Textile Machine Works, Inc.

National Labor Relations Board - Board Decisions

Nov 5, 1951

96 N.L.R.B. 1333 (N.L.R.B. 1951)

TEXTILE. MACHINE WORKS, INC. 1333
season, mows the lawn. He carries no gun, and has no guard duties.
Accordingly, we find that he is a maintenance employee, and we shall
include him in the unit.
On the Employer's payroll at the time of the hearing were 46 college
students, whom the Petitioner would exclude as temporary employees.
The record does not show how many of these employees work in the
West Texas-New Mexico Division. The Employer asserts that it has
no classification of "temporary employees," and that many college
students remain on the payroll as permanent employees. It thus ap-
pears that none of these employees work only part-time; that they do
the same work as all permanent employees in the same classifications;
and that they are subject to the same company rules and working con-
ditions. The record does not show, as the Petitioner asserts, that they
have a limited tenure of employment. In these circumstances, we
shall include the college students in the unit.'
Accordingly, we find that all production and maintenance employ-
ees in the Employer's West Texas-New Mexico Division, including
drilling crews, temporary employees (college students), gang pushers,
drillers or tool pushers, the mechanic-foreman, and the watchman-
janitor, but excluding clerical and professional employees, guards, and
all supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
B The Sheffield Corp., 94 NLRB 1781.
TEXTILE MACHINE WORKS, INC. and PAUL J. GASSERT, ET AL.
TEXTILE MACHINE WORKS, INC. and WILLIAM G. BAUER
TEXTILE MACHINE WORKS, INC. and UNITED STEEL WORKERS OF
AMERICA, C. I. O. Cases Nos. 4-CA-118,4-CA-277, and 4-CA-343.
November j, 1951
Decision and Order
STATEMENT OF THE CASE
Upon separate charges duly filed (a) on September 8, 1948, by Paul
H. Gassert and other individuals, (b) on July 22, 1949, by William
G. Bauer, and (c) on January 12, 1950, by United Steel Workers of
America, C. I. 0., herein called the Union, the General Counsel of
96 NLRB No. 195.
974176-52-vol. 96-85
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board, herein called the General Counsel
and the Board, respectively, by the Regional Director for the Fourth
Region (Philadelphia, Pennsylvania), issued an order on June 5,
1950, consolidating the above-captioned cases, and simultaneously
therewith issued his complaint alleging that Textile Machine Works,
Inc., Wyomissing, Pennsylvania, had engaged in, and was engaging in,
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint, the order of consolidation, the charges, and
notice of hearing were duly served upon the Respondent and the
charging parties.
With respect to the unfair labor practices, the complaint alleged, in
substance, that the Respondent (1) during September and October
1947 discharged 85 employees, herein called the discriminatees, whose
names are listed in the appendix attached hereto, and that during the
period beginning about March 20, 1948, to about January 31, 1950,
these persons applied to the Respondent for employment or reinstate-
ment, but the Respondent refused and continues to ref use to employ
or to reinstate them, because they had assisted the Union or engaged
in other concerted activities, in violation of Section 8 (a) (3) of the
Act; (2) and since March 20, 1948, informed its employees or appli-
cants for employment that they were being and would be considered
unfavorably because of their union sympathies and activities, inter-
fered with the tenure of employment by other employers of some of
the discriminatees, because of their union sympathies and activities,
and by threats of reprisal and promises of benefit warned or persuaded
its employees to refrain from union or concerted activities, thereby
interfering with the exercise of the rights of its employees as guaran-
teed by Section 7 of the Act, and violating Section 8 (a) (1) of the
Act. Pursuant to the order of Trial Examiner Louis Plost, dated
June 12, 1950, granting the Respondent's motion for a bill of particu-
lars, the General Counsel, on June 13, 1950, specified certain named
individuals and dates in connection with the allegations of paragraph
11 of the complaint.
In its answer, duly filed, the Respondent admitted the allegations
of the complaint concerning its corporate existence and the nature and
extent of the business transacted by it. The answer also admitted that
the Respondent had discharged the discriminatees and refused and
continues to refuse to employ or to reinstate them, but denied that
the refusal to employ or reinstate was for discriminatory reasons vio-
lative of the Act. The answer also denied the commission of the other
unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held in Reading, Pennsylvania,
on various dates between June 19, 1950, and August 3, 1950, before
TEXTILE MACHINE WORKS, INC. 1335
Hamilton Gardner, the Trial Examiner duly designated by the Chief
Trial Examiner. The Respondent and General Counsel were repre-
sented by counsel. The Union was not represented by counsel and
did not participate in the hearing. All the participating parties were
afforded full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence pertinent to the issues . During
the hearing the Trial Examiner granted the General Counsel's motion
to amend the complaint by adding the name of Arthur Bordner to
the above-mentioned list of discriminatees.1 The General Counsel's
motion to dismiss the complaint as to George Gehring for lack of
proof was also granted. At the close of the General Counsel's case
the Trial Examiner granted the Respondent's motion to dismiss para-
graph 11 (b) of the complaint which was unopposed by the General
Counsel. The Trial Examiner also granted the Respondent's motion
to dismiss paragraph 11 (c) of the complaint, and took under advise-
ment the Respondent's motion to dismiss the complaint as to Stanley
Tsakeris. The motion as to Tsakeris was thereafter denied by the
Trial Examiner in his Intermediate Report.2 At the close of the
hearing the Trial Examiner granted without objection the General
Counsel's motion to conform the proof with respect to minor varia-
tions between the pleadings and proof such as the spelling of names
and dates.
Various rulings were made by the Trial Examiner during the course
of the hearing on other motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and, except as hereinafter indicated, finds that no prejudicial
error was committed. With these exceptions the rulings are hereby
affirmed. All parties were afforded an opportunity to file briefs and
proposed findings of fact and conclusions of law. The Respondent
a.nd the General Counsel filed briefs with the Trial Examiner.
On January 30, 1951, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the Respondent had engaged in unfair labor practices
1 The Regional Director had previously refused to issue a complaint based on charges
filed in behalf of Bordner on the ground of insufficient evidence of discrimination The
Respondent contends that because of such refusal the General Counsel's amendment should
have been denied we affirm the Trial Examiner's ruling. The failure of a Regional
Director to proceed on a charge is not res judicete of the issues , and does not estop the
General Counsel from reinstating the charges by enlargement of the complaint . Republic
Steel Corporation, 62 NLRB 1005, 1022.
1 The Respondent excepts to the Trial Examiner 's ruling as to Tsakeris because the
latter had not testified at the hearing . The Respondent contends that any testimony
with respect to Tsakeris is therefore hearsay , and that because he was not a witness the
Respondent was deprived of its rights of confrontation or cross-examination. The evi-
dence relative to the Respondent 's discrimination against Tsakeris is based upon the
testimony of witnesses ( Stayer and Youse ) who had direct , not hearsay , knowledge of the
pertinent facts, and whom the Respondent was permitted to cross-examine concerning
these facts . We are aware of no rule of law which restricts the Board , in proceedings
such as this , from finding discrimination unless the person discriminated against appears
as a witness . Accordingly we find the Respondent 's exception without merit.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of Section 8 (a) (3) of the Act by refusing to employ 83
of the discriminatees and dismissed the complaint as to 2 of them,
Arthur J. Bordner and Earl G. Detweiler. The Trial Examiner also
found that the Respondent had violated Section 8 (a) (1) of the Act
by unlawfully interrogating applicants for employment regarding
their union and concerted activities and by urging them to refrain
from such activities. He further found that the Respondent's un-
lawful conduct affects interstate commerce, and recommended that
the Respondent cease and desist from these activities and take certain
affirmative action to effectuate the policies of the Act. Thereafter
the Respondent and the General Counsel filed exceptions to the In-
termediate Report and supporting briefs. The Respondent also re-
quested oral argument. This request is hereby denied as, in our
opinion, the record and the exceptions and briefs adequately present
the issues and the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and
Members Murdock and Styles].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and makes the following
findings, conclusions, and order :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation engaged at Wyo-
missing, Pennsylvania, in the manufacture, sale, and distribution of
braiding and knitting machines. Annual purchases of raw materials
by the Respondent are valued in excess of $1,000,000 of which 25 per-
cent represents shipments from other States. The Respondent an-
nually produces finished products valued in excess of $10,000,000, of
which more than 85 percent is shipped to points in other States.
We find that the Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The United Steel Workers of America, C. I. 0., is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Collective bargaining relations between the Respondent and the
Union before August 1947
The Respondent 's plant consists of 2 main operating units, the ma-
chine shop which in 1947 employed approximately 3,000 employees,
TEXTILE MACHINE WORKS, INC. 1337
and the foundry which, during the same period, employed 'approxi-
mately 315 employees. On April 14, 1946, the Union was certified
by the Board as the bargaining representative for a unit limited to
the foundry employees. No bargaining agreement, however, was
consummated following this certification. On February 24, 1947,
following a Board-directed election, the Union was certified as the
representative for a unit composed of both machine shop and foundry
employees. Thereafter, between April 2, 1947, and July 16, 1947,
representatives of the Respondent and the Union met 7 times to nego-
tiate a contract, but no agreement was reached. At these meetings the
Union presented to the Respondent the names of employees serving
as stewards and grievance committeemen s The record also shows the
Respondent's genera] familiarity with the names of the officers of the
Union's locals in the machine shop and foundry .4
B. The August 1941' strike
During the afternoon of August 1, 1947, a work stoppage occurred
in department 53 of the machine shop in which approximately 200
employees were involved. As a result of this incident 5 the Respond-
ent, on August 4, issued notice that it had discharged Gassert, the
department 53 steward, and had laid off the other employees of de-
partment 53 until August 11. On August 6 the Union instituted a
strike of the Respondent's plant which lasted until September 3.
The foundry was completely inoperative during the strike, but the
machine shop was only partly affected. The Respondent's attendance
records show that approximately 1,300 machine shop employees ab-
sented themselves from their jobs on August 6, but that during the
ensuing days of the strike this number diminished to a point where,
on September 3, only 128 machine shop employees in excess of the
number absent on the day before the strike were recorded absent.
