J. I. Case Co.

National Labor Relations Board - Board Decisions

Jul 10, 1951

95 N.L.R.B. 47 (N.L.R.B. 1951)

J. I. CASE COMPANY 47
Office clerks employed at Foundation community building.-These
clerks maintain the time records of the Foundation employees and
prepare the payroll checks; they maintain records of supplies used
on the various work projects. They record the moneys received from
the operations of the various Foundation facilities, e'. g., dairy farm,
filling station; they also record the charges for light, heat, and coal
supplied to the company employees. On occasion these clerks come
into contact with the operating and maintenance employees of the
Foundation, but on the whole it appears that their relationship to
those employees is analogous to that of office clerical employees to
production and maintenance employees. We find lacking here the
considerations which would justify the inclusion of these clerical
employees in the unit and therefore shall exclude them.
Editor of the Foundation weekly newspaper, photographer, play-
ground leader, and assistant playground leader.-In the instant case
the titles are descriptive of the duties that these employees perform.
We find it unnecessary to determine whether or not these employees
are professional employees within the meaning of the Act but will
exclude them from the unit herein found appropriate because their
duties and interests are dissimilar to tho ae of the maintenance and
operating employees included in the unit.
We find, therefore, a single unit composed of the following em-
ployees employed by the Employer in connection with the Bemiston
Village Council Foundation to be the appropriate unit for collective
bargaining purposes within the meaning of Section 9 (b) of the Act:
Handymen, land improvement employees, the painter, landscaper,
janitors of the community building and school, auto mechanics and
assistants, counter attendants, filling station and garage clerk, and
storeroom clerks, but excluding dairy farm workers, office clerks, the
editor of the weekly newspaper, photographer, playground leader and
assistant playground leader, village superintendent, and all foremen
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
J. I. CASE COMPANY, BETTENDORF WORKS and LOCAL 1008, INTERNA-
TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, C. I. O. Case No. 18-CA-228.
July 10, 1951
Decision and Order
On April 6,1951, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
95 NLRB No. 14.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found.
that the Respondent had not engaged in certain other unfair labor
practices, and recommended that those allegations of the complaint
be dismissed. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and briefs in support of
their exceptions.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
Trial Examiner's rulings are affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record.
in the case, and adopts the findings, conclusions, and recommenda--
tions of the Trial Examiner.
We find, as did the Trial Examiner, that the Respondent discrimi-
nated against Howard L. Rennaker, Edward Merck, Raymond L..
Lofflin, Charles E. Massey, and Julius Runge in violation of Section-
8 (a) (1) and (3) of the Act.
Evidence was introduced of a rule, promulgated by Respondent in-
1948, which prohibited all solicitation on company property at any-
time. The Trial Examiner recognized that rules established by em-
ployers which prohibit union solicitation on an employer's premises
on the employees' own time are too broad and interfere with basic
rights guaranteed to employees by Section 7 of the Act 2 The Board
has held that the prohibition against discussing union affairs or solicit-
ing union members on the Respondent's premises on the employees'
own time is per se violative of Section 8 (a) (1) of the Act, whether or
not it is enforced, as it has the necessary effect of restraining employees
in the exercise of rights guaranteed by the Act .3 The Trial Examiner
found, however, and we agree, that the complaint as to this should be
dismissed, because the record does not show that the rule promulgated
by the Respondent in 1948 is still in effect at its Bettendorf plant.
The Trial Examiner apparently on the basis of his appraisal of
the credibility of the witnesses, found no independent violations of
Section 8 (a) (1) of the Act. No reason appears for reversing the
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Houston and Reynolds].
'Le Tourneau Company of Georgia and Republic Aviation Corp. v. N. L. R. B., 324
U. S. 793. , -
3 Ohio1As8ociated Telephone Co., 91 NLRB 932.
J. I. CASE COMPANY 49)
credibility findings of the Trial Examiner. The complaint is there-
fore dismissed insofar as it alleges such violations
Order
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board orders that the J. I. Case Company, Bettendorf'
Works, Bettendorf, Iowa, its officers, agents, successors, and assigns,.
shall, :
1. Cease and desist from :
(a) Discouraging membership in Local 1008, International Union,.
United Automobile, Aircraft ,'Agricultural Implement Workers of
America, C. T. 0., or in any other labor organization of its employees,.
by discharging or laying off any of its employees, or discriminating in
any other manner in respect to their hire and tenure of employment,.
or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 1008, International Union,.
