them they did
not have to disclose to Respondent whether their jobs
were permanent or substantially equivalent, but needed
only to state that although they were presently employed
they wished to return to their jobs with Respondent.
In March or April 19, 1968, Respondent recalled two
former strikers as permanent employees. It also recalled
at this time an additional 39 or 40 of the former strikers.
Those in this latter group were told they were being
recalled as temporary employees.9 The two employees
identified as permanent employees, and the employees
identified as temporary employees were assigned to the
same jobs they held prior to the strike. The so-called
temporary employees made inquiries to Respondent about
their seniority, but were told that Respondent had no
answer for them." Respondent kept a list of employees
identified as permanent employees and a list of employees
identified as temporary employees. On the first list were
the names of the nonstrikers, those who abandoned the
strike before its termination, and the two employees (John
Wheeler and Fred Wheeler) who had been recalled as
permanent employees. On the second list were the names
of the strikers who were on strike the entire period of the
strike, and who had been recalled after the strike as
temporary employees.
B. Respondent 's Defense to Meet Evidence in
Support of Complaint
'President Duncan testified than in September 1967, he decided that the
employees then working (approximately 175) were all the permanent work
force Respondent needed for the following 2 years to meet its estimated
orders during that period . Evidence was introduced by Respondent to show
that its production needs during the 2-year period would be only one-third
of what it was prior to the strike. This evidence is discussed infra.
President Duncan also testified that the 39 or 40 former strikers recalled as
temporary employees were recalled to produce castings needed by a
customer to correct an error it made in its inventory. On June 5, 1968,
Respondent posted a notice signed by President Duncan in which was
stated that the Respondent had caught up with the increase in demand for
castings brought about by a customer 's error in its inventory records, and
for the following 2 weeks its foundry would operate on a 4-day weekly
schedule , and if there should be no increase in needed production,
Respondent would return to a 5-day week and make the necessary
adjustment in its working force by decreasing the number of temporary
employees . It was also stated in the notice that the "temporary
employees," when called in, were told they were being called in on a
"temporary basis" to meet the increase in demand due to the customer's
error in its inventory records. The notice ended with the statement that
where departments required more than a 4-day week , the adjustment would
be handled by the foreman.
"President Duncan testified that "we just didn ' t tell them anything
because we had a permanent work force and that had been stated and we
couldn 't see any permanent increase in the number of employees." Henry
Reed , a recalled "temporary employee ," testified that at the time of recall
he asked Personnel Director Green about seniority , and he replied that he
had lost seniority for the year 1967 . Reed was an employee of Respondent
for 17 years. Green denied he made this statement to Reed . He testified
that he said to Reed that he could not give him an answer as there were a
number of things before the Board that were not resolved . I credit Green.
As stated supra, fn. 3, at the election of January 26 , 27, and 28, 1968,
Respondent challenged the right of the strikers still striking to vote on the
ground that they were no longer employees.
DUNCAN FOUNDRY AND MACHINE 269
1. Denial of procedural due process
In support of its defense of denial of procedural due
process, Respondent refers to the complaint and contends
that allegations therein do not place it sufficiently on
notice of the illegal conduct charged against it to permit it
to prepare its defense . The basis of this position is the
same as those set out in fn. I, supra , in reference to and
in support of Respondent ' s pre-hearing motions.
Specifically , Respondent contends : That the complaint
does not disclose whether the vacation pay allegedly
denied striking employees but paid to nonstrikers and
those abandoning the strike before its termination accrued
during the months from May I, 1966 , up to and including
January 29 , 1967, when the strike began , or accrued
during the entire period from May 1, 1966, up to May 1,
1967; That General Counsel did not name in the
complaint the employees who were denied the vacation
pay, or disclose whether any of these employees had not
lost the status of employees because of acts of violence,
permanent employment elsewhere , voluntary resignation,
or a substantial change in Respondent ' s business; That
General Counsel 's complaint does not disclose the names
of the striking employees allegedly denied seniority rights
and privileges , nor the nonstriking employees and striking
employees abandoning the strike before its termination,
who were given seniority rights and privileges not given to
the striking employees , and that the complaint does not
state the seniority rights and privileges denied the one
group of employees and given to the other.
The allegation in the complaint of denial to strikers of
1967 accrued vacation pay does not clearly disclose that
this vacation pay accrued only in the months from May 1,
1966, to the beginning of the strike on January 29, 1967.
Accrued vacation pay could be construed to refer to
vacation pay allegedly accrued during the strike period
from January 29, 1967 , to May 1 , 1967, since
Steelworkers in the bargaining negotiations proposed that
time on strike be considered as time worked for the
purpose of determining 1967 vacation pay. Respondent
concedes that General Counsel stated for the record that
the accrued vacation pay allegedly denied the strikers in
1967, was vacation pay accrued only during the months
from May 1, 1966 , to January 29, 1967 , and not during
the strike period from the latter date to May 1, 1967.
Respondent ' s counsel was apprised by the Examiner that
he would consider a motion for a continuance at the close
of the hearing to meet any surprise to Respondent from
General Counsel 's statement for the record . Respondent
did not make such a motion.
It is undisputed that Steelworkers , in its charge of
March 20 , 1968, alleged only denial to strikers of vacation
pay that accrued from May 1, 1966, to January 29, 1967;
that Respondent 's records show the names of employees
who worked during the payroll periods from May 1, 1966,
to January 29, 1967, and did not work during the strike
period from January 29, 1967, to January 31, 1968; and
that Respondent 's records show the employees who were
considered permanent employees on January 31, 1968, and
the two employees recalled as permanent employees in
March or April 1968, and the employees recalled as
temporary employees in March or April 1968 . Respondent
did not introduce evidence , or attempt to do so, of
striking employees who did not work from January 29,
1967, to May 1, 1967, because they voluntarily resigned,
secured permanent employment elsewhere and decided to
retain it ; were laid off because of lack of work due to a
permanent change in Respondent ' s business structure or
operations , or engaged in picket line violence from
January 29 to May I, 1967 , warranting discharge or
denial of employee benefits.