Considering the fact that 200 of the absentees on August 5 were the
laid-off employees of department 53, of whom many probably did not
return to work during the strike, it would appear that approximately
300 machine shop employees were still out at the end of the strike.
This conclusion is supported by the testimony of Respondent's em-
ployment manager, David Fleischmann, that there were approxi-
mately 3,000 employees in the machine shop at the beginning of the
strike and 2,700 at the end.
8 At least 28 of the discriminatees had been members of the Union while employed for
the Respondent . Of these, 15 had been stewards , 5 had been members of negotiating or
grievance committees , 4 had been officers, and 8 had been active organizers for the Union.
4It appears that there were separate locals for the machine shop and foundry which
continued to exist after the Union 's certification for the single over -all unit.
S The events relating to this incident are discussed at greater length, infra, in connec-
tion with the finding of discrimination as to Paul H Gassert.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clearly the Respondent knew from its attendance records which
employees absented themselves from their jobs during the strike and
which of them voluntarily returned to work before the end of the
strike e It also may reasonably be inferred from evidence in the rec-
oord that the Respondent knew the identity of employees engaging in
picketing. Picket lines had been established at the outset of the strike
which focused their activities about the main gates of the machine shop
and foundry. There is abundant testimony revealing that photo-
graphs of the picket lines were taken on several occasions by the Re-
spondent from its premises and from the roof of the Berkshire
Knitting Mills plant 7 which is near the Respondent's plant. Indeed,
William E. Kaul, superintendent of the Respondent's machine shop,
testified that photographs of the picket lines were taken by the Re-
spondent on the advice of counsel. In addition the record establishes
that the picketing was observed at both the machine shop and foundry
by several of Respondent's supervisors including Employment Man-
ager Fleischmann, Kaul, Foundry Superintendent Herman F. Good,
Foundry Office Manager Rentz, Foundry Foreman Heater, and
Machine Shop Foremen Impink and Hill. Eighty-one of the dis-
criminatees participated in picketing. In view of the foregoing
circumstances, we find that the Respondent had knowledge of such
activity on their part.
This finding is strengthened by the fact that most of these 81 persons
had worked many years for the Respondent, and the fact that the
supervisors who had observed them had also been associated for many
years with the Respondent and were thus in a favorable position to
make individual identifications of the pickets. We note, for example,
Superintendent Good's testimony that in entering and leaving the
foundry gate each day he could observe the pickets at that location
and that practically all of the foundry employees "were out there at
one time or another." As to the number of pickets involved, it appears
that as a result of a back-to-work movement of the machine shop em-
ployees, the number of pickets dwindled as the strike progressed.
Although there are estimates of 2,000 pickets in the early days of the
strike, the Respondent's supervisors in their testimony fix the number
of pickets at 300 to 500 throughout the strike. Picket-line attendance
records maintained by the Union on a daily basis show that 115 em-
ployees picketed the machine shop on August 20, and 83 on August 27.
Those records show also that 104 employees picketed the foundry on
August 20, 106 on August 26, and 100 on August 29. On the basis of
the Union's records, which we believe are more reliable than the mere
U The Respondent compiled summaries of attendance during the strike based on data
obtained from time cards and payrolls . These were presented in evidence . Further proof
of the Respondent 's knowledge of the identity of absent employees is derived from the fact
that the Respondent sent letters to them during the strike urging them to return to work.
7 The Respondent and Berkshire Knitting Mills are commonly owned.
TEXTILE MACHINE WORKS, INC. 1339
estimates of the Respondent's supervisors, the number of pickets, espe-
cially near the end of the strike, was sufficiently limited so as to in-
crease the opportunity for individual identification by the supervisors
who observed them.
All of the discriminatees were on strike. We find, in view of the
circumstances related above, that the Respondent had knowledge of
their participation in the strike and their picketing activities."
On September 3, 1947, a committee of employees representing the
Union informed Fleischmann that the strikers desired to end the
strike and to return to work. Fleischmann replied that all employees
intending to return should sign the register in the Respondent's em-
ployment office. Fleischmann testified that he did not advise the
committee that all employees who registered would be called to work,
but several members of the committee testified that he stated that
all the employees would be summoned to report for work, as soon as
jobs became available, and that he requested that they enter their
names, addresses, and telephone numbers in the register. After the
committee communicated Fleischmann's instructions to the strikers,
the latter entered the employment office, signed the register," and
departed from the Respondent's premises. The strike thereupon
terminated.
C. The terminations of employment in September and October 1947
Two or three days after the strike ended the foundry resumed oper-
ations with a limited force of 200 employees . Because of curtailed
operations caused by the strike only those employees required to meet
existing needs were then recalled . Although the machine shop did
not operate at full capacity during the strike, the record does not
reveal whether any of the strikers were recalled to this shop after
September 3. The record shows, however , that during the period
immediately after the strike the Respondent filled 267 vacancies in
both the machine shop and the foundry by hiring new employees in
8 The extent of the Respondent 's precise knowledge of the activities of its striking
employees is indicated by the credited testimony of several of the discriminatees . Mervin
Mengel applied to his foreman for his job about 3 weeks after the strike started but was
referred to Fleischmann . When Mengel asked Fleischmann 2 days later why he had not
been reinstated , the latter looked at a book and stated , " I see you were on the picket line."
He then told Mengel he would have to wait until called. Charles Di Stasio and Leroy
Haring sought to return to their jobs during the strike but were informed by Fleischmann
that they could not do so at that time because of their strike activities . In March 1948
Fleischmann remarked to Bernard Maurer that he would not be reemployed because he
had picketed . Foundry Office Manager Rentz ' comments in October 1948 to William
Valerlo, Stanley Savage, and Harry Steiner to the effect that they were not recalled because
they had picketed are set out at length hereinafter.
9 Any possible doubt as to the Respondent 's knowledge of the identity of employees who
remained on strike until the end is dissipated by this circumstance We need not resolve
the conflict as to whether Fleischmann on this occasion stated that employees signing
the register would be recalled. We are convinced, however, particularly because it was
not specifically denied by Fleischmann , that he did advise them to register in the manner
indicated above and that in so doing they made the requested entries.
1340 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
numerous job classifications for which many of the former strikers
who were not recalled were qualified.- At the same time the Respond-
ent notified approximately 200 of the former strikers who had not been
recalled, including the discriminatees, that their employment had
been terminated. The termination notices were in the form of letters
dated September 6 and October 15, 1947, informing the persons affected
that their services were no longer required, but stating no explanation
or reason for this action.
Thirty of the discriminatees testified that on one or more occasions
immediately before and after receiving their termination notices they
contacted the Respondent's employment office or their former super-
visors and asked to be recalled to work, but none succeeded in being
restored to a job. On these occasions they were informed that jobs,
were not then available and were told to wait until called, or, in some
cases, they were given to understand that the Respondent would not
recall them because of their strike activities. Thus, Foundry Manager
Rentz, in response to William Valerio's inquiry as to why he had not
been recalled, having previously learned that Valerio had picketed,
stated, "That's it." This incident occurred about 4 weeks after the
strike ended. One week before then Rentz had remarked to Stanley
Savage, who had inquired about his job, "Savage, you were on the
picket line. Good is at a meeting and your job depends on the outcome
of this meeting." Harry Steiner spoke to Rentz about returning to
his job when he received his October 15 termination letter. Rentz
observed that there was no opening, but Steiner queried, "Is it because
I was on the picket line?" To this Rentz replied, "That may be."
Although these comments were denied by Rentz, the testimony of
the foregoing witnesses was specifically credited by the Trial Exam-
iner. Because the Trial Examiner was able to observe the demeanor
of the witnesses, and because the clear preponderance of all the rele-
vant evidence does not convince us that the Trial Examiner's resolu-
tion was incorrect, we hereby adopt these credibility findings.",
D. Applications for employment by the discriminatees and the
Respondent's refusal to employ them
On March 21, 1948, a meeting was held by Andrew Kondrath, then
a subdistrict director of the union," which was attended by approxi-
10 This evidence is contained in General Counsel's Exhibit 19 which is a list of employees
hired by the Respondent between September 2, 1947, and March 12, 1948. The Trial
Examiner admitted this exhibit for impeachment purposes only. We regard the informa-
tion contained in this exhibit , however, as an integral part of the events against which
the conduct alleged in the complaint to be unlawful must be examined . The exhibit,
therefore , is hereby admitted into evidence without the limitation imposed thereon by the
Trial Examiner.
11 Standard Dry Wall Products , Inc., 91 NLRB 544, enf. 188 F 2d 362 ( C. A. 3). Sim-
ilarly , we resolve other conflicts in the testimony of witnesses by relying upon the Trial
Examiner 's credibility findings, which we hereby adopt.
12 At the time of the hearing Kondrath no longer had any official connection with the
Union.
TEXTILE MACHINE WORKS, INC. 1341
-mately 120 former employees of the Respondent including about 25
of the discriminatees. As a. result of events which transpired at this
meeting,l" at least 27 of the discriminatees appeared on the following
day at the Respondent's employment office and applied for jobs.
During the ensuing days similar applications were made by other
discriminatees, so that between March 22 and April 30 not less than
^61- discriminatees tendered such applications. In addition 11 dis-
criminatees testified that they had applied for employment in March
-without specifying a certain day, 3 testified that they applied in
March, but before March 22, and 1 applied on February 7. The rest
of the discriminatees applied later in 1948 and in 1949. Some applied
repeatedly as late as January 1950.14
The Trial Examiner in his Intermediate Report concluded that
because of the attendance at the union meeting by some of the dis-
criminatees, and the resultant applications for employment made by
these persons and other discriminatees who subsequently learned about
the union meeting from them, the "mass applications" by the dis-
criminatees constituted concerted union activity by them within 6
months of the date of the first charge filed on September 8, 1948.
