Textile Machine Works, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1953

105 N.L.R.B. 618 (N.L.R.B. 1953)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the
exercise of their right to self -organization , to form labor organizations , to join Local
#79, International Brotherhood of Boilermakers , Iron Ship Builders and Helpers of
America , AFL, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any and all such
activities , except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition or employment as authorized in Section
8(a) (3) of the Act
WE WILL bargain collectively upon request with the above-named labor organization
as the exclusive representative of all employees in the bargaining unit described herein
with respect to rates of pay, hours of employment, or other conditions of employment,
and if an understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees at our plant, including the shipping clerk,
inventory clerk , and so-called seasonal employees , but excluding the office clerical
employees , professional employees , watchmen , guards , and supervisors as defined in
the Act.
All our employees are free to become, remain , or refrain from becoming members of the
above-named union , or any other labor organization , except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3) of the Act.
BAR-BROOK MANUFACTURING COMPANY, INC.,
Employer.
Dated .............. By ...............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
TEXTILE MACHINE WORKS, INC. and PAUL J. GASSERT,
ET AL.
TEXTILE MACHINE WORKS, INC. and WILLIAM G. BAUER
TEXTILE MACHINE WORKS, INC. and UNITED STEELWORK-
ERS OF AMERICA C.I.O. Cases Nos. 4-CA-118, 4-CA-277,
and 4-CA-343. June 17, 1953
SUPPLEMENTAL DECISION AND ORDER
On November 5, 1951 , the Board issued its Decision and
Order in the above - entitled proceeding ,' finding that the Re-
spondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist
therefrom , and take certain affirmative action. Among the
unfair labor practices found to have been committed by the
Respondent was its discriminatory refusal to employ 85 former
employees , herein called discriminatees , in violation of Sec-
tion 8 ( a) (3) of the Act. As a defense to the allegations of the
complaint that the refusal to employ the discriminatees violated
196 NLRB 1333.
105 NLRB No 77.
TEXTILE MACHINE WORKS, INC. 619
Section 8 (a) (3) of the Act, the Respondent contended that the
discriminatees had not applied for and were not denied em-
ployment, but that they had applied for reinstatement as this
term is technically used by the Board in its remedial orders.
In substance, the Respondent asserted that if, arguendo, it had
in the past unlawfully discharged the discriminatees, they had
permitted their rights to reinstatement under the Act to
lapse by failing to file charges based upon their discharges
within the 6-month period specified in Section 10 (b) of the
Act; that when the discriminatees subsequently presented
themselves to the Respondent, they actually sought reinstate-
ment, not employment as new employees, which reinstatement
the Respondent was privileged to refuse to accord them.
Contrary to the Respondent's view, the Board found that the
discriminatees had not sought reinstatement as that term is
technically understood, but that they had in fact applied for
employment which they were unlawfully denied. In so finding,
the Board cited its decisions in Pennwoven, Inc., 94 NLRB
175, and Childs Company, 93 NLRB 281. Subsequent to the
issuance of the Board's Decision and Order herein, the United
States Courts of Appeals for the Third and Second Circuits,
respectively, denied enforcement in the Pennwoven and Childs
cases (194 F. 2d 521 and 195 F. 2d 617, respectively) of that
part of the Board's order in each case based upon findings of
violation of Section 8 (a) (3) of the Act. In view of the Board's
citation of its decisions in these cases in the instant case,
the Board, on November 28, 1952, issued a notice to the parties
to show cause why the Board should not reexamine and re-
consider its findings of fact and conclusions of law in its
Decision and Order in the light of the Pennwoven and Childs
court decisions. In response to this notice, the Respondent,
the General Counsel, and the United Steelworkers of America,
CIO, one of the charging parties, signified their approval of
appropriate reexamination and reconsideration of the Board's
Decision and Order.
Having carefully reexamined and reconsidered the entire
record in this case, especially in the light of the Pennwoven
and Childs court decisions, we are satisfied that the Board
correctly found and concluded that all the discriminatees in
this proceeding, with one exception noted hereinafter, had
applied to the Respondent for new employment and not for
reinstatement with restoration to former rights, and that the
Respondent's discriminatory refusal to employ them pursuant
to such applications for employment was in violation of Section
8 (a) (3) and (1) of the Act. We have reached this conclusion
for the reasons set out below.