United Automobile, Aircraft & Agricultural Implement Workers of
America, C. I. 0., or any other labor organization, to bargain collec-
tively 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 to refrain from any or all of
such activities, except to the extent that such right maybe affected by
an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Howard L. Rennaker, Edward Merck, and Raymond
L. Lofflin immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any loss of pay
they may have suffered by reason of the Respondent's discrimination
against them, in the manner described in the section of the Inter-
mediate Report entitled "The remedy."
(b) Make whole Charles E. Massey and Julius Runge for any loss
of pay each may have suffered by reason of the Respondent's discrimi-
* On the basis of the record , Member Houston would find that the Respondent violated
Section 8 (a) (1) of the Act by the statement of Don Hart , then one of Respondent's
foremen, to employee Fred A. Freeman , that he was told to "get" Freeman, but that
he could not do-so if Freeman removed his steward ' s button. The clear import of this
remark was a threat to discharge Freeman if he continued his union activity. That the
threat was not in fact carried out in nowise negates the element of coercion implicit
in the ' statement.
Zo DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation, in the manner set forth in the section of the Intermediate Re-
port entitled "The remedy."
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records and reports, social
security payment cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due and the
right of reinstatement under the terms of this Order. .
(d) Post at its plant at Bettendorf, Iowa, copies of the notice.at-
tached to the Intermediate Report and marked "Appendix A." 5
Copies of said notice, to be furnished by the Regional Director for the
Eighteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Eighteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it
alleges that the Respondent prohibited the solicitation of membership
in the Union on Respondent's property at any time, including the em-
ployees' nonworking time, questioned its employees regarding their
union activities, warned them not to engage in union activities, and
restricted the movement, in the plant, of its employees who engaged
in union activities, while permitting freedom of movement of em-
ployees who did not engage in union activities.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed by Local 1008 , International
Union, United Automobile, Aircraft & Agricultural Implement Workers of
America, C. I. 0., herein called the Union, the General Counsel of the National
Labor Relations Board,' by the Regional Director for the Eighteenth Region
(Minneapolis . Minnesota), issued a complaint dated February 7, 1951, against
J. I. Case Company, Bettendorf Works, herein called the Respondent, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 ( a) (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
. S Said notice, however, is amended by striking from line 3 thereof, the words, "The
Recommendations of a Trial Examiner," and substituting in lieu thereof, the words, "A
Decision and Order." In the event that this Order is enforced by a' decree of a United
States Court of Appeals, there shall be inserted before the words "A Decision and Order,"
the words, "A Decree of the United States Court of Appeals Enforcing."
1 The General Counsel and his representative at the hearing are herein referred to as
the General Counsel, and the National Labor Relations Board as the Board.
J. I. CASE COMPANY 51
136, herein, called the Act. Copies of the charges, complaint, and. notice of
hearing were duly served by General Counsel on all other parties.
With respect to unfair labor practices, the complaint alleged in substance that
the Respondent violated Section 8. (a) (3) of the Act by discharging and re-
fusing to reinstate Howard L. Rennaker, Raymond L. Lofflin, and. Edward
Merck, and laying off Charles E. Massey and Julius Runge z because they joined
and assisted the Union and engaged in other concerted activities ; and Section 8
(a) (1) of the Act by said alleged acts and by prohibiting solicitation for union
membership on nonworking time, discriminatorily restricting movement of union
representatives, and interrogating employees concerning and warning them
against union activities.
In its answer, the Respondent denied the allegations of the complaint with re-
spect to unfair labor practices, but admitted that it had discharged the first three
employees named above and temporarily laid off the other two.
Pursuant to notice, a hearing was held at Davenport, Iowa, from March 5 to 7,
1951, inclusive, before the undersigned Trial Examiner duly designated by the
Chief Trial Examiner, All parties were represented by. counsel, participated in
the hearing, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues.
At the opening of the hearing,' the Respondent moved to strike paragraphs 5
and 6 of the complaint on the grounds that no charge was filed to cover such
allegations and that no investigation was made with respect thereto. The under-
signed ruled that the matters alleged fall within the interference charged in the
original and amended charges ; as for the question of failure to investigate such
matters, the undersigned stated that he would not rule on the administrative
actions of General Counsel. The motion to strike was therefore denied as such
but, without objection, it was considered as a request for a bill of particulars.