We deem it unnecessary to adopt this conclusion by the Trial Exam-
iner, for whether the discriminatees engaged in concerted unit activity
within the foregoing 6-month period is not at issue in this proceeding 15
When the discriminatees applied at the Respondent's employment
office they were interviewed by clerks, who, on the basis of informa-
tion obtained from the personnel records on file in the office and from
answers to specific questions given by the discriminatees, were able
to identify them as the former strikers whose employment was termi-
nated in September and October 1947. A few of the discriminatees
were also interviewed by Fleischmann. In general all received the
same advice. They were told that no jobs were then available, but
were instructed to sign the register with the understanding that they
13 The Trial Examiner excluded testimony which the General Counsel sought to elicit
from this witness regarding the events of the meeting , and rejected the General Counsel's
offer of proof to the effect that Kondrath had informed his audience that the Respondent
was hiring , and had advised those desiring to obtain jobs with the Respondent to apply.
We believe that this testimony is of value in establishing continuity to the sequence of
events in this proceeding and could have been admitted for this purpose . We do not,
however, need to rely upon this testimony in reaching our ultimate conclusions , and shall,
therefore , not reverse these rulings by the Trial Examiner.
'* The complaint alleges that all the discriminatees ( except Bordner, whose name was
added to the complaint by amendment at the hearing ) applied to the Respondent for
employment or reinstatement during the period from March 20, 1948, to January 31, 1950,
and the Respondent's answer admits this allegation.
15 The Trial Examiner evidently believed that the General Counsel's theory was based
on the Respondent 's discrimination against the disciiminatees for union and concerted
activities in which they had engaged within 6 months before the filing date of the charge,
whereas the complaint alleges discriminatory conduct by the Respondent within the 6-
month period motivated by the Union and concerted activities of the discriminatees which
had occurred before then. It was not , therefore , incumbent on the General Counsel, as
the Respondent argues, to show knowledge on its part of union activities or membership
by the discriminatees during the 6-month period preceding the filing of the charge.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be called when jobs became available. All signed the register
except those who were told by the clerks that they need not do so
because they had previously registered upon the termination of the
strike in September 1947. Because of the permanency of the register,
the fact that the registrations included information which enabled
the Respondent to communicate -with the discriminatees at such time
-as it desired to offer them employment, and the further fact that the
Respondent informed them that they would be called when jobs
became available, we find that the foregoing applications by the dis-
criminatees were understood by them and by the Respondent to be
continuing applications for employment 16
We reject the Respondent's contention that these applications were
not for employment, but for "reinstatement" as this term is tech-
nically used by the Board. In so finding we are mindful of the fact
that some of the applications were requests for "our old jobs back,"
"reinstatement to our old jobs," or for "reemployment." Whatever
the language used by the applicants, however, it is clear that in no
sense did they expressly or impliedly attach conditions to their re-
quests such as a demand for return to a former position with back
pay, seniority, and other rights and privileges which the Board cus-
tomarily specifies in a remedial order requiring an employer to rein-
state employees. We are satisfied that the discriminatees, who with-
out exception are industrial factory workers, did not use the terms
they employed in the technical sense of labor law experts, but merely
expressed themselves in the ordinary manner of former employees
seeking jobs from their old employer, and presented themselves as
new applicants seeking new employment .17
E. The Respondent's refusal to hire the discriminatees despite the
availability of suitable employment for them
Machine Shop Hirings
Robert L. Davis, C. Paul Fisher, Mervin. C. Mengel, Stephen W.
Polaha, Clarence F. Warczyglowa, Joseph Marko, Peter M. Tere fenko,
Elmer E. Rupp, Franklin M. Shatter, Harry S. Koch, and William
G. Batter were classified by the Respondent as bench hands, 12-4.
Davis, Fisher, Mengel, Polaha, and Warczyglowa applied to the Re-
spondent for employment on March 22, 1948; Marko and Terefenko
applied March 23, 1948; Rupp and Shalter applied March 24, 1948;
Koch applied in March 1948; Bauer applied in January 1948 and in
the fall of 1948. The Respondent hired 57 bench hands, 12-4, between
11 Cf. Sax v. N L R. B., 171 F . 2d 1082 ( C. A 7).
11 Pennwoven, Inc., 94 NLRB 175; Childs Company, 93 NLRB 281 . Fleischmann's
understanding that the discriminatees were seeking work as new employees is further
evidenced by the unrefuted testimony of Clarence F. Warczyglowa that Fleischmann
remarked to him and other discriminatees when they applied "the only way you would get
your job back is to start as new employees."
TEXTILE MACHINE WORKS, INC. 1343
March 25 and December 21, 1948. It is found that the above named
discriminatees were qualified to fill the bench hand jobs for which
employees were hired by the Respondent after they had filed their
applications for employment.
Pauline Avola Brubaker, Paul H. Gassert, Joseph J. Grimm, John
Marko, George M. Sheehan, Stella Quaintance, William D. Undheim,
and Lester L. Matz were classified as automatic machine tenders, 22-1.
Grimm, Marko, and Sheehan applied on March 22, 1948; Brubaker,
Gassert, and Quaintance applied March 24, 1948. The Respondent
hired 15 automatic machine tenders, 22-1, between June 7 and Oc-
tober 25, 1948. It is found that the above-named discriminatees were
qualified to fill the automatic machine tender jobs for which employees
were hired following their applications.
Conrad H. Chlebowski, Catherine M. Frees, and Robert Guistwite
were classified as punch press operators, 8-1. Frees and Guistwite
applied on March 24 and Chlebowski on March 26, 1948. On March
25, 1948, the Respondent hired a punch press operator, 8-1. Frees
and Guistwite were clearly qualified for this opening. We find that
all 3 of these discriminatees were qualified for the automatic machine
tender jobs, referred to above, for which 15 persons were hired between
June 7 and October 25, 1948, as no particular experience was required
for these jobs which called for a learning period of only 2 weeks.
In addition, Frees' personnel record shows that she had formerly
worked for the Respondent as an inspector and as a bench hand.
Between March 31 and November 15, 1948, the Respondent hired 8
floor inspectors, 11-1, 13 inspectors, 11-4, and 1 metallurgical in-
spector, 11-3, for jobs in department 89 where Frees had worked as
an inspector. We find that Frees was qualified for one of these jobs
in view of her past experience and particularly because of the testi-
mony of Assistant Superintendent Smith that there are inspector
jobs throughout the plant which do not require much skill.
Walter N. Cieniewicz and Paul W. Pennypacker were classified as
bench machinists, 2-5, Cieniewicz' personnel record also shows duty as
a KM finish erector machinist. Arthur J. Bordner is listed on his
personnel record as a machinist. Cieniewicz applied on March 22 or
23, 1948, Pennypacker in March 1948, and Bordner on March 7, 1948.
The Respondent hired two machinists, 2-3, on May 10 and May 24,
1948, and two bench machinists, 2-5, on June 14 and September 20,
1948. Two machinists II, 2-6, were hired on August 16 and 30, 1948,
and two KM finish erector machinists, 2-8, were hired on August 16
and September 20, 1948. According to Assistant Superintendent
Kline's testimony the foregoing 2-3 and 2-6 classifications require the
basic skills of journeymen machinists, which we are satisfied are pos-
sessed by the above discriminatees. We therefore find they were quali-
fied to fill the openings in these classifications for which employees
: 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were hired after they applied. We find that Cieniewicz, because of
his special experience, was additionally qualified to fill the openings in
the 2-8 classification which occurred after he had applied.
Ferdinand J. Mayer, classified as a machinist-floor inspector, 2-20,
applied on March 22, 1948. On September 20, 1948, the Respondent
hired an employee to fill a vacancy in that classification for which
Mayer was clearly qualified.
James D. O'Connell, classified as a KM frame erector helper (non-
machinist), 2-11, had also worked for the Respondent as a painter.
James P. Robinson and Cletus R. Musser were classified as KM finish
-erector helpers (nonmachinist), 2-9. O'Connell applied in the spring
.of 1948; Robinson and Slusser applied respectively on March 22 and
24, 1948. Between March 29 and July 19, 1948, the Respondent hired
ES employees in the 2-9 classification for which Robinson and Sliisser
were clearly qualified. From May 13 to September 8, 1948, the Re-
spondent hired 12 brush painters, 36-3, for duty in the department
where O'Connell had formerly worked. We find that he was quali-
fied to fill these jobs.
Earl G. Detweiler, classified as a rotary surface grinder operator
3-7, applied February 7, 1948. The Respondent hired two employees
in that classification on September 27 and November 1, 1948, for which
Detweiler was qualified.
Philip Majka, classified as a surface grinder operator, 3-6, applied
March 22, 1948. The Respondent hired an employee in that classi-
fication on September 22, 1948, for which Majka was qualified.
Patsy DeMatt, classified as a planner operator II, 9-1, applied April
16, 1948. The Respondent hired an employee in that classification on
June 22, 1948, for which DeMatt was qualified.
Angelo Tomeo, classified as a truck driver, 21-1, applied on April 6,
1948. The Respondent hired 2 electric truck drivers, 21-2, on April
12 and April 19, 1948. Because of the closely related skills and duties
of the 21-1 and 21-2 classifications, we find that Tomeo was qualified
for the electric truck driver jobs filled by the Respondent. The Re-
spondent also hired 49 laborers, 16-8, between April 28, 1948, and
September 7, 1949. Tomeo was clearly qualified for one of these
openings. We find that Alpheus F. Groff, classified as a laborer,
16-8, who applied on March 28, 1948, also was qualified for one of the
openings in that classification filled by the Respondent.
Le Roy F. Haring, classified as a wood box maker, 17-4, applied in
February and April 1948. The Respondent hired eight employees
in that classification between March 29 and October 20, 1948, for which
Haring was qualified.
George A. Lutz, classified as a brush painter, 36-3, applied March
23, 1948. Lutz had also worked for the Respondent as a gardener.
As hereinbefore noted the Respondent hired 12 brush painters, 36-3,
TEXTILE MACHINE WORKS, INC. 1345
lietween May 13 and September 8, 1948, and- also hired a gardener, 34-4,
on June 7, 1948. Lutz was qualified for the openings filled by the
Respondent in both of these classifications.