Neither the Pennwoven nor the Childs court decision dis-
turbed the legal principle upon which the Board's 8 (a) (3)
findings in those cases , as well as in the instant case, funda-
mentally rest. That principle, affirmed by the Supreme Court
in Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, holds
that the refusal by an employer to grant employment because
of past union or strike activities is an unfair labor practice.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The crucial disagreement by the courts with the Board's
findings in Pennwoven and Childs was not in derogation of the
Phelps Dodge principle but turned solely on a construction
of the decisive facts in these cases. In brief, the Board had
found that certain former employees in each case had re-
quested jobs as new employees from their former employers,
and had been denied employment in one case because of their
past union activities, and in the other because of•nonmember-
ship in a union. The Board, applying the principle of Phelps
Dodge to the facts as it found them, held such denials of em-
ployment violative of Section 8 (a) (3) of the Act. The court,
in each case, however, construed the requests of the individuals,
not as applications for new employment, but as assertions
of reinstatement rights as this term is remedially used by the
Board. As the vindication of these reinstatement rights had
been barred by the 6-month limitation of Section 10 (b) of
the Act, no unfair labor practice could be found on the refusal
to reinstate. Concluding, therefore, that the Board's findings
of fact were not supported by the evidence, the court denied
enforcement of the Board's order in each case.
Similarly, the Board's determination of the question in the
instant case, whether the discriminatee s had sought new employ-
ment or reinstatement, depended on the particular fats of this
case, which are clearly distinguishable from the controlling
facts in Pennwoven and Childs.
In Pennwoven the requests consisted of letters from three
employees to their former employer. These letters were
alike except for the statement of employment records in each.
One of these letters was quoted at length in the court's decision
as follows:
My employment with Pennwoven, Inc., was severedon
June 30, 1948 by the company when the second shift was
temporarily eliminated. I was laid off without regard for
my seniority which was guaranteed to protect my job under
the then existing labor agreement between Pennwoven,
Inc., and Local No. 12318 of District 50--United Mine
Workers of America, which at that time was recognized
by Pennwoven, Inc., as the sole and exclusive bargaining
agency for all production and maintenance employees of
Pennwoven, Inc.
At the time of my lay-off on June 30, 1948, 1 was em-
ployed by Pennwoven, Inc., for 16 years and 3 months, and
should have been retained because employees with less
seniority were retained in your employ.
Since my lay-off on June 30, 1948 Pennwoven, Inc., has
hired new employees without offering me reinstatement to
my former job.
I have been available for re-employment at all times
since June 30, 1948 and am available at this time, but to
date have not received any offer from Pennwoven, Inc., of
re-employment.
TEXTILE MACHINE WORKS, INC. 621
I believe my separation from employment with Penn-
woven, Inc., and refusal of re-employment was and is due
solely to membership in and activities on behalf of the
American Federation of Labor, and my efforts to induce
my fellow employees to join the A. F. of L. and have the
A. F. of L. certified as bargaining agent for production
and maintenance employees of Pennwoven, Inc.
This action constitutes a violation of my rights as a
worker under the National Labor Relations Act as amended,
and also constitutes an unfair labor practice by Penn-
woven, Inc., under the Act.
Before seeking redress under the provisions of the
National Labor Relations Act I am herewith informing you
of my availability for re-employment and would appreciate
any early statement of my status as an employee of Penn-
woven, Inc.
In construing this letter, the court said merely,
We find it impossible to understand this letter as any-
thing but a demand for reinstatement to a former position
with all the benefits that such reinstatement could bring.
The Board calls the letter "an unconditional application for
employment". If that is a fact-finding we cannot accept it.
If it is comment or argument we are likewise compelled
to disagree. There is nothing we can say to support our
position which is any stronger argument for it than the
text of the letter itself.
Necessarily the court's construction of the foregoing letter
as a "demand for reinstatement to a former position with all
the benefits that such reinstatement could bring," was derived
from a reference to the letter as a whole. The court's result
must, therefore, have been obtained from the combined effect
of the following elements in the letter:
(a) The recital of facts regarding the employer's alleged
unlawful conduct (as to which more than the 6-month statutory
period provided in Section 10 (b) had run), with specific refer-
ence to the employer's failure to offer the aggrieved employee
"reinstatement to [her] former job."