Counsel for the respective parties agreed on certain elements of particularity,
which were furnished orally. The Respondent's request for a direction that fur-
ther particulars be furnished was denied.
On the second day,of the hearing, the undersigned was advised that the Re-
spondent had moved to quash a most exhaustive subpena duces tecum served on
it by General Counsel, which motion had been referred, so it was further stated,
to the undersigned. By that time the Respondent had produced the employment
ret,ords of the five employees involved, General Counsel was satisfied, and without
action on the motion to quash (which had not yet reached the undersigned) it was
agreed that no further steps would be taken under the subpena or the motion.
At the close of the hearing, the Respondent moved to dismiss the complaint.
Decision was reserved, and said motion is now disposed of in accordance with
the conclusions and recommendations below. Counsel for the Union availed him-
self of the opportunity to argue orally ; pursuant to leave granted to all parties,
a brief was thereafter filed by the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation, operates a plant at Bettendorf, Iowa,
where it is engaged in the manufacture and sale of farm implements. In this
operation during the year ending October 31, 1949, the Respondent purchased raw
9 Initials have been supplied as warranted by the evidence.
3 A motion to strike had been made with service of the answer.
P61974-52-vol. 95-5
52 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
material valued at more than $1,000,000, of which more than 90 percent was
shipped to the plant from points outside the State of Iowa. Sales of manufac-
tured products during the same period exceeded $1,000,000, more than 90 percent
of, which represented shipments to points outside of the State of Iowa. It was
stipulated at the hearing that the- figures for interstate operations during 1950
are subsantially the same as those set forth above.
It was admitted and it Is found that the Respondent is engaged in commerce
within the meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
It was admitted and it is found that Local 1008, International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., is
a labor organization and admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
"References hereinafter made to the evidence , not ascribed to named witnesses,
represent uncontradicted testimony , or findings where conflicts . have been re-
solved ; findings are made herein on the basis of reliable , probative , and substan-
tial evidence on the record considered as a whole and the preponderance of the"
evidence taken.
-'Except in connection with the paragraph received in evidence as General Coun-
sel's Exhibit 3, hereinafter considered , no reference is made or reliance placed in
these findings on the evidence concerning matters which occurred more than 6
months prior to the filing and service of the charge herein. Such evidence was
received on the assurance that it was "relevant and material" as showing "the
setting and background ( in) which the acts complain ( ed) of took place"; and
further that without it "some of the facts . . . in this case might not be intelli-
gible." The background evidence here submitted is not necessary or helpful
either to cast light on the acts complained of or to make them intelligible.'
A. The alleged violation' of Section 8 (a) (1)
Zhere. was received in evidence as General Counsel's Exhibit 3 a paragraph
headed "Solicitations,"' which it was stipulated is part of a 35-page booklet' en-
titled "Where We Work Together" published by the Respondent in April 1948 and
distributed among its employees. It was specifically noted that it was not
stipulated that the exhibit is now in effect. Beyond the stipulation as noted,
the only evidence of distribution is that Rennaker and Merck received copies at
about the time they were employed in October and January 1948 respectively.
It does not appear that the rule, which is unwarranted to the extent that
it forbids solicitation of union membership on nonworking time, was ever foimally
+' The findings of concerted activity and the Respondent's knowledge thereof do not
depend upon the fact that the Union had previously been certified as collective bargaining
representative. Nor does the background warrant a finding of other interference as
herein alleged.
' "Independent," so-called, as distinguished from "derivative" violation of Section
8 (a) (1). .
' "Solicitations. The company and Its employees cooperate in many worthwhile
charitable drives but obviously cannot lend their support to every fund-raising enterprise
that is launched. Hat-passing, the sale of tickets, circulation of petitions, etc., are
regarded by many people as a nuisance. Therefore the solicitation of funds, the sale
of tickets for any purpose, the operation of raffles and lotteries, the distribution of
literature and the solicitation of membership in any organization on company time or on
company property is absolutely prohibited unless specific permission has been obtained
in advance from the Industrial Relations Supervisor who will arrange for the posting
of approved notices."