John A. Strausser, classified as a sheet metal worker, 19-1, applied
in March and August 1948 and monthly in 1949. On November 22
and December 12, 1949, the Respondent hired two employees to fill
vacancies in that classification for which Strausser was qualified.
George I. Clay, classified as a packer 16-2, and Harry N. Krouse,
classified as tool clerk, 35-1, applied respectively on March 23 and 22,
1948. We find they were qualified to fill jobs as laborers for which the
Respondent hired numerous employees after they applied.
Charles P. Di Stasio was classified as a radial drill press operator,
6-1; his personnel record shows that he is an "all around drill press"
operator. Di Stasio applied on March 22, 1948. Thereafter, on
May 3 and May 20, 1948, the Respondent hired 2 gang drill press
operators, 6-7. Starting pay for the 6-1 and 6-7 jobs were the same.
There is also evidence of similarity and interchangeability of skills
and duties between these classifications in view of the testimony of
Assistant Superintendent Smith that all drill presses are related to
each other and perform the same general function. Accordingly,. we
find that Di Stasio was qualified to fill one of the available 6-7 jobs.
George F. Herzog, who was also classified as a gang drill press opera-
tor, 6-7, applied on March 22, 1948. He, too, was obviously qualified
to fill one of the available 6-7 jobs. George H. Berg, who was classi-
fied as a gang drill press operator, 6-7, applied in 1948 after November
and in January and November 1949. No jobs in his classifications
were filled after he applied, but Berg was qualified, according to his
personnel record to fill jobs as electric truck driver, 21-2, for which
two employees were hired in December 1948, one in February 1949,
and another in October 1949.
Bernard C. A. Maurer, classified as a needle straightener, 18-1,
applied March 22, 1948. The Respondent hired 16 employees to fill,
jobs in the 18-1 classification between April 20 and October 4, 1948.
Maurer was clearly qualified to fill these openings. Norman Davis,
classified as needle bar filler, 18-3, applied March 20, 1948. Three
employees were hired for jobs in the 18-3 classification between June
3 and July 14, 1948. Davis was obviously qualified for these jobs.
Marshall V. Stoyer, Stanley Tsakeris, Earnest A. Mouse, and Anthony
J. Pietrowski were classified as needle casters, 18-4. Pietrowski ap-
plied March 26, 1948, and the others in this category applied March
24, 1948. Tsakeris' personnel record shows that he had formerly
worked for the Respondent as a needle straightener, 18-1, and Pie-
trowski's record shows he had formerly worked as a needle bar filler,
18-3. We find, accordingly, that Tsakeris and Pietrowski were re-:
spectively qualified for the available 18-1 and 18-3 openings. In'
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the close similarity of skill and duties between the 18-4 and
the 18-1 and 18-3 classifications, we find that Stoyer and Youse were
also qualified for the available 18-1 and 18-3 openings.
Donald H. Dreher.and Harold R. Edinger were classified as job
setters II, 1-3. Dreher's records show that he was a precision ma-
chinist and was assigned to such duties by the Respondent before the
strike. During Edinger's tenure with the Respondent he had worked
for 3 years as a punch press operator, and, as a setup man, made
punches and dies in addition to setting up machines and checking their
operation. Dreher applied on March 25, 1948, and Edinger applied
March 3 and again on March 28, 1948. Between May 10 and October
25, 1918, the Respondent hired 3 precision machinists, 2-3, and from
March 29 to September 16, 1948, hired 12 borematic operators, 23-1,
for duty in department 17 where Dreher had last worked. We find
that Dreher was qualified for the 2-3 and 23-1 classifications for
which employees were hired. As hereinbefore noted, the Respond-
ent hired 15 automatic machine tenders, 22-1, from June 7 to October
25, 1948, of whom 9 were hired for duty in department 53 where
Edinger had worked as setup man. We find that he was qualified for
these jobs.
Foundry Hirings
John W. Aulenbach, Anthony Bianca, Walter S. Davis, William H.
Delcamp, Samuel S. Leone, and Charles I. Race were classified as
grinders , 50-32 . Bianca, Davis, Delcamp, and Leone applied on
March 22, 1948. Aulenbach applied in December 1948 and Race on
March 3 or 25, 1948. The Respondent hired 60 grinders , 50-32, be-
tween March 31, 1948, and December 27, 1949. We find that the
above-named discriminatees were qualified to fill the jobs for which
these employees were hired.
William C. Boyer was last employed by the Respondent as a laborer,
50-42, and had worked many years for the Respondent as a molder
"B", 50-11. Angelo Carabott and Russell J. Hartran f t were classified
as laborers , 50-42. Boyer applied March 23, 1948, and Hartranft on
April 1, 1948. The Respondent hired three laborers, 50 -42, from
March 25 to April 6, 1948 , and hired 'one molder "B", 50-11, and 2
molders "C", 50-12 between May and September 1948. The above-
named discriminatees were all qualified for the laborer jobs filled by
the Respondent , and Boyer was additionally qualified for the molder
jobs for which employees were hired.
Herman O. Burkhardt was classified as a coremaker "A", 50-15.
Robert E. Heist, William F. Miller, William H. Pike, Stanley Savage,
and William Valerio were classified as coremakers "B", 50-16. Ac-
cording to the testimony of these discriminatees and of Foundry
Superintendent Good , coremakers perform a variety of other foundry
TEXTILE MACHINE WORKS , INC. 1347
duties of a general labor or unskilled nature when they are not busy
with the duties of their specialty, including such tasks as sand sling-
ing, stocking the cupola, shifting weights, core carrying, and core
cleaning. Burkhardt applied August 26, 1948, Heist March 20 or 22,
1948, Miller April 2, 1948, Pike March 1948, and Savage and Valerio
applied on April 15, 1948. The Respondent hired a coremaker "C", on
November 23, 1948, and hired 2 coremakers, apparently in the same
grade, on June 5 and June 13, 1950. The above discriminatees were
clearly qualified for these jobs. In addition the Respondent hired
numerous foundry employees in a variety of classifications which re-
quired no special skills and short learning periods, and for which these
discriminatees were qualified, particularly because of their past ex-
perience in the Respondent's foundry. Thus between March 25, 1948,
and December 27, 1949, Respondent hired 49 common laborers, 50-42,
60 grinders, 50-32, 18 pourers, 50-48, 5 cupola chargers, 50-19, 5
crane operators, 50-22, 4 clippers, 50-33, 4 inspectors, 50-35, 3 mold
transferers, 50-51, 21 jacket handlers, 50-52, 5 mold dumpout men,
50-54, as well as several other employees -in additional classifications.
We find that the above-named discriminatees were all qualified to fill
openings in the foregoing classifications for which the Respondent
hired employees after their applications were made.
Clayton L. Beck, Aaron L. Becker, Thomas C. Gruber, Albert 0.
Hendricks, Clarence J. Kercher, Harry M. Steiner, and Walter W.
Wenrich were classified as molders "A", 50-10. Paul W. Bleiler, Cyrus
W. Speicher, and Ralph E. Troutman were classified as molders "B",
50-11. Bleiler, Hendricks, and Wenrich applied on March 22, 1948.
Gruber, Speicher, and Troutman applied March 23, 1948. Becker
applied in the spring of 1948, Beck and Kercher applied in August
1948, and Steiner applied in August 1949. The Respondent hired
2 molders "C", 50-12, on May 17 and September 30, 1948, and hired
it molder "B", 50-11, on August 9, 1948. Clearly these discriminatees
were qualified for such jobs. We find that they were also qualified for
the numerous semiskilled and unskilled foundry jobs for which the
Respondent hired employees between March 25, 1948, and December
21, 1949, particularly for the 18 jobs in the pourer, 50-48, classification
whose duties were related to those of molders.
Joseph Klein and Harold S. Ernst were classified as inspectors,
50-35. Following their applications on March 20 and 22, 1948, re-
spectively, the Respondent hired four inspectors, 50-35, between
December 21, 1948, and June 1, 1949. John A. Roth was classified
as a leader, 50-2, but had also worked as an inspector, crane operator,
grinder, and chipper. Roth applied on April 3, 1948. As detailed
above, the Respondent hired employees in the several classifications
in which these discriminatees were qualified after their applications
for employment.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clayton A. Schweitzer, who was classified as a chipper, 50-33, and.
had also worked as a laborer in the Respondent's foundry, applied in
December 1949 or January 1950. Thereafter, between February 23
and May 15, 1950, the Respondent hired two laborer-grinders and six
laborers. Schweitzer was obviously qualified to fill the openings for
which these employees were hired.
Leon W. Scheipe, classified as a sandblaster, 50-31, applied in March
1948. Harvey M. Mull, classified as a cupola and furnace tender,
50-20, applied March 23,1948. On May 3,1948, the Respondent hired
a sandblaster, 50-31, and on December 20, 1948, hired a cupola and
furnace tender, 50-20. Scheipe and Mull were clearly qualified for
those openings.
George H. Borden, classified as a pattern storage clerk, 50-37, a
classification which involved heavy manual work, applied on March
22, 1948. Norman E. Miller, classified, as a shipper, 50-36, Harvey H.
Smith, a core oven attendant, 50-27, and Ralph W. Swisher, a core
cleaner, 50-28, applied March 26, March 29, and April 7, 1948, re-
spectively. Each of these latter three had also performed duties as a
laborer in the Respondent's foundry. We find that each of the
above-named discriminatees was qualified for the several semiskilled
and unskilled openings hereinabove related for which the Respondent
hired employees following the filing of applications by those discrim-
inatees for employment.
The record thus establishes that following the applications for em-
ployment of all the discriminatees on the dates indicated, sufficient
job openings were available in the Respondent's machine shop and
foundry which the discriminatees were qualified to fill. Despite this
circumstance, none of the discriminatees was offered employment or
hired by the Respondent. The Respondent's answer admits that it
refused and continues to refuse to employ the discriminatees, but
asserts that such refusal is lawful.