2. Charge of denial of accrued vacation pay and
seniority barred by Section 10(b) of the Act
In support of its defense that the charge Respondent
denied strikers accrued vacation pay is barred by Section
10(b) of the Act, Respondent relies on evidence,
documentary and oral , it introduced , that on March 29,
1967, in a bargaining session , Steelworkers presented a
revised contract proposal that included proposals that in
the determination of vacation time and pay for 1967,
strike time be considered as time actually worked, and
economic benefits be made retroactive to cover the period
between the beginning of negotiations on October 4, 1966,
to the date of execution of the agreement , and that
Respondent counterproposed on that date revised contract
language , economic benefits in the Last Contract effective
the date agreement was reached , and a flat sum payment
to employees on the active payroll after ceasing to strike
in lieu of any special treatment for time on strike or
retroactivity for the interim period between the
resumption of bargaining and the date of agreement, and
that on August 28, 1967, Respondent flatly rejected
Steelworkers ' proposal that strike time be considered as
hours worked for the determination of vacation pay, and
the Steelworkers ' proposal, made for the first time on
August 28, that nonstrikers and strikers who abandoned
the strike before its termination be replaced by strikers in
available jobs after the termination of the strike.
Respondent contends that the alleged unfair and illegal
conduct began on August 28, 1967, if it did begin , and not
on September 21, 1967, as alleged in the complaint. If
Respondent ' s contention is sustained the alleged unfair
labor practice would not be within the 10(b) period.
Although Respondent alleged as an affirmative defense
that the charge it denied seniority to strikers returning to
their employment after the termination of the strike is
barred by Section 10(b) of the Act, it presented no
evidence or argument in support of this defense.
3. Respondent 's custom or practice that became a
term or condition of employment with respect to the
right to receive vacation pay
To meet the evidence that Respondent discriminated
against strikers by refusing to give them vacation pay in
1967 Respondent introduced testimony that during the 17
years it had collective -bargaining relations with employees
through their representatives and particularly since 1960,
Respondent did not give a paid vacation or vacation pay
to an employee who was not on the payroll of May I,
with the exception that an employee on authorized leave
or sick leave on May I was considered to be on the May
1 payroll if he was back on the payroll by October 1, and
that in determining what employees were entitled to paid
vacations it interpreted article XI of the Last Contract
and a similar provision in prior contracts to mean that an
employee to be entitled to a paid vacation had to be in
continuous employment , be on the payroll on May I of
the year the paid vacation was given , or by October 1 if
absent because of sick leave or authorized leave , and have
worked during 60 percent of the payroll periods in the 12
months ending on this May 1. It concedes that there is no
reference to a strike in article XI of the Last Contract or
in the similar provisions in prior contracts , that in the 90
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years it had been in business prior to the strike beginning
January 29, 1967, its employees had never engaged in a
strike, and it was never required to determine prior to the
summer of 1967 whether a striker was entitled to vacation
pay.
4. Respondent's evidence to show terms and
conditions of employment including vacation pay for
1967, seniority and seniority rights and privileges, and
questions relating to terms and conditions of
employment, arising during negotiations, were subject
to, and to be determined by, negotiations, and
impasse and filing of petitions raising questions of
representation prevented these determinations
Respondent's evidence shows that Respondent and
Steelworkers discussed from October 4, 1966, until
September 13, 1967, all terms and conditions of
employment, both economic and noneconomic. In general,
agreement on noneconomic issues and contract language
was reached by January 1967. Economic issues including
vacation pay and seniority were discussed in January
1967. An impasse was reached at the end of January, and
Steelworkers called a strike. The parties attempted to
break the impasse in March 1967, and again in August
and September 1967, by a series of three or four special
meetings to explore issues on which agreement could be
reached, and on which agreement would be reached when
they were brought to the bargaining table. The bargaining
ended when the petition was filed by Employees
Association on September 13, 1967.
In the October 4, 1966, meeting Respondent proposed
that prior customs and practices established over the 17
years of bargaining between Respondent and Employees
Association be effective during the period of negotiations,
and that Steelworkers rejected this proposal. It is also
clear that on October 4, Respondent's proposal that the.
provisions of the Last Contract, which was in effect'
between Respondent and Employees Association and
terminated on May 18, 1966, except those dealing with
cost of living, grievance procedure, Christmas bonus and
picnic, be effective for the period of negotiations, and
Steelworkers rejected this proposal. In November 1966,
Steelworkers asked Respondent to give the Christmas
bonus and picnic at Christmas 1966, that it gave under the
Last Contract, and Respondent agreed to give the bonus
and not the picnic.
In January 1967 agreement was reached on some of the
issues involving seniority but not on all of them. In March
1967 and again on August 28, 1967, Steelworkers
proposed that time on strike be counted as time worked
for the purpose of determining qualifications for 1967
vacation pay, and on August 28, 1967, Steelworkers
proposed that after the termination of the strike strikers
replace nonstrikers and those abandoning the strike before
termination, and that Respondent rejected both of those
proposals, particularly on August 28, 1967. In January,
March and September 1967, Respondent proposed, in
response to Steelworkers' proposals regarding the
counting of strike time as time worked and the
replacement of nonstrikers by strikers, and in response to
the proposal of Steelworkers that economic benefits be
made retroactive, that a lump sum be paid to employees
employed at the termination of the strike to cover 1967
vacation pay and other matters to which negotiated
benefits would apply if made retroactive.