J. I. CASE COMPANY 53
discontinued or recalled from employees to whom it was distributed, or that the
employees have been notified that it is no longer in effect.` But, on the other
hand, while prohibition of union solicitation by employees on nonworking time
constitutes unlawful interference and restraint,' there is no evidence that the rule
has been recognized or enforced; and any presumption of continuance is out-
weighed by the absence of evidence of recognition by employees or issuance or
enforcement by the Respondent during the last 21/2 years. No interference
is found on the basis of this paragraph.
Kedich, the general foreman, approached Merck on the job one day and,, accord-
ing•to the latter, stated "he didn't think it was right the way we was going about
organizing." Kedich's explanation was not questioned; he had remonstrated
with Merck concerning his dropping hooks on a fellow employee's head to get him
to join the Union. Further, while Kedich denied, telling Merck that he had.
learned from his own experience as a member of a union that there was no point.
messing around the Union if he couldn't be president, such a statement would,
if made, be a privileged expression of, opinion. Neither•of, these items constitutes
unlawful interference.
Statements attributed to Clallin, at that. time, superintendent of assembly, and
Kedich at the time of Merck's discharge and to the effect that the strike was not
the "right way," that these employees "went. too far," and that Merck could
have been a foreman are part of and merged in the discriminatory discharge
hereinafter found.
Another employee, Radford P. Johnston, uncertain of the date when the
remarks were made, testified that his former foreman warned him against wear
ing union buttons and "talking union around and from the time (he) entered
the shop in the morning until (he) left in the evening." Neither the foreman
nor any of the other employees named by Johnston'as being present on these
occasions is still in the Respondent's employ. It is clear that many employees
wore union buttons, a circumstance which did not appear to cause the "pretty
hot time" allegedly mentioned. As for the testimony concerning union activities,
the reference is isolated ; as noted above, Kedich, when he discussed organizing
activities with Merck, referred to the methods used, not to the activities as such.
No more impressive as to credibility was Fred A. Freeman, a former employee,
who testified that another foreman, likewise no longer in the Respondent's
employ, stated that he was told to "get" Freeman but that he could not do so
if the latter removed his steward's button. Freeman continued to wear his union
buttons until -he left some 2 months later. Nor, if made, would the foreman's
statement to this steward that he had heard that the latter was trying to sign up
members on company time be a violation of the Act sing, without more, it would
constitute a lawful act of policing..
Rennaker handed his foreman a union leaflet outside the plant one day.
Thereafter the foreman remarked to him that he noted his distribution of such
"propaganda." The foreman expressed to the distributor of the leaflet his
opinion of it without threat ; that was no violation.
On the basis of lack of credibility where that is involved or as a matter of law,
the undersigned dismisses the allegations of "independent" violation of Section
8 (a) (1) of the Act. Reference is made particularly to the extensive violations
7 We can only speculate whether, if the Respondent decided to discontinue the rule, it
was influenced to make no announcement to.tbat effect by any knowledge that its employees
had not read the booklet. Rennaker and Merck, although intimately concerned with
union activities, indicated -a marked lack of interest in the booklet.; It does not appear
that they ever read it. .
8 Peyton Packing Company, Inc., 49 NLRB 828. .
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated by General Counsel in his oral bill of particulars at the hearing, con-
cerning which no proof was offered. -
B. The alleged violation of Section 8 (a) (3)
At about or shortly after noon on June 5, 1950, Rennaker, Merck, Lofflin,
Massey, and Runge attempted to organize and themselves joined an incipient
strike in protest against the discharge that morning of a union steward,° and to
prevent similar action against other representatives of the Union.
After discussion in the plant cafeteria, a group of employees marched in file
down several aisles seeking support from other employees. There were accre-
tions and withdrawals from the line of march, the greatest number at any one
time being 12 or 15; the anticipated or hoped for support did not materialize. It
was testified on the one hand, that 'this march took place between noon and
12: 15 p. m1° directly from the cafeteria ; and on.the other, that the first 3 named
left their work stations at 12: 15 and marched to the main aisle, where they
joined the other 2. It is not disputed that just before the marchers returned
to their jobs, whether at 12: 15 or 12: 30, the 5 alleged discriminatees were the
only protestants, and were observed by supervisors.
The Respondent attempted to justify the discharge of Rennaker, Merck, and
Lofflin on June 6, 1950, on the stated ground that they had "walked off job with-
out the permission of foreman and attempted to incite a plant walkout" ; and the
2-day layoff imposed on Massey and Runge on June 7, 1950, for the following rea-
son in each case : "Helping & participating in unlawful walkout, June 5, 1950,
12: 15 to 12: 30."