F. Interference, restraint, and coercion
We find, as did the Trial Examiner, that on March 20, 1948, Employ-
ment Manager Fleischmann asked Joseph Klein, who was applying to
him for employment, whether he had picketed during the strike, and
said, "If you were on the picket line, I can't promise you no job";
that on March 22, 1948, Bernard C. A. Maurer applied to Fleischmann
for a job and was told by the latter he would not be hired because of
his union activities and because he had picketed during the strike;
and that on March 26, 1948, Anthony Pietrowski, while being inter-
viewed by Fleischmann in connection with an application for employ-
ment, informed him that he had engaged in the strike against the
Respondent, whereupon Fleischmann remarked, "Sorry, no job." The
TEXTILE MACHINE WORKS, INC. 1349
plain meaning of the foregoing interrogation , and comment by the
Respondent 's employment manager, was that these applicants were
being denied employment because of their past union and concerted
activities . The effect thereof was to coerce and restrain employees in
the free exercise of their rights guaranteed by Section 7 of the Act 1S
in violation of Section 8 (a) (1) of the Act.
G. Discrimination
As hereinbefore noted the complaint alleges the Respondent dis-
criminatorily refused to employ the discriminatees on and after March
20, 1948. The General Counsel contends that the Respondent 's failure
to employ them following their applications for employment , the first
application according to the proof having been made on February 7,
1948, constituted separate violations of Section 8 (a) (3) of the Act
independent of any discrimination with regard to their hire and tenure
of employment which may have occurred before then. Evidence of
events which took place at an earlier time is relied upon only to explain
and interpret the events which happened later.
The Respondent, on the other hand, argues that the General Coun-
sel has failed to prove by It preponderance of the evidence that the
refusals to employ on and after March 20, 1948 , were discriminatory.
Further, the Respondent argues, if ttiere had been any discrimination
at all , it occurred on September 6 or October 15, 1947, when the em-
ployment of the discriminatees was terminated . Had they desired to
remedy such possibly wrongful action they were obliged under Sec-
tion 10 (b) to file charges within 6 months from these dates, and, hav-
ing failed to do so, their right of action thereby became extinguished
and the remedy under the Act was no longer available to them. This
proceeding , the Respondent 's argument continues , is merely an effort
to revive a dead claim and to circumvent the Act by indirectly seek-
ing a remedy which has legally ceased to exist. Consonant with this
hypothesis , the Respondent contends that no evidence relating to
events occurring before March 8, 1948 , is admissible in this proceed-
ing, for a consideration of such evidence would necessarily result
in the litigation of unfair labor practices against which the 10 (b)
period has already run. ,
The Board has many times considered the effect of Section 10 (b)
upon the admissibility of evidence concerning events occurring more
than 6 months before the filing of a charge alleging unlawful conduct,
and has uniformly held that such evidence, if competent and of pro-
bative value, is not precluded from consideration by Section 10 (b)
and may be admitted to clarify and impart meaning to the specific
's S. B Wh istler & Sons, Inc, 92 NLRB 1 ; J IV. Woodruff, Sr., d/b/a Atlanta Broadcast.
Ong Company , 90 NLRB 808.
974176-52-vol 96-86
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct alleged as an unfair labor practice 19 The Board's position
in this respect recently was sustained in N. L. R. B. v. Clausen, et al.,
188 F. 2d 439 (C. A. 3), enforcing Frederica Clausen, d/b/a Luzern
Hide and Tallow Company, supra. In its opinion the court con-
firmed the Board's view that Section 10 (b) enacts a statute of limi-
tations and not a rule of evidence, and that "it [Section 10 (b) ] does
not foreclose the Board from accepting evidence of these events [i. e.,
events occurring more than 6 months before the filing of the charge]
for the purpose of throwing light upon acts which happened within
the 6-month period."
During the hearing in this case the Board entertained an interim
appeal from the rulings of the Trial Examiner excluding certain
evidence offered by the General Counsel .211 In its order reversing the
Trial Examiner's rulings, the Board, consistent with the well-settled
principle enunciated above, held that evidence of union or concerted
activity by the discriminatees, and of the Respondent's knowledge of
such activity, as well as proof of circumstances incident to the dis-
charge of the discriminatees was relevant and admissable, although
this evidence related to events occurring more than 6 months before
the filing of the charge. The Board's order further stated that its
ruling was limited to the admissibility of such evidence subject to
review on the record as a whole if raised for its consideration upon
the filing of exceptions. Having reviewed all the evidence in this
perspective, and having considered the Respondent's objections and
exceptions to the Board's procedure,21 its ruling, and the evidence ad-
mitted by the Trial Examiner pursuant thereto, we -reaffirm the
1° Pennwoven, Inc, supra ; Childs Company, supra; El Mundo, Inc., 92 NLRB 724,
Frederica Clausen, d /b/a Luzerne Hide and Tallow Company, 89 NLRB 989; Sun Oil Com-
pany, 89 NLRB 833; Florida Telephone Corporation, 88 NLRB 1429 ; Crowley's Milk
Company, Inc., 88 NLRB 1049 ; Aceelson Manufacturing Company , 88 NLRB 761.
20 The Trial Examiner in his Intermediate Report asserts that the General Counsel's
telegraphic petition to appeal to the Board detailing the circumstances constituting the
basis of the appeal from the Trial Examiner 's rulings did not fully or accurately state the
facts The Respondent acknowledged that it was served with a copy of the petition. No
objection was raised by the Respondent before or after the appeal was considered by the
Board with respect to the presentation of facts in the petition . We have carefully reviewed
the petition and the record and find, contrary to the Trial Examiner's asseition , that the
petition sufficiently and accurately presented the salient facts.
n The General. Counsel's appeal from the Trial Examiner ' s rulings was taken pursuant to
Section 203 26 (now Section 102 26 ) of the Board 's Rules and Regulations . While the
appeal was pending, the Respondent requested permission to argue orally and to submit
a brief This request was denied by the Board in its order reversing the Trial Examiner,
stating that the record of the proceedings to date which it had reviewed adequately pre-
sented the issues for its determination . The Respondent contends that the denial of its
request violated the fifth amendment. This contention is without merit. Federal Com-
munications , V. WJR, 337 U. S. 265 The due process provision of the fifth amendment
guarantees no particular form of procedure , it protects substantial rights. N. L . R. B. v.
Mackay Co., 304 U S. 333 (351). As the Respondent ' s position and argument in support
of that position weie set out at great length in the record reviewed by the Board, no
prejudice to its substantial rights resulted from the Board ' s denial of its request to be
heard on the appeal
TEXTILE, MACHINE WORKS,- INC. 1351
Board 's ruling and are satisfied that the evidence in question was
properly admitted to provide background and to throw light upon
the acts alleged herein as unfair labor practices.
We perceive no merit in the argument that the complaint in this
case seeks to revive a dead claim based on the terminations of employ-
ment in September and October 1947 against which the 10 (b) period
had run. The fallacy of this contention is apparent on the face of
the complaint , for nowhere therein is it alleged that these terminations
are statutory violations for which a remedy is sought . The gravamen
of the complaint is clearly denoted as the unlawful refusal by the
Respondent to employ the discriminatees following their applications
for employment in 1948 and thereafter . The discriminatory conduct
thereby alleged constitutes a separate and independent violation of
the Act distinct from any unlawful conduct which may have been
implicit in the earlier terminations of employment . Thus, the view
advanced by the Respondent that the discriminatees are now barred
from the relief presently sought because the right to remedy the Re-
spondent's past violations was permitted to lapse by their failure to
file a timely charge is without logical support. The Act imposes upon
the Respondent a continuing duty to refrain from discriminating with
regard to the hire of employees , and this obligation to the discrimi-
natees was not lessened or removed by their failure to remedy a past
violation . Were we to permit the Respondent 's approach to prevail,
we would thereby license the Respondent permanently to continue
blacklisting the discriminatees with impunity . Neither the Act nor
its legislative history sanctions such a result.
The Respondent further contends that the complaint should be
dismissed to prevent abuse of the Board's processes , because this pro-
ceeding was initiated in bad faith to harass the Respondent. In sup-
port of this contention the Respondent submits that most of the dis-
criminatees were profitably employed elsewhere when they applied to
the Respondent for jobs, implying thereby that they could have
gained no advantage from employment with the Respondent and must
therefore have been motivated by an ulterior purpose in applying for
such employment . The additional fact that they applied at the urging
of the Union whose attorney assisted them in preparing for this pro-
ceeding, the Respondent reasons, uncloaks the true motivation of the
parties to a plot termed by the Respondent as a "conspiracy of harass-
ment."
We disagree that the discriminatees could not have benefited by
obtaining jobs from the Respondent , as many of them testified they
had applied for employment for such reasons as the proximity of the
Respondent 's plant to their homes, more favorable working conditions,
1352 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
and the steadier employment prevailing at the Respondent's plant.
Moreover, any encouragement and assistance extended by the Union
in furtherance of the efforts by the discriminatees to overcome the
Respondent's alleged discriminatory refusal to employ them was a
legitimate fulfillment of its fundamental obligation to its members
and the persons it represented to secure and preserve their rights
guaranteed by the Act. Accordingly, we are satisfied that this pro-
ceeding reflects the genuine concern of the parties with the Respond-
ent's alleged discriminatory conduct, and does not constitute an idle
invocation of the Board's processes for the purpose of inconveniencing
the Respondent. The Respondent's contention therefore lacks merit.
We turn to a consideration of whether the proof supports the
allegation of the complaint that on and after March 20, 1948, the
Respondent discriminatorily refused to employ the discriminatees.
Under the theory of this case it was incumbent upon the General
Counsel to establish the following elements of the alleged violation:
(a) That on and after March 20, 1948, the Respondent had job
openings which the discriminatees were qualified to fill; (b) that
normally, absent a discriminatory policy, the Respondent would have
considered the discriminatees for employment upon the filing of their
applications; and (c) the discriminatees were rejected or denied con-
sideration for employment because of their union and concerted activi-
ties, rather than on the basis of some permissible criterion.