5. Respondent's evidence to show that due to
decreased production needs for 1968 and 1969
resulting from a labor dispute, only employees
employed at termination of strike and two others
were permanent employees with seniority rights and
privileges, and forty employees recalled as temporary
employees after strike were not permanent employees
Respondent's evidence shows that at the beginning of
the strike, Respondent employed approximately 350
employees in its foundry and approximately 30 employees
in its machine shop, and at the beginning of the hearing
on June 10, 1968, it employed in its foundry 175 to 200
employees it identified as permanent employees, and in its
machine shop 15 employees it identified as permanent
employees, and in addition it employed 40 employees it
identified as temporary employees. The evidence indicates,
and I find, that at the termination of the strike,
Respondent employed approximately 175 to 200
employees in the foundry, and 15 employees in the
machine shop. President Duncan testified that in
September 1967, Respondent estimated that its projected
business needs for 2 or 3 years required only 175 to 200
permanent employees. He testified that he projected the
same production in 1968 and 1969 as Respondent had in
1967 because Respondent would have a labor problem in
those years as in 1967. He stated that the labor problem
in 1968 and 1969 would be the contest between
Steelworkers and Employees Association for the right to
represent Respondent's employees as collective-bargaining
representative."
Respondent shipped to customers in 1967, 5,361 tons of
castings compared with shipments in 1966, 1965, and 1964
of 12,218 tons; 10,665 tons; and 10,335 tons.' 2
President Duncan testified that during the strike 225
patterns were returned to customers, at their requests, so
that they could send them to other manufacturers of
castings for the production by them of castings they
needed. Duncan testified that only 33 of the patterns had
been returned to Respondent by June 10, 1968. Duncan
also testified that Respondent had between 2,000 and
10,000 patterns, and that the patterns were used an
average of 8 to 10 years both for original equipment and
replacement castings.
Duncan and Philip Mathers, production manager,
testified that 66 percent of the castings shipped in 1966 to
customers were shipped to Caterpillar Tractor Company.
Caterpillar withdrew 144 of the 225 patterns withdrawn
during the strike. Mathers testified that the patterns
removed by Caterpillar accounted for 75 to 80 percent of
the castings Respondent made for Caterpillar prior to the
strike. Duncan testified that Caterpillar has considered
Respondent a prime supplier since the end of World War
II. As stated, Duncan expects the decreased production to
last as long as Respondent has a labor problem, and that
the problem following the strike is the resolution of the
issue of majority collective-bargaining representative.
"Steelworkers was certified in July 1966 for the unit that Employees
Association had represented for 17 years. In September 1967, at the close
of the certification year for Steelworkers, Employees Association claimed
in a petition for representation that it was again the majority
representative.
"I consider 1965 and 1964 more representative . Respondent had
additional orders in 1966 which required three shifts and operation during
the customary period for shutdown for maintenance and repair and for
employee paid vacations.
DUNCAN FOUNDRY AND MACHINE 271
No evidence was presented to show that Caterpillar
would not resume reliance on Respondent as a prime
supplier as soon as the so-called labor problem is resolved.
Nor did Respondent present evidence of any change in its
productive capacity, or any decision to subcontract
production it engaged in prior to the strike, or any other
factor relating to its operation that would disclose lower
production for the 2-year period following the strike or
thereafter.
Analysis, and Findings and Conclusions of Fact and
Law
On the foregoing findings of fact I make the following
analysis, and findings and conclusions of fact and law."
I find no merit in Respondent's defense that it was
denied procedural due process by not being put on notice
of what it had to meet either with respect to denial of
vacation pay for 1967, or denial of seniority rights and
privileges to employees recalled to work after the strike as
temporary employees. While this claim of Respondent was
disposed of as a preliminary matter prior to the hearing
on complaint and answer, I again find that Respondent
had adequate notice of what it had to meet.
The group or class allegedly denied vacation pay were
the strikers who remained on strike during the full period
of the strike. Respondent knew who its employees were on
January 29, 1967, those who did not strike, and those who
abandoned the strike in the period from its inception to its
termination and returned to work, and the date they
returned. The class or group denied 1967 vacation benefits
and those who received them are apparent from these
data.
Respondent was aware from the long bargaining period
discussions that at most the complaint alleged that the
denied vacation pay was based on hours worked from
May 1, 1966, to the beginning of the strike on January 29,
1967, and possibly on strike time from the latter date until
January 31, 1968. If it were for both periods, Respondent
had a legal defense for the second period namely that no
type of earnings accrues during either an economic strike
or an unfair labor practice strike. There remained only the
period from May 1, 1966, to January 29, 1967. In any
event, General Counsel stated for the record that the
vacation pay for 1967, allegedly denied was based only on
hours worked from May 1, 1966, to January 29, 1967.
Respondent did not ask for a continuance at the close of
the hearing to permit it to prepare against any surprise
that remained after General Counsel made this statement
for the record.
Respondent knew who the 40 employees were who were
told on being recalled after the strike that they were only
temporary employees, and knew they were the employees
who inquired about seniority and to whom he said he had
no answer or said the question was before the Board in
the representation proceeding. Respondent also knew who
the employees were who were named in a list of
temporary employees, and to whom it referred in its June
5, 1968, memorandum as temporary employees, and who
would be the employees affected by a reduction in force.