All five had engaged in union activities : Rennaker and Loffiin were officers
of the Union, all were members, and all but Runge were stewards. It is-found
that the Respondent knew that they'had engaged in such activities, the bases
of such knowledge being, among others, their display of union buttons, the dis-
tribution of union literature, talks between them and representatives of the
Respondent , and the fact that they had been observed "participating in (the)
unlawful walkout."
Rennaker 's foreman , who it is found was a supervisor within the meaning
of the Act, was among those who witnessed the abortive strike. Further, Kedich,
who was apparently immediately subordinate to Claflin, had discussed union
organizational activity with Merck, as 'noted above. At Claflin's request, he
had investigated and reported to the latter on the incident of June 5. Yet
Claflin, who effected the discharges , maintained that he did not then know the
reason or "purpose" of the walkout. He was :dramatically close to a solution
when he pointedly asked Merck whether the incident had any relation to the
steward against whom action had been taken the previous day. But Merck said,
"No,"" and although Claflin stressed the importance of what had happened
by pointing out to him that he could have caused a plant walkout,' Kedich
likewise does not appear to have told him what the purpose of the walkout was :
In fact, the morning before, Claflin had seen Rennaker and Merck talking with
the previously discharged steward, and bad ordered the two back to work. He
was at least consistent, and testified on cross-examination that he first learned
that Rennaker, Merck, and Lofflin were active in the Union when he spoke with
The latter was reinstated 4 days later.
These employees ' lunch period ended at 12: 15.
'- Kedich did not hear this.
12 Claflin testified that Merck replied that, only he, Rennaker, and Loffiin were involved:
But admittedly at least five were "involved" and known to be even if Claflin did not then
know who the other two were ; and Lofflin later told him that they were seeking recognition
of the Union , which again indicated more than three.
J. I.' CASE COMPANY 55
them on June 6. But this testimony and his denial of knowledge of the facts
(even as he denied recollection on the stand) are not credited in view of the
investigation made at his direction, the report to him, the history of occur-
rences which preceded the discharges, and the importance of the facts. It is
found that the Respondent" and Claflin specifically, prior to the discharges
on June 6, had knowledge that those involved in the walkout of June 5 were
engaging in concerted activity within the meaning of Section 7 of the Act.
If the attempt to organize a strike on June 6 was on the employees' own time,
as General Counsel's witnesses urged, they were clearly engaging in lawful
concerted activities. They were lawfully on the Respondent's premises ; they
had as much right to plan and to attempt to strike as to spend their time in
any other legal pursuit. That a strike might adversely affect the Respondent's
interests or cause its displeasure is no more reason for banning it under such
circumstances than under any other : the adverse effect and the displeasure
are not unique. True, the group decided against continuing their efforts when
their number dwindled. But to the extent that they acted, theirs was an incip-
ient strike and constituted concerted activity.
The otherwise unexplained" 20-minute delay in returning to work on the
part of Rennaker and his working crew and the deduction by Massey and Runge
of 15 minutes from their working time, suggest that at least some of the strike
effort was on working time. But that fact does not change its character as
concerted activity." It is not charged that they acted unlawfully unless the
walkout was per se unlawful, and the reference to it as such in the supervisor's
reports on Massey and Runge was not descriptive but emphatic. There is no
warrant for holding that this concerted activity was unlawful. Had this small
group been at work and "walked off the job without the permission of the fore-
man," only to return a few minutes later, theirs would be recognized as lawful
concerted activity. There is no claim that they did any more here. 16 (If Gen-
eral Counsel's version be accepted, they did less since the element of walking
off the job would be missing.) The attempted justification for the discharges
of June 6 and the layoffs of June 7 is insufficient. It is found that the Respond-
ent by said acts discriminated 17 against these five employees in violation of
Section 8 (a) (3) of the Act.
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 the Respondent described in Section I,
above, have a close, intimate, and substantial relation to. trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce. -
13 See also Quest-Shon Mark Brassiere Co., Inc ., 80 NLRB 1149.
14 Rennaker had "nothing to say " when Claflin , at the time of the discharge, charged
him with walking off the job.
is Kennametal, Inc., 80 NLI1B 1481.
11 The concerted nature of the activities is not affected by the fact that the Respondent
made no deduction for the working time lost in the case of some of these employees, nor
by the fact that the latter did not list such time as nonworking time. This was not•a
so-called "partial strike," with employees refusing to work while remaining on the job.