As to elements (a) and (b), our subsidiary findings herein conclu-
sively show that at various times after March 20, 1948, the Respondent
had one or more job openings for which each discriminatee was quali-
fied. These findings also show that the discriminatees had filed appli-
cations in permanent form which effectively put the Respondent on
continuing notice that they desired and were available for employ-
ment. Our findings further reveal that the discriminatees were all
experienced in one or more jobs in the Respondent's plant, and collec-
tively represented a body of skills and training of which an employer
in need thereof, under accepted industrial hiring practices, would
readily avail itself. The undisputed fact, as exemplified by the Re-
spondent's answer, is that the Respondent nevertheless refused and
continues to refuse to employ the discriminatees. We proceed, there-
fore, to (c), the final element, to determine the reason for the Respond-
ent's refusal to employ the discriminatees'22 and whether that reason
is unlawfully discriminatory.
In explanation of its refusal to employ the discriminatees the Re-
spondent asserts that their employment was terminated pursuant to
a company policy which rendered them ineligible for reemployment.
22 In the ensuing discussion all the discriminatees , except Gassert , will be treated cate-
gorically. Gassert's case will be discussed separately.
TEXTILE MACHINE WORKS, INC. 1353
According to this alleged policy, which Fleischmann testified had
existed for the last 20 to 30 years, employees upon separation are
classified in one of the following five categories :
A-discharged for cause; not to be rehired.
B-laid off; may be considered for rehiring.
C-laid off; not to be considered for rehiring.
D-voluntarily. quit; may be considered for rehiring.
E-voluntarily quit; not to be rehired.
The individual personnel records of the discriminatees introduced
in evidence reveal that each is coded A, C, or E, so as to indicate the
ineligibility of all the discriminatees for reemployment. These rec-
.ords also contain a reason for leaving, and final numerical perform-
ance ratings for conduct, production, and ability. Each of these fac-
tors is separately graded. A grade of 1 denotes excellent, 2 is good,
3 is fair, and 4 is poor. An average rating between 2 and 3 is consid-
ered "good" by the Respondent.
The following tabulation summarizes the relevant termination en-
tries on the personnel records of the discriminatees.
MACHINE SHOP EMPLOYEES
Number of records Terminationcode letter Reason for leaving
37------------------------------- A Unqualified
8 ----------------------------- A Services no longer required.
1 (Oassert)______________________ A Insubordination.
3------------------------------- E Another position
1-------------------------------- E Did not report for work when called.
FOUNDRY EMPLOYEES
33------------------------------- C Lack of work.
1-------------------------------- A Services no longer required
1-------------------------------- E' Another position.
With respect to the final performance ratings of the discriminatees,
their personnel records disclose that only 45 had ever been rated in the
past. Of these, 37 were down graded upon termination, 2 received
the same average grades as on their last previous ratings, and 5 re-
ceived higher ratings. One received no final rating. Of the group of
85, 18 received final ratings which averaged between 2 and 3, equaling
the standard which the Respondent considers to be "good."
Fleischmann described the procedure under which the foregoing
policy operates in the following manner. At the time of an em-
ployee's separation his foreman transmits information to the employ-
ment office, first verbally and then in writing, on a special report
form. On this form appears a final performance rating, a reason for
leaving, and a recommendation concerning eligibility for future em-
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment. This recommendation governs the reemployability of the
employee irrespective of his final or past performance ratings. When
this report is received by a clerk in the employment office he transfers
the information to the employee's personnel card and enters an appro-
priate code letter indicating eligibility for reemployment.
Fleischmann also testified that the Respondent's policy precludes
the rehiring of all persons who have been discharged, except those
discharged for lack of work, regardless of the reason for discharge,
but he was contradicted in this respect by Superintendents Kaul and
Good. Kaul testified that only those discharges for reasons such as
stealing, fighting, and continued loss of production preclude rehiring.
Lack of work is not a ground for discharge, but only for layoff.
Eligibility for reemployment of employees laid off for this reason
depends upon whether they have good records, that is, whether they
have been punctual and good producers. Good confirmed Kaul's
testimony by indicating that ineligibility for reemployment results
in cases of discharge for cause which he defined as "stealing, fight-
ing, refusal to follow orders, and so on." We give controlling weight
to Kaul's and Good's version of the Respondent's policy, as Fleisch-
mann disclosed that these superintendents were his immediate super-
visors and that they had related this policy to him on several occasions.
Thus, the record establishes, first, that the Respondent's termi-
nation policy does not automatically bar reemployment of all persons
discharged or laid off, and second, the disqualification for reemploy-
ment operates only against those who have been discharged or laid off
for misconduct, violation of working rules, incompetence, or poor
productivity. With this delineation of the Respondent's policy, we
have carefully searched the record for evidence which might indicate
that any of the foregoing factors was involved in the September and
October 1947 terminations of the discriminatees and find a total ab-
sence of such evidence. Furthermore, we are satisfied that none of
these discriminatees was terminated for any of these reasons. Many
of them testified without refutation that their work had never been
criticized, and the Respondent stipulated that all of them would, if
questioned, have so testified. Our conclusion that they had all been
competent employees is reinforced by Fleischmann's testimony that
had any been incompetent this would have been noted on their records.
No such notation appears on any record.
We attribute no significance to the final performance ratings as a
factor relating to the terminations, for, as we have already observed,
Fleischmann testified that the foreman's recommendation as to rehir-
ing is exclusively controlling. Moreover, in view of the testimony of
Kaul and Good that discharged or laid-off employees with good records
are eligible for reemployment, there appears to be no logical connec-
tion between the ratings of numerous discriminatees and their termina-
TEXTILE MACHINE WORKS, INC. 1355
tions with disqualification for reemployment. Despite the inexpli-
cable down grading of many of the ratings, an appreciable number
nevertheless equaled the Respondent's standard for acceptable per-
formance. Thus, if the ratings had been influential, those discrimi-
natees with "good" ratings should not have been terminated under
conditions barring reemployment. Certainly, their ratings should
dispel any question as to whether they were terminated for cause.
Further doubt as to the meaning and reliability of the ratings is
derived from the testimony of Maul that he does not know whether
periodic or final ratings are sent to the employment office, and of Good
that he did not believe that the Respondent had a regular or customary
procedure for rating employees before the -strike, and that employees
are terminated without regard to their ratings.
As to misconduct or violations of plant rules, we note that the Re-
spondent has recorded on the personnel records of several discrimi-
natees instances of warnings and reprimands for minor infractions,
and other information including the fact that they had testified for the
CIO in representation proceedings. However, no such entry appears
on any record which is relevant to the terminations. We infer that
had the discriminatees committed acts of misconduct or violated plant
rules which could be related to their terminations, appropriate nota-
tions would appear on their records, and that the absence of such
notations is proof that such acts were not committed.
During examination of the officials most responsible for the interpre-
tation and application of the Respondent's termination policy, the'
General Counsel sought to elicit from them information which would
have revealed the existence or nonexistence of valid reasons under
that policy for the termination and disqualification of the discrim-
inatees for reemployment. Among the discriminatees are 37 who
were classified "A" with "unqualified" given as the reason for leaving.
When asked by the General Counsel for the meaning of this term,
Fleischmann, on the advice of the Respondent's counsel, in disregard
of the Trial Examiner's ruling and direction to answer, refused to
answer. It was only after the General Counsel obtained an order
from the United States District Court for the Eastern District of
Pennsylvania ordering him to answer, that Fleischmann undertook to
do so. He thereupon testified that "unqualified" meant "not qualified
for future employment." Through other questioning of this witness
by the General Counsel it was developed that the term did not mean
incompetent.
Superintendent Good, after testifying that former employees dis-
charged for cause may not be reemployed, was asked by the General
Counsel whether any of the discriminatees had actually been dis-
charged for cause. On the advice of Respondent's counsel and against
the ruling and direction of the Trial Examiner, the witness refused
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to answer. Likewise, Good refused to answer the General Counsel's
question as to why none of the discriminatees who had formerly
worked under him in the foundry had been reemployed.
Kline, the assistant machine shop superintendent in charge of labor
relations, was questioned by the General Counsel as to the basis for
the terminations occurring after the strike, but refused to answer
on the advice of Respondent's counsel although directed to do so by
the Trial Examiner. Questioned again as to whether any of these
terminations were for economic reasons, Kline once more refused to
answer on the advice of counsel in defiance of the Trial Examiner's
direction.
We attach particular significance to these refusals to testify. The
information sought from these witnesses was peculiarly within their
knowledge, for by their own testimony the 1947 terminations were
preceded by high level meetings of machine shop and foundry super-
visors and management officials during which the decision was made
to terminate the strikers who had not been recalled. Moreover, be-
cause of their official duties and responsibilities, they were unquestion-
ably conversant with the facts sought from them. These facts were
vitally related to the defense interposed by the Respondent, namely
that its refusal to employ the discriminatees after March 8, 1948,
was in furtherance of a nondiscriminatory reemployment policy.
Their refusal to disclose such facts in their possession, which go to
the very heart of the Respondent's defense, convinces us that these
facts were deliberately withheld by the Respondent because their
production at the hearing would have been detrimental to its interest.
We conclude from all the evidence, that in terminating the dis-
criminatees in September and October 1947, the Respondent did not
apply objective criteria established by it under any preexisting termi-
nation policy. On the other hand, we find that the terminations were
administered in an arbitrary manner without regard to such company
policy as appears to have existed, and that under such policy, no
reason existed which compelled the disqualification of the discrim-
inatees for reemployment 23 The Respondent having nevertheless
raised its alleged policy to bar their reemployment, we find that the
motivation for this action was the desire to exclude the discrim-
23 The Respondent contends that because the discriminatees failed to file charges within
6 months from the date of their discharges it must be presumed that the discharges were
valid , and hence for cause . Granting that a remedy was no longer available under the Act
based upon a claim of unlawful discharges because of the failure to file timely charges, it
does not follow that the reasons for the discharges were thereby changed. Reasons for
discharge , which do not exist when they are effected, do not spring into being because the
discharged employees permit their remedy to lapse.