(b) Emphasis upon the specific seniority, in terms of precise
years and months, earned by the employee in the employer's
service.
(c) The statement of the employee's "availability for re-
employment," coupled with a threat to seek redress under
the Act for the employer' s termination of her employment,
and a demand for "an early statement of [her] status as
an employee of Pennwoven, Inc."
The court undoubtedly concluded that the statement of "avail-
ability for re-employment" was so intertwined with reminders
of the employer's discriminatory conduct and refusal to offer
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement , the employee ' s seniority , the threat of redress
for failure to reemploy , and the demand for a statement of
status as an employee of the employer , as to mean only that
the employee still regarded herself entitled to rights avail-
able under the Act, and that the letter as a whole was a demand
for restoration of these rights with a threat of invocation of
the Act's processes for the employer's failure to accord them
to her.
In the Childs case there was a background of a discharge of
an employee by the employer on January 29, 1948, and a charge
filed with the Board in September 1948 alleging the discharge
to have been violative of Section 8 (a) (3) of the Act. On June 24,
1948, the aggrieved employee, Potter, had written the employer,
as the court found, complaining of the employer's conduct in
connection with the discharge. On July 8, 1948, the employer
replied advising Potter that his complaint was receiving con-
sideration. On October 23, 1948, Potter again wrote to the
employer (just after the filing of the charge in September)
reminding the employer of his June 24 letter voicing "com-
plaint against my loss of job with the company," and the
employer's failure to satisfactorily dispose of his complaint
as promised in its letter of July 8. He concluded this letter
by referring to his decision to take his complaint to the Board.
On October 28 the employer replied explaining the reason for
the termination of Potter's, employment, and informing him
that ''Under these circumstances the Company cannot restore
you to your former position." The next day Potter filed an
amended charge with the Board reiterating his original charge
filed in September and adding: "On October 23, 1948 1 wrote
to the Company and requested that The reinstated to my former
position. On October 28, 1948, 1 was informed by the Company
that pursuant to the terms of the existing labor contract, they
could not reinstate me to my former position." On April 10,
1949, Potter again sent a letter to the employer in which he
included the following remarks:
Please except this as another request to be reestab-
lished in the employment of the company with former rights.
As well as compensary losses I have so suffered as a
results. Which you perhaps are aware is claims I have
pending with the National Labor Relations Board. (Sic)
In disagreeing with the Board's conclusion that Potter's
October 23, 1948, letter was a request for new employment and
not a demand for reinstatement, Judge Augustus Hand, speaking
for the majority, said,
We cannot see any justification for the conclusion of the
Board that Potter was asking for new employment rather
than reinstatement to his former position and rights. His
letter of October 23, 1948 refers to two things: (1) his
letter of June 23 in which he complained generally of the
TEXTILE MACHINE WORKS, INC. 623
Company ' s failure to oppose the Union ' s request for his
discharge , and (2 ) the charge he had filed with the Board
in September, in which he complained only of the il-
legality of his discharge . How either reference can be
construed as a demand for new employment rather than
one for restoration of former rights is beyond our com-
prehension. In the amended charge filed October 29, 1948,
he himself said that the letter was a request for rein-
statement to his former position. The letter of April 10,
1949, ties in with all his former utterances and is to be
read as interpreting and reaffirming them. It conclusively
shows that he was at all times seeking reinstatement to his
former rights and not merely new employment.
It is thus evident that here, as in Pennwoven, the court's in-
terpretation of Potter ' s request as a demand for reinstate-
ment was formed by regarding the request in relation to
Potter ' s assertion of rights flowing from his alleged unlawful
discharge , and his invocation of Board action to secure those
rights. Especially significant , in this connection, is the
court's reliance on Potter's April 10, 1949, letter to explain
the intent of his October 23, 1948, request. Also particularly
noteworthy is Potter's demand in his April 1949 letter to be
restored to employment with "former rights " and compensation
for losses resulting from his discriminatory discharge .- These
are the elements customarily comprising a Board - ordered
reinstatement remedy.