No secret was made of the fact that they were not on the job; they were rather thwarted
by the failure of others to join in a walkout.
11 The evidence does not support the allegation of the complaint that the Respondent
"has refused to reinstate" Rennaker , Merck, and Lofin ; they did not seek reemployment.
This is not to suggest that any of them was under obligation to seek reemployment.
Rather, it was the Respondent ' s duty to offer reinstatement after it had wrongfully
discharged them.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since, it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, it will be recommended
that it cease and desist therefrom and take certain affirmative action in order
to effectuate the policies of the Act.
- It has been found that the Respondent, by discharging Rennaker, Merck, and
Lofflin, and by temporarily laying off Massey and Runge, discriminated against
them in regard to their hire and tenure of employment in violation of Section 8
-(a) (3) of the Act. It will therefore be recommended that the Respondent offer
to Rennaker and Merck immediate reinstatement to their former or substantially
equivalent positions," without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may have suffered by
reason of the discriminatory action afore-mentioned, by payment to each of
them of a sum of money equal to that which he would normally have earned less
his net earnings," which sum shall be computed 20 on a quarterly basis during the
period from the discriminatory discharge to the date of a proper offer of rein-
statement. It is also recommended that the Board order the Respondent to
make available to the Board upon request payroll and other records to facilitate
f:he checking of the amount of back pay due 21 In the case of Loftin, who was in the
Army at the time of the hearing, it will be recommended that the Respondent
offer. reinstatement upon his reapplication within ninety (90) days after his
discharge from the Army, and make payment,as indicated above for the period
from the discriminatory discharge to:the date of his induction and further from
his reapplication to the date. of a proper:offer.of reinstatement.
- It. will be further recommended. that the Respondent make Massey and
Runge whole as above indicated for-their 2-day layoff.
The discrimination found herein. indicates a purpose to. limit the lawful
concerted activities of the Respondent's employees. Such purpose is related to
.other unfair labor practices, and it is found that the danger of their commis-
sion is reasonably to be apprehended. Abroad cease and desist order will there-
fore be recommended, prohibiting infringement. in 'any manner upon the, rights
guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the. undersigned makes-the following:
CONCLUSIONS OF LAW
-. 1. , Local 1008, International Union, United Automobile, Aircraft & Agricul-
tural Implement Workers of. America, C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating, in regard to the hire and tenure of employment of How-
ard L. Rennaker, Edward Merck, Raymond L. Lofflin, Charles E. Massey, and
Julius Runge, thereby discouraging membership in the Union, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By such discrimination, thereby interfering with, restraining and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the
1" The Chase National Bank of the City of New York, San Juan , Puerto Rico , Branch,
65 NLRB 827.
. 1" Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
m F. W. Woolworth Company, 90 NLRB 289.
11 Ibid.
J
TOM THUMB STORES, INC. 57
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are -unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in other unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
[Recommended Order omitted from publication 'in this volume.]
TOM THUMB STORES, INC. and RETAIL CLERKS INTERNATIONAL
ASSOCIATION, LocAL UNION 368, AFL. Case No. 16-CA-190. July
1011951,
Decision and Order
On March 9, 1951, Trial Examiner George A. Downing issued his
Intermediate Report 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 copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Beard 1 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and, for the reasons indicated below, finds merit in certain of the
Respondent's exceptions.
On August 16, 1949, November 15, 1949, and November 28, 1949,
respectively, a charge, amended charge, and a second amended charge
were filed in this proceeding, alleging various violations by the Re-
spondent of Section 8 (a) (3). and 8 (a) (1) of the Act. On December
16, 1949, before any complaint in this matter was issued, the Board
dismissed a petition.of the charging party herein for certification as
bargaining representative of the Respondent's employees,2 stating':
"Although we do not find that the Employer's operations are unrelated
to commerce, we do not believe that the effect of such operations on
interstate commerce is so substantial that we should assert jurisdiction
over an enterprise of the character here involved."
Despite the Board's refusal to assert jurisdiction over the Respond-
ent's operations in December of 1949, the former General Counsel, who
by statute had sole authority over the disposition of charges, did not
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three. member panel [ Members Houston, Reynolds,
and Styles].
f Tom Thumb Stores, Inc., 87 NLRB 1062.
95 NLRB No. 16.