And Respondent knew who the employees were who were
named in its list of permanent employees, and considered
to be entitled to the rights and privileges of permanent
employees including those based on seniority.
The special showings Respondent alleged were the
burden of General Counsel, that is, those relating to
permanent employment elsewhere, violence on the picket
line, voluntary resignation or permanent change in
Respondent's business, are defenses to the application of
the remedy against discrimination in favor of the
discriminated group or class to certain employees in the
group or class, and are the burden of Respondent and not
of the General Counsel.1°
Section 10(b) of the Act is not a bar to the finding of a
violation against Respondent. The charge was filed against
Respondent on March 20, 1968. I find that Respondent
denied vacation pay to the strikers in its memorandum to
them of September 21, 1967, in response to their inquiries,
both oral and written, in August and September 1967, as
to when they would receive it. The inquiries followed the
giving of vacation pay, characterized by Respondent as
pay for time not worked, given in August 1967, and
thereafter in 1967, to employees who did not strike or
strikers who abandoned the strike and were back at work
by September 13, 1967. Respondent denied the recalled
strikers seniority rights and privileges relating to recall,
rehiring and reduction in force in March or April 1968,
when it did not answer the inquiries of the recalled
strikers about these rights and privileges because it did not
consider these employees as permanent employees, and
answered one employee that it could not answer his
inquiry because the matter was before the Board in the
representation proceeding. The actions taken by
Respondent by which it denied to strikers the 1967,
vacation pay and seniority rights and privileges are both
within the required 6-month period specified in Section
10(b) of the Act."
The rejection in the course of bargaining on March 29,
1968, and August 28, 1968, of Steelworkers' proposals
that strike time be counted as time worked for the
purpose of qualifying for vacation pay, and that strikers
replace nonstrikers and strikers abandoning the strike
before termination, do not constitute illegal denial of
vacation pay or seniority rights and privileges to strike.
Neither do proposals of Respondent made in the course of
bargaining that in lieu of vacation pay accrued to strikers
a lump sum be paid to those of them who were returned
to work and were again on the payroll. Proposals and
counterproposals, rejections and acceptances made in the
course of bargaining are not to be equated with denials or
refusals, admissions, acceptances or rejections which are
evidence of illegal conduct. They are considered in the
same light as proposals, counterproposals, denials,
acceptances, rejections and acceptances made in
discussions exploring the possibility of settlement.
Respondent's employees who engaged in an economic
strike starting January 29, 1967, and terminating on
January 31, 1968, had a statutory right to engage in this
strike and to be free of any action or conduct by
Respondent which impeded or limited, directly or
"Credibility resolutions and resolutions of conflicts in evidence have
been made upon evaluation of demeanor testimony and oral and written
evidence. See Felix Makeviclus , d/b/a Brighton Bakery , 158 NLRB 512,
fn. 1; N.L. R.B. v. United Brotherhood of Carpenters, Local 517, AFL,
230 F.2d 256 (C.A. 1); N.L. R.B. v. Universal Camera Corporation, 179
F.2d 749 (C.A. 2), reversed on other grounds 340 U.S. 474. All
outstanding motions to strike testimony or other evidence are denied.
"Sea Land Service , Inc, 146 NLRB 931, 950, enfd 356 F 2d 955 (C.A.
I), cert. denied 385 U.S. 900, N.L R.B. v. Bin-Dictator Company, 356
F.2d 476, (C.A. 6), enfg. in part and setting aside in part 143 NLRB 964,
and N.L.R.B v Jackson Tile Manufacturing Company. 282 F.2d 90, 92
(C.A. 5), enfg.124 NLRB 218
"Sec. 10(b) of the Act, and Secs. 102.111, 102.113, and 102 114 of the
Board's Rules and Regulations
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indirectly, this statutory right.16 Moreover, these strikers
had the status of employees during the strike and
following the strike, did not lose this status merely
because of the length of time they were on strike, and
may not be equated with new employees and denied
vacation pay earned before the strike or denied
preferences to which they are entitled by reason of tenure
they had as employees before the strike."
I find and conclude that General Counsel' s case, prima
facie, shows that the strikers who remained on strike until
its termination were denied vacation pay or benefits for
1967, given to nonstrikers and strikers who ceased striking
before September 13, 1967, and that the 40 employees
who remained on strike until its termination and were
recalled to their jobs by Respondent as temporary
employees after the termination of the strike, were denied
preferences relating to recall or reinstatement or reduction
in force they would have had if they had not engaged in
the strike or abandoned it before its termination, and
which were given to nonstrikers and strikers who
abandoned the strike before its termination.
Respondent concedes that the strikers who had not
returned to work prior to September 13, 1967, received no
vacation pay for 1967, and that non-strikers and strikers
who abandoned the strike by September 13, 1967, and
were back on the payroll at that time, were paid wages for
the 2 weeks they did not work in August 1968, when the
plant was shut down for maintenance and repair,
supplemented by an amount equal to the amount in excess
of 2 weeks' pay they would have been entitled to receive
under the vacation benefits provision of the Last Contract.
There is no difference between the 1967, vacation pay
denied the strikers and the so-called supplemented 2
weeks' pay for no work given to the nonstrikers and the
strikers who abandoned the strike.
Respondent also concedes that in answer to inquiries of
39 of the above-described 40 temporary employees
relating to seniority they had acquired by tenure as
employees before the strike, it said that it had no answer,
and that it gave this answer because it did not consider
the "40" to be part of the roster of permanent employees,
and that in answer to the inquiry of one of the "40" about
seniority , it said that it did not have an answer as the
question whether they were employees was before the
Board in the representation case it had filed on September
14, 1967." The issue whether a person is an employee in
connection with the charge of a violation of Section
8(a)(l) and (3) of the Act in an unfair labor practice
proceeding is a matter to be considered and decided de
novo in the unfair labor practice proceeding . It is not
resolved in the representation proceeding." I have found
supra, that prima facie the strikers continued to be
employees during and after the strike and were entitled to
the benefits and preferences which they had earned during
this tenure as employees before the strike.