In distinguishing the instant case from Pennwoven and
Childs, we emphasize at the outset the absence here of the
decisive elements delineated in our analyses of the foregoing
court decisions. Absent from the requests by the discrimi-
natees in this case , with the exception hereinafter noted, are
the Pennwoven or Childs assertions of past discrimination by
the respondent coupled with claims of rights flowingfrom
such alleged discrimination , or threats of Board action for the
failure of the respondent to accord these rights . We turn then
to the relevant facts in the record upon which the Board's
conclusion rests , that these requests evinced the desire of the
discriminatees for employment and not for reinstatement with
restoration of rights and pecuniary losses.
As detailed in the Board's Decision and Order, the dis-
criminatees were part of a group of striking employees who
on September 3, 1947, ended their strike against the Respond-
ent by signifying their desire to return to work . On that
occasion , pursuant to the Respondent's instructions, they
entered their names , addresses , and telephone numbers in a
register s maintained by the Respondent in its employment
2 According to the Respondent 's employment manager . this register is continuously main-
tained in the employment office to record the names and other information concerning
persons who daily visit the office applying for employment . The employment manager
testified that his usual practice is to refer to the register each day to satisfy the Respondent's
immediate personnel needs by securing employees from among the applicants whose entries
appear in the register.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office, and left tht premises to await recall to work. None of
the discriminatees was ever recalled. Instead, the Respondent
notified them by mail in September and October 1947 that they
had been discharged.' No charges were filed alleging that
these discharges were unlawful, and we do not find that they
were.
On March 21, 1949, a meeting was held by an official of the
United Steelworkers of America, CIO, which was attended by
some of the discriminatees. As a result of events which trans-
spired at this meeting ,4 most of the discriminatees visited
the Respondent's employment office and presented their re-
quests for employment. In general, the discriminatees were
informed that there was no work available for them at the time
but that they would be called when jobs became available. Al-
though, as revealed by the Board's analysis of the record,
jobs subsequently became available for which the discrim-
inatees were qualified, they were refused employment by the
Respondent. These refusals to employ are the basis for the
complaint in this case.
In contending that these requests constituted demands for
restoration to their former jobs and privileges and not just
applications for employment, the Respondent asserted that the
testimony of the discriminatees regarding their conversations
with the Respondent's employment officials and clerks reveals
that they were trying to recover "their old jobs back." This,
the Respondent argued, is equivalent toademandfor reinstate-
ment as that term is used by the Board in its remedial orders.
Apart from our disagreement with such reasoning, we find that
the Respondent's argument is not applicable to the requests
of 21 discriminatees which contain not even the slightest men-
tion of a desire for "old jobs," but clearly reflect the desire
of these discriminatees for any employment as new employees.
We are equally satisfied that the Respondent's argument is not
applicable to the requests of 16 other discriminatees who, in the
course of their conversations with the Respondent' s representa-
tives, directly or indirectly referred to an interest in their "old
jobs," but also made other statements which convincingly
showed that they wanted employment as new employees.
Because we have relied upon the interchange between each of
these 37 discriminatees and the Respondent's representatives
in reaching our conclusions, we set forth the credited testi-
mony of these discriminatees as to what was said in each
instance:
3One discriminatee, Paul H. Gassert, had been discharged on August 4, 1947, before the
strike, allegedly for insubordination. The circumstances relating to his discharge are
detailed in the Board's Decision and Order.
4As noted by the Board at footnote 13 in its Decision and Order, the Trial Examiner
had excluded testimony which the General Counsel sought to elicit as to the events of this
meeting, and rejected the General Counsel's offer of proof to the effect that the Steel-
workers' representative had informed his audience that the Respondent was hiring, and
had advised those desiring to obtain jobs with the Respondent to apply. Although the Board
was of the opinion that this evidence should have been admitted, it indicated that it did not
need to rely therein in reaching its ultimate conclusions, and did not, therefore, reverse
this ruling by the Trial Examiner.
TEXTILE MACHINE WORKS, INC. 625
Anthony Pietrowski spoke to the employment manager on
March 26, 1948, and "asked for a job." He was told that there
was no work and that he should come back. He returned about
a month later, but an employment clerk refused to let him see
the manager.