TEXTILE MACHINE WORKS, INC. 1357
inatees from its employ because of their past union and concerted
activities. In so finding we rely upon the evidence revealing the
Respondent's knowledge of their strike activities when they applied
for employment, the unlawful interrogation and comment by Fleisch-
mann in March 1948 to certain discriminatees who applied for em-
ployment manifesting the Respondent's hostility toward them for
their past union and concerted activities, the Respondent's refusal
to employ the discriminatees despite their continued application for
work and the existence of abundant jobs for which they were quali-
fied, the absence of any valid reason under the Respondent's alleged
termination policy which precluded their employment, and the spu-
rious explanation offered by the Respondent for its refusal to employ
them.
We are satisfied that the foregoing facts and circumstances suffi-
ciently expose the Respondent's motivation for its refusal to employ
the discriminatees. The true reasons for this conduct become even
more evident when viewed against the background of events which
occurred before March 8, 1948 24 The gathering of information dur-
ing the strike as to the identity of the pickets, the statements of Flei-
schmann and Rentz revealing the Respondent's unwillingness to recall
or reinstate the discriminatees during and after the strike because of
their strike activities, the unexplained precipitate termination of
the discriminatees despite their written expression of their desire to
return to work, and their termination at a time when the Respondent
was hiring new employees to fill jobs for which many of the discrim-
inatees were qualified, convinces us that the Respondent had, before
March 8, 1948, established a policy aimed at excluding the discrimi-
natees from its plant because of their past union and concerted activi-
ties. The Respondent's refusal to employ the discriminatees, as al-
leged in the complaint, was, in our opinion, the unlawful application
of this policy.
In reaching this conclusion with respect to all the discriminatees we
overrule the Trial Examiner's dismissal of the complaint as to Arthur
J. Bordner and Earl G. Detweiler. In dismissing the complaint as
to them, the Trial Examiner indicated that Bordner had applied to
the Respondent for employment on March 7, 1948, and Detweiler had
applied on February 7, 1948. Each application thus was submitted
before March 8, 1948, the cut-off date for the 6-month limitation period
"Our consideration of such evidence is not to be taken as a finding that the Resppndent
committed an unfair labor practice before March 8, 1948; in evaluating this evidence we
are merely endeavoring to clarify and impart meaning to events which occurred after
March 8, 1948.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preceding the filing of the first charge 25 The Trial Examiner was
apparently influenced by the mistaken view that the discrimination
against Bordner and Detweiler had occurred when they had applied
for employment, and that by failing to file charges within 6 months
thereafter their remedies were extinguished by Section 10 (b) of the
Act. What the Trial Examiner overlooked is that the discrimination
occurred when jobs became available for which the discriminatees were
qualified and which the Respondent refused to offer to them for dis-
criminatory reasons.
As noted above, suitable job vacancies were available between May
10 and September 20, 1948, for which Bordner was qualified, and
vacancies which Detweiler was qualified to fill occurred on September
27 and November 1, 1948. The acts of discrimination against them
thus occurred on the dates when the Respondent filled the foregoing
vacancies without first considering Bordner and Detweiler for em-
ployment. Because these discriminatory acts were committed after
March 8, 1948, the charge on which the complaint is based was timely
with respect to them. The Trial Examiner should have so found.
We find that by refusing to employ the discriminatees after March 8,
1948, the Respondent violated Section 8 (a) (3) and 8 (a) (1) of the
Act 26
0 The Trial Examiner concluded that the 6 -month limitation period of Section 10 (b) of
the Act began to run with respect to all the allegations of discrimination in the complaint
on March 8 , 1 948, 6 months before the filing date of the first charge . We concur in this
conclusion for, under the rule enunciated in Cathey Lumber Company , 86 NLRB 157, enf.
185 F 2d 1021 (C A 5) (Board 's order recently set aside for other reasons ), the com-
plaint may properly enlarge upon the charge on which it is based by the inclusion of the
names of persons discriminated against who were not listed in the charge, and this may
be accomplished without amending the charge . As the complaint in this case could have
issued without regard to the second and third charges, filed July 2, 1949 , and January 12,
1950, respectively , these latter charges were mere surplusage and of value only in that
they served notice of charges of discrimination in addition to those specified in the first
charge. Thus , although Bordner's name appears only on the charge filed January 12,
1950, the complaint was issued as to him based on the allegations of the first charge of
September 8, 1948. Similarly, the complaint as to other discriminatees who, like Bordner,
are named only on the January 12 , 1950, charge , is regarded as having been based on the
September 8, 1948, charge . The fact that the discriminatory conduct against several of
these discriminatees thus occurred after the filing date of the charge does not, as the
Respondent contends , impair the validity of the charge or the complaint on which it is
based. Once the Board's jurisdiction is properly invoked by the timely filing and service
of a charge , any unfair labor practice thereafter committed by a respondent and uncovered
while the charge is being investigated becomes cognizable by the Board and may be
included in the complaint . See Ferro Stamping and Manufacturing Co., 93 NLRB 1459.
20 As urged by the Respondent , we have duly considered its contention that evidence indi-
cating lack of union hostility be regarded as a factor against a finding of discrimination.
We do not agree , however, that such evidence is totally lacking in this case for the unlaw-
ful 8 ( a) (1) comment by Fleischmann to Bernard C. A. Maurer , adverted to herein,
reflects such hostility . In any event , we are satisfied that the Respondent , by refusing to
employ the discriminatees as shown above, has encroached upon their statutorily pro-
tected rights . It is immaterial to a finding that the law was thereby violated that the
Respondent's conduct may not have been motivated by union hostility . Nashville Corpora-
tion and Avco Manufacturing Corporation , 94 NLRB 1298; Cyril de Cordova & Bro., 91
NLRB 1121 ; Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793, 797; N. L. R. B. v.
Gluek Brewing Co., 144 F. 2d 847, 854 ( C. A. 8).
Consideration has also been given to the Respondent's contention that the recall to work
after the strike of many former strikers disproves the existence of a discriminatory motive
TEXTILE MACHINE WORKS, INC. 1359
As to Paul H. Gassert whose discharge on August 4, 1947, was
-incidental to the work stoppage on August 1 by the employees of
department 53, the evidence discloses that he picketed throughout
the strike. When the strikers capitulated on September 3 he applied
.at the employment office for his job although, unlike the other discrim-
inatees, he did not then sign the register. On March 24, 1948, he
visited the Respondent's employment office and requested employment.
This time he signed the register. Although the Respondent thereafter
-filled several jobs for which Gassert was qualified, it has steadfastly
refused to employ him. The Respondent's explanation for such re-
fusal is the same as that raised in connection with the refusal to
employ the other discriminatees, namely, that Gassert was discharged
under conditions rendering him ineligible for reemployment according
to the above-described company plan.
Gassert's personnel record shows that upon termination he had been
classified "A" with "insubordination" designated as the reason for
leaving. As a matter of first impression it would appear that Gas-
sert's case is distinguishable from those of the other discriminatees,
none of whom, as we have indicated, was terminated for a reason
which compelled disqualification for reemployment. Insubordination
is a common ground for a discharge for cause, and, according to the
Respondent's termination policy, precludes reemployment. We are
satisfied, however, that Gassert was not discharged for a cause within
the common meaning of that term and as it was contemplated by the
Respondent's policy.
The work stoppage on August 1, 1947, was prearranged by the
employees of department 53 who sought by this action to register a
grievance protest with the Respondent. At 1: 15 p. m. the employees
shut down their machines and congregated on the fifth floor of the
plant building. When ordered by their foreman to resume work they
refused, informing him that they were not striking but were merely
staging a protest which they wished to bring to the attention of some-
one with authority. The foreman thereupon communicated with his
superiors and called Gassert to the telephone. Gassert was instructed
by his communicant to get the employees back to work but was unable
to do so. Two other telephone conversations ensued between Gassert
for the refusal to employ the discriminatees . We have weighed this circumstance along
with all the other factors in this case, and are nevertheless convinced that the evidence
preponderates in favor of the conclusion we have reached. The Act forbids an employer
from discriminating against any of his employees , and he is not excused from the conse-
quences of his conduct merely by showing he knowingly refrained from discriminating
against others. Pennwoven, Inc, supra ; The Toledo Desk and Future Company, 65 NLRB
1086; Stewart-Warner Corporation , 55 NLRB 593, 610. The Respondent' s contention that
the complaint should be dismissed as to all persons , other than Gassert , named in the charge
filed September 8, 1948, on the ground that Gassert lacked authority to sign and file the
charge on their behalf is without merit. No showing of authority to make the charge is
necessary . The Standard Lime and Stone Company, 95 NLRB 628; Wilson f Company,
Inc., 31 NLRB 440, enf. 126 F. 2d 114 ( C. A. 7), certiorari denied, 316 U. S. 699.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a person in either the employment office or in Superintendent
Kaul's office. On one occasion an ultimatum was served on Gassert
to get the employees back to work and to report to the employment or
superintendent's office to discuss the situation within 10 minutes or be
discharged. On another occasion he was ordered to report to Super-
intendent Kaul on the second floor. These directives were relayed by
Gassert to the employees who refused to return to work and forbade
him to go alone to the superintendent, but expressed their willingness
to send a union committee to confer with Kaul. This offer was turned
down by Kaul who insisted that Gassert report to him alone. Gassert,
heeding the dictates of his fellow employees, remained with them. At
about 4 p. in. the employees departed from the plant without having
resumed work. Gassert remained in the plant until quitting time, 5
p. in., and also left without having gone back to work. As noted
herein Gassert was thereafter discharged and the other employees
were laid off for several days.
The Respondent took the position at the hearing and in its brief that
the employees had engaged in a sit-down strike, and that Gassert's
refusal to comply with Superintendent Kaul's request to report to him
constituted insubordination which warranted his discharge with dis-
qualification for reemployment. We disagree with these views. Ac-
cording to all the relevant evidence the work stoppage was staged in
an orderly manner without any violence, threats of violence, or inter-
ference with the Respondent's use of its premises. As a means for
registering a grievance protest, the method chosen by the employees
was concerted activity protected by the Act, and Gassert's participa-
tion with his fellow employees was equally protected.