The evidence and findings as stated show prima facie
that in violation of Section 8(a)(1) and (3) of the Act,
"Sec. 13 of the Act.
"Sec. 2(3) of the Act, and N.L.R.B. v. Fleetwood Trader Co.. 389 U.S.
375, affg. 153 NLRB 425.
"Respondent , in the representation case , contended that the strikers on
strike on September 14, 1967, were no longer employees by reason of its
decision in September 1967, that their services would not be needed by
reason of the loss of orders resulting from a labor dispute.
"N.L.R.B. v. Amalgamated Clothing Workers of America, and
N.L.R.B. v. Sagamore Shirt Company, 365 F .2d 898 (C.A.D.C.);
N.L.R.B. v. Heights Funeral Home , Inc., 385 F .2d 879 (C.A. 5); and
Ross Porto Plant . Inc., 166 NLRB No. 40, (TXD).
Respondent has discriminated against employees who were
on strike from January 29, 1967, to January 31, 1968, by
denying them vacation pay benefits for 1967, paid to
nonstrikers and strikers abandoning the strike before
September 13, 1967, and has discriminated against 40 of
the strikers recalled as temporary employees after the
termination of the strike by denying them seniority rights
and privileges they earned during their tenure as
employees before the strike, and given to nonstrikers,
strikers who abandoned the strike before termination, and
two employees recalled as permanent employees after the
strike. The denial of these seniority rights and privileges
to the recalled strikers while continuing to give them to
the other employees vested the latter group in fact with
superseniority.20 Discrimination because of participation in
concerted activity such as participation in a strike is
illegal conduct discouraging membership in a union,
violative of Section 8(a)(3) of the Act.21
General Counsel's prima facie case of discrimination by
Respondent shifted the burden of going forward to
Respondent and of presenting substantial business
justifications for the discrimination."
Respondent contends that the right to vacation pay, if
it does exist, could only stem from contract or from
established customs and practices. Respondent then argues
that no contract was in effect during the period from May
1966, through 1967, and thereafter, so the right is not
from contract. I agree that the right could not arise from
contract as the Last Contract was legally terminated,
effective May 18, 1966.23 Respondent then follows with the
contention that striking employees not on the payroll on
May 1, 1967, had no right either by established custom or
practice or by extension of the last contract for the reason
that on October 4, 1966, Steelworkers rejected
Respondent's proposal that past practices, economic and
noneconomic, remain in effect for the period of the
negotiations, and later on October 4, 1966, rejected
Respondent's proposal that the provisions of the last
contract remain in effect during the period of negotiations.
In other words, they abandoned or waived their right to
vacation pay by refusing to agree to the retention of all
customs and practices and to all provisions of the last
contract.
Refusal to enter into a contract to retain rights already
possessed does not constitute abandonment of, or waiver
of these rights. The first strike Respondent experienced in
its 90 years of existence was one initiated to by
Steelworkers on January 29, 1967. Therefore, no striking
employees absent from the payroll of May 1, of any year
prior to 1967, requested vacation benefits for that year.
Nor did Respondent decide or have to decide during the
17 years of collective-bargaining relations, particularly
from 1960, to May 16, 1966, whether striking employees
not on the payroll on May 1 were entitled to vacation
benefits including vacation pay. Moreover, the Last
Contract was not extended by the parties for the period of
the negotiations. So the striking employees had no right
by custom or practice, or by contract, to abandon or
waive.
"N.L.R.B . v. Great Dane Traders, Inc., 388 U.S. 26; N.L.R B. v.
Fleetwood Trailers Co., 389 U.S. 375; N.L.R.B. v. Frick Co., 397 F.2d
956 (C.A. 3); Kroger Co. v. N.L.R.B., 401 F.2d 682 (C.A. 6).
"N.L.R.B. v. Erie Resistor Corp ., 373 U .S. 221; and N . L.R.B. v. Great
Dane Trailers, Inc., 388 U.S. 26.
"N.L R.B. v. Great Dane Traders , Inc., 388 U.S. 26.
"Knight Morley Corp., 116 NLRB 140.
DUNCAN FOUNDRY AND MACHINE 273
I. have found that the strikers' right to 1967, vacation
pay stems from the Act. A waiver of this right must be an
expressed waiver and not one to be inferred.14 The
rejection by Steelworkers of Respondent's proposal of the
retention of all past practices, economic or noneconomic,
that were established during Respondent's
collective-bargaining relations with Employees
Association, the former bargaining representative of
Respondent's employees, is not an expressed waiver of a
statutory right, but one, at most, to be inferred. Neither is
the rejection by Steelworkers of the proposal of the
retention of all of the provisions of the Last Contract.
Respondent also argues that by the language of article
XI of the last contract and the language of similar
provisions in prior contracts effective from 1960,
Respondent ' s interpretation of this language to mean that
an employee to be entitled to vacation benefits had, inter
alia , to be on the payroll on May 1 of the year the
vacation benefits were given , Respondent ' s denial of
vacation benefits to employees who were not on the
payroll on May 1, and the acquescience of Employees
Association and the employees it represented with respect
to both Respondent's interpretation of the vacation
benefits provisions of the contracts, and its practice in
administering them, Respondent had a vested right by
established custom or practice to deny vacation benefits to
all employees , including those on strike, who were not on
the May 1 payroll, and the striking employees expressly
waived their statutory right to be protected against
discrimination for engaging in a protected activity."