Joseph Marko asked an employment clerk on March 23, 1948,
"for a job." He was informed that "whatever happens to these
fellows (other discriminatees who had applied for work) will
happen to you."
George Herzog told the employment manager on March 22,
1948, that he had formerly worked in department 1 and asked
for his "job back." When apprised that there were no jobs
open , he inquired "wasn't there any jobs open in any other de-
partment." He was informed that men were not then needed.
Robert Guistwite told the employment manager on March 24,
1948, "I would like to have my job or any other job, anything
at all," and was advised there was nothing open at that time,
and if something did open he would be informed.
Stanley Savage said to an employment clerk on April 15,
1948, "I come over to see if there was any jobs open," and
was told only to sign the register. He also asked the employ-
ment manager "Is there anything open," but this inquiry
merely evoked the manager's laughter.
William H. Pike, Jr., asked an employment clerk in March
1948 "if there was any jobs open," and was told there were
none then but that he would be informed when there were
openings.
Walter S. Davis came to the employment office between
March 22 and 25, 1948, and asked a clerk for his "job back,"
and when that was refused requested a form "to make out an
application for employment." This request was denied and he
was informed that he would be notified if there were to be any
jobs open.
Catherine M. Frees said to an employment clerk on March
24, 1948, that she "came over for a job, it didn't make no
difference what kind of work it was." He told her he had
nothing then.
Harry S. Koch spoke to the employment manager in March
1948 and asked him "for a job." The manager replied that
there were no jobs open then but that he would keep him in
mind and let him know.
Stella Quaintance asked an employment clerk on March 24,
1948, for "a job" and was told he did not have anything. She
asked "if they were going to hire any more girls" and was
told by the clerk that he did not know.
Aaron Becker asked an employment clerk in the spring of
1948 "if they had any jobs open in the foundry" and was told
there were none.
Charles Di Stasio spoke to the employment manager on
March 22, 1948, and said, "I'd like to have my job back."
The manager replied, "Oh, you can't have your job back. You
got to start as a new man ." Di Stasio then said, "O.K., its
O.K. with me." He was told, "Well, there's no work in there
right now. You got to wait until you're sent for."
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russell J. Hartranft asked an employment clerk on April 1,
1948, " if he had any jobs open ." He was told there were no
openings and that he would be called when needed.
Herman O . Burkhart asked an employment clerk on August
26, 1948, " about getting [his] job back , or any other job."
He was told there was nothing open.
William Miller stated to an employment clerk on April 2,
1948, that he "wanted employment ." He was told that if the em-
ployment manager wanted him he would call him.
Alpheus Groff applied for "employment " on March 28, 1948,
and was told by an employment clerk he would be sent for when
needed.
Earl G . Detweiler had been at the employment office on Oc-
tober 22, 1947 , and had asked whether "there was anything
doing on [his ] job or anything else ." He was told there was
nothing for him . He continued calling at the employment office
weekly thereafter until February 7, 1948 . On this last occasion
he asked an employment clerk if he knew when the company
would send for him . The clerk told him he did not know.
James P . Robinson told an employment clerk on March 22,
1948, that he would like to get his old job back "or any other
job that ' s available ." The clerk consulted with the employment
manager and told Robinson that the manager had no time to
bother with him.
Norman Miller asked an employment clerk on March 26,
1948, " if anything was open" and was told there was nothing
open at the time.
Cletus R. Slusser asked an employment clerk on March 24,
1948 , " if there was anything doing ... is there anything open?"
He was told there was nothing open.
Clayton Schweitzer told an employment clerk in December
1949 or January 1950 that he had come "to seek my employ-
ment" in the foundry where he had formerly worked. The
clerk ascertained that he had worked for the company during
the 1947 strike and then informed Schweitzer that the em-
ployment manager was not present and could not be reached.
Lester Matz asked an employment clerk about the second
week in April 1948 , " if there was any jobs open" and was in-
formed there were no openings then.
Arthur Bordner asked an employment clerk on March 7,
1948, " if they were hiring anyone " and was informed that they
were not.
Clarence Warczyglowa went to the employment office on
March 22, 1948 . On that occasion several other former em-
ployees were present including Joseph Grimm who had been
president of the shop local before the strike . Grimm asked the
employment manager " about these fellows that are here, about
getting their jobs back ." The manager replied , "the only way
you would get your jobs back is to start as new employees."