Nor could his refusal to report alone in behalf of the employees to
Superintendent Kaul when so ordered rightfully have been regarded
as insubordination beyond the protection of the Act. While Gassert
testified as to the existence of a temporary grievance procedure under
which the departmental stewards were to present grievances to super-
visory officials in the first step of that procedure, the record shows that
no formal contract had yet been signed or agreed upon by the Union
and the Respondent; nor is there anything in the record which amply
describes the terms, operation, or binding effect of the temporary
grievance procedure on the parties. We may reasonably conjecture
that under the procedure then existing Gassert's mandatory duties as
steward terminated when the head foreman, Vogel, was notified that
the protest was staged to bring employee demands to the attention of
someone with authority; and that the procedure did not contemplate
that in situations involving a general work stoppage the steward was
to proceed as if he were processing an individual employee grievance
in the usual manner. In effect, we have no evidence before us of an
agreement supporting the Respondent's view that Gassert was obli-
TEXTILE MACHINE WORKS, INC. 1361
gated in his capacity as a steward to discuss a work stoppage incident
to a collective grievance with Superintendent Kaul. Under these
circumstances, as said by the court in N.-L. R. B. v. Ross Gear Tool
Co., 158 F. 2d 607 (C. A. 7), "neither an employer nor a union has
any right, in the absence of an agreement relative thereto, to deter-
mine who shall represent the other for the consideration of griev-
ances." The employees had a right under the circumstances to desig-
nate the union committee as their representative to deal with the Re-
spondent on a matter relative to their collective demands.
Because they forbade Gassert to represent them by himself, the Re-
spondent had no right to order him to violate such instruction. Gas-
sert's refusal to follow this order was not, therefore, the sort of wilful
behavior typical of a discharge for cause such as a deliberate refusal
to follow the work instructions of a superior, or an obstinate refusal
to report to a superior 27 concerning a matter pertaining only to him-
self. His conduct clearly was not the kind envisaged by Superin-
tendents Kaul and Good in their delineation of conduct constituting
cause for discharge with disqualification for reemployment under
the Respondent's policy. We find, rather, that his discharge was not
occasioned for a reason which rendered him ineligible for reemploy-
ment under the Respondent's policy. In the absence of such
disqualification, we find, as in the case of the other discriminatees,
that the Respondent's refusal to employ Gassert subsequent to
March 24, 1948, the date of his application for employment, when
suitable job openings for which he was qualified were available, was
because of his past union and concerted activities and therefore in
violation of Section 8 (a) (3) and 8 (a) (1) 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 de-
scribed in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent discriminated in regard to
the hire of the 85 discriminatees named in the appendix attached
hereto. We shall, therefore, order the Respondent to offer each of
27 Cf. N. L. R. B. V. Rosa Gear d Tool Co., supra.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them immediate employment with such seniority or other rights anti
privileges as each would have enjoyed had each been employed on the
dates when, absent the Respondent's discrimination against them, the
Respondent would have employed them. We shall further order the
Respondent to make them whole for any loss of pay each may have
suffered as the result of the Respondent's discriminatory refusal to
hire them from the respective dates of discrimination against the
discriminatees to the dates when each is offered employment. The
date from which back pay shall run in favor of each discriminates
shall be determined upon compliance with this order, by fixing the
date on which each would have been employed by the Respondent
in accordance with nondiscriminatory hiring practices.
In accordance with our practice, the period from the date of the
Intermediate Report to the date of the Order herein will be excluded
in computing the amount of back pay to which Arthur J. Bordner
and Earl G. Detweiler are entitled, because of the Trial Examiner's
recommendation that the complaint be dismissed as to them.
Consistent with the Board's current policy of computing back pay,28
loss of pay shall be computed on the basis of each separate calendar
quarter or portion thereof during the period from the Respondent's
discriminatory action to the date of a proper offer of employment.
The quarterly periods, hereinafter called "quarters," shall begin with
the first day of January, April, July, and October. Loss of pay shall
be determined by deducting from a sum equal to that which these
employees would normally have earned for each quarter or portion
thereof, their net earnings'29 if any, in other employment during that
period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due.3°
The unfair labor practices committed by the Respondent, in our
opinion, disclose a fixed purpose to defeat the attempts by its em-
ployees at self-organization and its objectives. Because of the Re-
spondent's unlawful conduct and its underlying purpose, we are con-
vinced that the unfair labor practices found herein are potentially
related to other unfair labor practices proscribed by the Act and that
it danger of their commission in the future is to be anticipated from
21 F. W. Woolworth Co., 90 NLRB 289.
25 By "net earnings " is meant earnings less expenses such as for transportation, room,
and board incurred by an employee in connection with obtaining work and and working
elsewhere which would not have been incurred but for the unlawful discrimination and con-
sequent necessity of seeking employment elsewhere Crossett Lumber Company, 8 NLRB
440 Monies received for work performed upon Federal , State, county, municipal , or other
work-relief projects shall be considered as earnings Republic Steel Corporation v. N.. L.
R B, 311 U S 7.
30 F. W. Woolworth Co , supra
TEXTILE MACHINE WORKS, INC. 1363
the-Respondent's past conduct. The preventive purpose of the Act
will be thwarted unless our order is coextensive with the threat. In
order, therefore, to make effective the interdependent guarantees of
Section 7 and thus to effectuate the policies of the Act, we shall order
that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Steel Workers of America, C. I. 0., is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of the persons named in the Appendix, attached hereto, the
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. The Respondent has not engaged in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act in regard to the hire and
tenure of employment of George Gehring.
5. The Respondent has not interfered with or attempted to interfere
with the hire or tenure of employment by other employers of persons
named in the complaint because of their interest in, loyalty to, and
concerted activities in behalf of the Union in violation of Section 8
(a) (3) and 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the Natioial Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Textile Machine Works,
Inc., Wyomissing, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Steel Workers of Amer-
ica, C. I. 0., or in any other labor organization of its employees, by
discriminating in regard to hire of employees.
(b) Interrogating applicants for employment concerning their
union or protected concerted activities, and informing them that they
will be denied employment because of their union or protected con-
certed activities.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) 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 United Steel Workers of America,
C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any
other concerted activities for the purposes of collective bargaining or
other mutual aid or protection or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion 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 each of the persons named in the Appendix, attached
hereto, immediate employment with such seniority or other rights and
privileges as each would have enjoyed had each been employed on the
dates when, absent the Respondent's discrimination against them, the
Respondent would have employed them in accordance with its nondis-
criminatory hiring practices.
(b) Make whole the persons named in the Appendix, attached
hereto, in the manner set forth above in Section V entitled "The
Remedy," for any loss of pay each may have suffered as a result of
the Respondent's discrimination against him.
(c) Upon request, make available to the,Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right
of employment under the terms of this Order.
(d) Post at its plant in Wyomissing, Pennsylvania, copies of the
notice attached hereto and marked "Appendix." 31 Copies of said
notice, to be furnished by the Regional Director for the Fourth Region,
shall, after being duly signed by a representative of the Respondent,
be posted by it immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter in conspicuous 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 Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that it discriminated in regard to the
hire and tenure of employment of George Gehring, and interfered
' In the event this Order is enforced by a Decree of the 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."
974176-52-vol. 96-87
TEXTILE MACHINE WORKS, INC. 1365
with or attempted to interfere with the hire or tenure of employment
by other employers of persons named in the complaint.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITED STEEL WORKERS
OF AMERICA, C. I. 0., or any other labor organization of our em-
ployees, by discriminating in regard to hire of employees.
WE WILL NOT interrogate applicants for employment concern-
ing their union or protected concerted activities, and will not
inform them that they will be denied employment because of
their union or protected concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist UNITED
STEEL WORKERS OF AMERICA, C. I. 0., or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, to engage in 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 may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
suitable employment with such seniority or other rights and
privileges as each would have enjoyed but for the discrimination
against them, and make them whole for any loss of pay suffered
as a result of the discrimination :
Aulenbach, John Chlebowski, Conrad
Bauer, William G. Cieniewicz, Walter N.
Beck, Clayton Clay, George
Becker, Aaron Davis, Norman
Berg, George H. Davis, Robert L.
Bianca, Anthony Davis, Walter S.
Bleiler, Paul W. Distasio, Charles
Borden, George H. Dreher, Donald
Bordner, Arthur J. Edinger, Harold R.
Boyer, William C. Ernst, Harold S.
Brubaker, Pauline Avola Fisher, Paul C.
Burkhart, Herman O. Frees, Catherine M.
Carabott, Angelo Gassert, Paul H.
974176-52-vol. 96-87
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grimm, Joseph
Groff, Alpheus
Gruber, Thomas C.
Guistwite, Robert
Haring, Leroy
Hartranft, Russell J.
Heist, Robert M.
Hendricks, Albert O.
Herzog, George F.
Klein, Joseph
Koch, Harry S.
Kercher, Clarence
Delcamp, William N.
Dematt, Patsy
Detweiler, Earl G.
Majka, Philip
Marko, John
Marko, Joseph
Matz, Lester
Maurer, Bernard C. A.
Mayer, Ferdinand J.
Mengel, Mervin
Miller, Norman E.
Miller, William F.
Mull, Harry
O'Connell, James
Pennypacker, Paul W.
Pike, William H., Jr.
Pietrowski, Anthony
Polaha, Stephen W.
Quaintance, Stella
Race, Charles I.
Robinson, James P.
Roth, John A.
Rupp, Elmer E.
Savage , Stanley
Krouse , Harry M.
Leone, Samuel S.
Lutz, George A.
Scheipe, Leon W.
Schweitzer, Clayton
Shalter, Franklin
Sheehan, George M.
Slusser, Cletus R.
Smith, Harvey H.
Speicher, Cyrus W.
Steiner, Harry-M.
Stoyer, Marshall W.
Strausser, John A.
Swisher, Ralph W.
Terefenko, Peter M.
Tomeo, Angelo
Troutman, Ralph E.
Tsakeris , Stanley
Undheim, William D.
Valerio, William
Warczyglowa, Clarence F.
Weinrich, Walter W.
Youse, Earnest A.
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization, or to refrain
from such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employees because of membership in or activity on behalf of any
such labor organization.
Dated ---------------
TEXTILE MACHINE WORKS, INC.,
Employer.
By -----------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.