I find no merit in this argument of Respondent . First of
all, the relevant contract language refers only to
continuous employment prior to May 1, employment on
May 1, and working in 60 percent of the payroll periods
in the 12 months prior to May 1. It is silent about
presence on payroll on May 1. Moreover, prior to May 1,
1967, and thereafter, Respondent was not faced with the
problem of determining whether strikers not on the
payroll on May I but who were in continuous employment
prior to May 1, were employees on May 1, and worked 60
percent of the payroll periods in the 12 months prior to
May 1, were entitled to vacation benefits. It is true that
Respondent had to make this determination with respect
to employees not on the payroll on May 1 because of
layoff, sickness, or authorized leave, and decided against
their eligibility. But employees on layoff, or absent
because of sickness or authorized leave, may not be
equated with employees absent from the May 1 payroll
because they were engaging in their statutory right to
strike and were relying on their statutory right to be
protected from discrimination for engaging in this
protected activity. 16
I do not find in these circumstances any evidence that
Respondent had a contract right, or a right arising from
established custom or practice to deny strikers 1967,
vacation pay because they were striking on May 1, 1967,
and not on the payroll at that time, or that the striking
employees waived their statutory right to strike and to be
free from discrimination for engaging in this protected
activity. A contrary ruling would be a holding that
"Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, 1412.
"See Shell Oil Co., 149 NLRB 283, 285.
"N.L.R.B. v. Frick Co ., 397 F . 2d 956 (C.A. 3), enfg. 161 NLRB 1089,
1107. Respondent 's policy to consider employees absent from the payroll
on May I because of sickness or authorized leave to have been on the May
l payroll if they returned to work before October 1, and the fact that the
strikers were still striking on October 1, 1967, do not affect the issue.
Respondent had the power to render impotent an Act of
Congress enacted into law in the public interest.
I find no merit in the defense that vacation pay for
1967, is a bargainable issue, and this issue cannot be
resolved because the employees have no majority
representative with which it can be bargained. It is
undisputed that a question regarding the right of
Steelworkers to represent Respondent's employees as
collective-bargaining representative was raised by petitions
Employees Association and Respondent filed on
September 13, 1967, and September 14, 1967, respectively,
and issues regarding vacation benefits and seniority as
well as other issues were not resolved in the bargaining
due to an impasse, and the termination of the bargaining
on the filing of the Employee Associations' petition on
September 13, 1967. However, strikers' vacation pay for
1967, and seniority rights and privileges for recalled
strikers, identified as temporary employees, stemming
from tenure as employees prior to the strike, are not
bargainable issues.
Negotiation of issues relating to wages, hours and other
terms and conditions of employment by representatives of
management and employees to reach a
collective-bargaining contract to be effective in futero on
execution of the whole contract or when agreement on
each provision is reached does not constitute a waiver of
an already existing statutory right or even an already
existing right by established custom or practice or by
contract. Neither does it constitute an admission by the
employees' representative that the subject matter of the
prior existing right is a bargainable issue, and the right
does not exist. Nor does a waiver arise from an agreement
reached on a contract provision providing benefits that
include already existing benefits coupled with a proposal
by the bargaining representative that the provision be
made retroactive, or from a proposal by the employees'
representative that includes vacation pay benefits by
statutory right as well as benefits not covered by the
statutory right, with or without an accompanying proposal
that the proposal on being accepted be made retroactive.
The evidence shows Steelworkers proposed that eligibility
for 1967 pay be premised on strike time as well as time
worked before the strike. Nor do any of the above
bargaining situations constitute an admission that all of
the subject matter involved in a bargaining situation is
bargainable by the parties.
Steelworkers clearly disclosed in its letter of March 20,
1968, to Respondent that it had not made such a waiver
or admission during bargaining, when in reply to
Respondent's letter of March 8, 1968, in which
Respondent stated that the 1967 vacation pay for strikers
was a bargainable issue, it said that the rights of strikers
to vacation pay existed "as a matter of national policy
and law" and not on past or future bargaining between
Respondent and Steelworkers. The Examiner finds merit
in this statement of Steelworkers.
The 40 employees, identified by Respondent as
temporary employees, recalled by Respondent after the
strike, sometime in March or April 1968, are not to be
equated with new employees. This is clear from the
Supreme Court' s decisions in N.L.R.B. v. Fleetwood
Trailers Co., 389 U.S. 375, and in N.L.R.B. v. Erie
Resistor Corp., 373 U.S. 221. They had not been
permanently replaced." At the time of the recall, they
were employees with seniority rights and privileges they
had accumulated prior to the time they went on strike,
even though they were recalled only to meet an emergency
order. These seniority rights and privileges are factors to
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be considered in rehiring , and layoff or other reduction in
force. When Respondent in March or April 1968, replied
to the inquiries of the 40 employees about seniority by the
statement it did not have an answer , and gave this answer
because they were not on the roster of Respondent's
permanent employees , and in its notice of June 5 , 1968, to
employees that any reduction in force would be made only
in the group of the 40 employees, Respondent in fact
considered these employees as new employees, and as
employees who had lost any seniority rights and privileges
they had accumulated prior to the strike. By this position,
Respondent , in fact bestowed on the nonstrikers , and the
strikers who abandoned the strike and returned to work
before its termination preferences relating to rehiring,
layoff and other reduction in force that it denied the 40
employees. This action amounted to superseniority.28
Respondent argues that its estimate in September 1967,
of the castings it would produce in 1968 and 1969, based
on the projection of its production in the 1967, strike
period would be approximately what it was during this
strike period, or approximately 50 percent of its
production in 1965 and 1966. On this estimate, it
concluded that it would need only 175 to 200 employees,
the number then employed plus approximately an
additional 25 more, and there would be no need for the
approximately 175 employees on strike. It reasoned that
the production needs in 1968 and 1969 would be the same
as in 1967, because in 1968 and 1969, it would still be
involved in a labor dispute, and Caterpillar Tractor Co.,
to which it had shipped 60 percent of its production in
1966, and a few other customers, would rely on other
suppliers until the labor dispute was resolved.
Respondent considered that the strike and the contest
between Employees Association and Steelworkers for
collective - bargaining representative initiated by Employees
Association's petition of September 13, 1967, and its
petition of September 14, 1967, would keep the labor
dispute going until through 1969. In its questioning of
Steelworkers ' majority representative status that it
initiated in its petition of September 14, 1967, and
particularly in the election of January 26, 27, and 28,
Respondent took the position that the strikers were no
longer employees . As found above , it took this same
position at the termination of the strike.
The denial of seniority rights with respect to rehiring
and reduction in force to the 40 former strikers recalled
after the strike to produce castings to meet an emergency
order, if legal, at most gave Respondent the opportunity
to lay them off or terminate them prior to taking this
action against non-strikers and strikers who returned to
work before the termination of the strike. If the strikers
were accorded the seniority rights and privileges, some of
them would have preferences in future rehiring , and might
well have them over the non-strikers and the strikers who
returned before the strike's termination in case of a
reduction in force. Conceivably there might have been a
slight money saving to Respondent , although it is not
apparent.
In these circumstances , and on this evidence , I find no
substantial business or economic justification in the denial
of the seniority rights and privileges to the 40 recalled
strikers which in fact accorded superseniority to the
nonstrikers and strikers who returned to work prior to the
termination of the strike. On the other hand, this
discrimination, coming as it did at the time Respondent
was contending that Steelworkers no longer represented a
majority of its employees because the strikers were no
longer employees, discouraged membership in
Steelworkers.
Respondent has failed to present substantial business or
economic justification for its discrimination against
striking employees by denying them 1967 vacation pay,
and by denying to those of them recalled after the
termination of the strike seniority rights and privileges
connected with rehiring and layoff or other reduction in
force accruing to them before the strike and after being
recalled to employment following the strike. Respondent
has, therefore, discriminated against employees by this
conduct in violation of Section 8(a)(3) and (1) of the Act.29
From the above evidence, findings and analysis, I
conclude and find that it was apparent to Respondent that
its discrimination against the striking employees would
have the foreseeable consequence of discouragement of
membership in the Steelworkers. Denial on September 21,
1967, of vacation pay for 1967, to striking employees who
were members of or represented by Steelworkers, the
certified bargaining representative , after paying vacation
pay to nonstriking employees and strikers who ceased
striking and returned to work, and shortly after
Employees Association filed a petition for representation
on September 13, 1967, and Respondent filed a petition
for representation on September 13, 1967, in which these
petitioners contended that Steelworkers was no longer the
collective -bargaining representative , is conduct that carried
on its face discouragement of membership in
Steelworkers. Denial to recalled strikers shortly after the
termination of the strike seniority rights and privileges
accuring to them prior to the strike, also carried on its
face discouragement of membership in Steelworkers. For
this reason , Respondent illegally discriminated against the
striking employees in violation of Section 8(a)(1) and (3)
of the Act irrespective of the presence or absence of
business or economic justifications. The illegal motive is
inferred from Respondent's engaging in the conduct even
though the consequences were foreseen.J°
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
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 obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in conduct
violative of the Act, I shall recommend that Respondent
be ordered to cease and desist from engaging in such
conduct, and take such affirmative action as appears
necessary to effectuate the purposes of the Act.
Having found that Respondent discriminatorily
withheld from employees on strike on January 30, 1968,
or who had terminated striking and returned to work, but
"See N. L.R B. v . Mackay Radio and Telegraph Co., 304 U.S. 333.
"N.L.R.B. v. Fleetwood Trailers, Co., supra . 389 U.S. 375, and
N.L.R.B. v. Eric Resistor Corp., 373 U.S. 221.
"Cases cited In. 20, supra.
J.N.L.R .B. v. Erie Resistor Corp.. 373 U.S. 221; Kroger v. N.L.R.B.,
(C.A. 6) enfg. in part 164 NLRB No. 54; and Radio Officers v. N.L.R.B..
347 U.S. 17.
DUNCAN FOUNDRY AND MACHINE 275
had not returned to work by September 13, 1967, vacation
pay for 1967 , to which they were entitled , I shall
recommend that Respondent be required to pay to each of
them as 1967 , vacation pay the 2 weeks' wages
Respondent paid for his particular job, or a similar job, to
employees for the 2 weeks ' pay period in August 1967,
when they did not work plus any supplemental amount to
which he is entitled under the formula used by Respondent
to compute the supplemental amounts Respondent paid
the employees who received 1967 vacation pay. The
amount due each employee shall bear interest at 6 percent
from the first date employees were paid the 2 weeks' pay
for the 2-week period in August , 1967, they did not work
supplemented by amounts computed under the formula in
article XI of the Last Contract. Isis Plumbing & Heating
Company , 138 NLRB 716, and N. L.R.B. v . Great Dane
Trailers , Inc., 397 F.2d 29 (C.A. 5).
Having found that Respondent denied seniority rights
and privileges , dealing with priority in employment in its
restoring or reducing its work force , to 40 strikers who
were recalled as temporary employees to their jobs in
March or April 1968, to which they were entitled by
reason of their employment prior to the strike , I shall
recommend that they be given these seniority rights and
privileges effective the first day they began work after
recall.
I shall also recommend that Respondent , upon request,
make available to the Board or its agents for inspection
and copying or reproduction, all books and records
necessary or helpful in determining the identity of the
employees to whom vacation pay is due , as herein
provided , and in computing the amounts thereof, and in
determining the identity of the employees to whom the
aforesaid seniority rights and privileges are to be
accorded.
Upon the basis of the foregoing findings of fact, and
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent Duncan Foundry and Machine Works,
Inc., is an employer within the meaning of Section 2(2) of
the Act and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and United
Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
2. Respondent discriminated against employees in
violation of Sections 8(a)(l) and (3) of the Act by
withholding from striking employees who were on strike
during the entire period from January 29, 1967, to
January 31, 1968, or ceased striking during the period but
did not return to work by September 13, 1967, vacation
pay for 1967, based on hours worked from May 1, 1966,
to January 29, 1967.
3. Respondent discriminated against employees in
violation of Section 8(a)(I) and (3) of the Act by denying
to 40 striking employees it recalled to their jobs as
temporary employees in March or April 1968, after
termination of the strike on January 31, 1968, seniority
rights and privileges dealing with priority in employment
in its restoring or reducing its work force to which these
employees were entitled by reason of tenure as employees
prior to January 29, 1967.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and pursuant to Section 10(c) of the Act, Trial
Examiner hereby issues the following:
RECOMMENDED ORDER
1. Respondent Duncan Foundry and Machine Works,
Inc., its officers, agents, successors, and assigns, shall:
A. Cease and desist from:
1. Discouraging membership in United Steelworkers of
America, AFL-CIO, or any other labor organization, by
discriminatorily withholding vacation pay or other
vacation benefits from striking employees who do not
return to work prior to the termination of a strike or prior
to the time Respondent, in a representation petition it files
during the strike, contends they are no longer employees.
2. Discouraging membership in United Steelworkers of
America, AFL-CIO, or any other labor organization, by
discriminatorily denying to striking employees it recalls
after termination of a strike seniority rights and privileges
relating to priority of employment when it restores or
reduces its work force that these strikers earn prior to the
time they go on strike.
3. Engaging in like or related conduct that interferes
with, restrains or coerces employees in rights they have to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or by
discriminating against them in regard to hire or tenure of
employment or any term or condition of employment.
B. Take the following action which will effectuate the
purposes of the Act:
1. Pay to each of the striking employees who remained
on strike from January 29, 1967, to January 31, 1968, or
who returned to work prior to January 31, 1968, but not
before September 13, 1967, vacation pay for 1967,
withheld from him, in an amount equal to 2 weeks' pay
plus any supplemental amount to which he is entitled
under the formula used by Respondent to compute the
supplemental amounts it paid the employees who received
vacation pay for 1967, plus interest at 6 percent from the
first date the employees given vacation pay for 1967, were
paid 2 weeks' pay for the 2 weeks in August 1967, they
did not work supplemented by amounts computed under
article XI of the Last Contract as provided in the above
section called "The Remedy"; and
2. Restore to the striking employees recalled as
temporary employees in March or April 1967, after the
termination of the strike from January 29, 1967, to
January 31, 1968, effective the first day of their
employment after recall, the seniority rights and privileges
relating to priority in employment on the restoring or
reducing of work force, which Respondent has denied
these employees.
3. Preserve, and upon request, make available to the
Board or its agents, for examination and copying, or
reproduction, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records relevant and material to Respondent
Employer's compliance with the provisions of this Order.
4. Post at its plant in Alton, Illinois , copies of the
attached notice marked "Appendix."" Copies of said
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice , on forms provided by the Regional Director for
Region 14 , shall, after being duly signed by Respondent's
representative , be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by
any other material.
5. Notify the Regional Director for Region 14, in
writing , within 20 days from the date of this
Recommended Order, what steps the Respondent has
taken to comply herewith."
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of this Trial
Examiner ' s Decision and Recommended Order
Respondent notifies the Regional Director in writing that
it will comply with the foregoing recommendations, the
National Labor Relations Board issue an Order requiring
the Respondent to take the action aforesaid.
Recommendations of a Trial Examiner" in the notice . In the further event
that the Board 's Order be enforced by a decree of the United States Court
of Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within IO days from the date of this Order , what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommended order of a Trial
Examiner 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 membership in United
Steelworkers of America , AFL-CIO, or any other labor
organization , by discriminatorily withholding vacation
pay or other vacation benefits from striking employees
who do not return to work prior to the termination of
the strike or prior to the time Respondent, in a
representation proceeding , contends they are no longer
employees.
WE WILL NOT discourage membership in United
Steelworkers of America, AFL-CIO, or any other labor
organization , by discriminatorily denying to striking
employees recalled after termination of a strike the
seniority rights and privileges relating to priority of
employment when we restore or reduce our work force
that these strikers earn prior to the time they go on
strike.
WE WILL pay to striking employees the vacation pay
for 1967 that we withheld from them , and restore to
striking employees recalled to their jobs after the
termination of the strike on January 31, 1968, the
seniority rights and privileges we denied them.
All our employees are free to become or refrain from
becoming , members of United Steelworkers of America,
AFL-CIO, or any other labor organization.
Dated By
DUNCAN FOUNDRY AND
MACHINE WORKS, INC.
(Employer)
(Representative ) (Title)
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office , 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri
63102, Telephone 662-4167.
1