Grimm then asked for applications , but the manager said he
had the old applications and that it would be sufficient for the
men just to register ; that "as the time comes we will call you."
TEXTILE MACHINE WORKS, INC. 627
Joseph O ' Connell asked an employment clerk in the spring
of 1948 " if there was any hiring , anything doing at present."
The answer was no.
Cyrus W. Speicher applied at the employment office in
March 1948 and was asked by an employment clerk "how come
I was back for my job," to which he replied , "Well, I'm out
of a permanent job at the present time , I was back quite often
for my job but I never got it ." He testified he had gone to the
employment office to ask for "my old job or another job; I
wasn 't too particular."
George Clay asked an employment clerk on March 23,
1948, " about coming back ," and was informed "we don't take
anybody back yet." He testified that on this occasion he "was
just looking or a job."
Charles I . Race asked an employment clerk on March 22,
1948, "for work." After he had been identified as a participant
in the 1947 strike against the Respondent , he was told there
was no work.
Leroy Haring asked an employment clerk in November 1947
"about my job back or any other job " but was told there was
nothing available . He again " inquired about work" in February,
April, and around Thanksgiving time or December 1948, and
was told each time that there was nothing for him.
Ferdinand J. Mayer asked an employment clerk on March 22,
1948, for "a job."
William G . Bauer asked the employment manager in the fall
of 1948 for his "job back ." He was told that due to transfers
of employees between departments he could not then be placed.
Bauer returned to the employment office about 50 times in 1949
and 1950 and asked the employment clerks "for work, any kind
of work."
John Marko spoke to the employment manager on March 29,
1948, and asked him "about my old job." The manager told
him he "couldn't get back to [ his) old job," and turned him
down for a job in the foundry for which Marko also applied on
the ground that he wasn't heavy enough for the job. Marko then
requested the manager to contact him "if there should be any-
thing open."
Conrad H. Chlebowski went to the employment office on
March 22, 1948, to apply for a job. He was informed that the
employment manager was not in and that he would be notified
"if anything was open."
Harry Mull went to the employment office on March 23,
1948 , to apply for a job. He was informed that the employment
manager was not in.
Robert Heist asked an employment clerk on March 20 or
22, 1948, "If I could have my job back" and "if there was any
work for me." He was informed that if there were any work
for him he would be notified.
John A. Roth asked an employment clerk on April 3, 1948,
to be "rehired."
Samuel S. Leone told an employment clerk on March 22,
1948, "I have come back to be reinstated on my job, if possi-
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ble, and if there was an opening over there to the foundry."
He was told he would be referred to the employment manager.
As to the remaining discriminatees, whose requests consisted
generally of inquiries about when they would get "their old
jobs back," the Board, in its Decision and Order; said,
We reject the Respondent's contention that these appli-
cations were not for employment, but for ",reinstatement"
as this term is technically 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 con-
ditions to their requests such as a demand for return to
a former position with back pay, seniority, and other
rights and privileges which the Board customarily speci-
fies in a remedial order requiring an employer to rein-
state employees. We are satisfied that the discriminatees,
who without exception are industrial factory workers, did
not use the terms they employed in the technical sense of
labor law experts, but merely expressed themselves inthe
ordinary manner of former employees seeking jobs , from
their old employer, and presented themselves as new
applicants seeking new employment.
We affirm this view with respect to all but one of the discrim-
inatees.5 The Respondent's contrary view that the requests for
"old jobs back" were equivalent to demands for reinstatement
might be more persuasive had there been associatedwith them
the elements appearing in the Pennwoven and Childs requests.
However, unlike the situation in those cases, there is no evi-
dence here of assertions by the discriminatees that they had
been unlawfully discharged by the Respondent; there are no
claims of legal entitlement to their former positions based
on allegations of such unlawful conduct, nor are there demands
to be made whole for pecuniary losses resulting therefrom.
There is moreover a total absence of threats of Board action
for the Respondent's failure to comply with such demands: In
effect, there is nothing to differentiate the requests of the dis-
criminatees from ordinary applications for employment, but
the utilization of words denoting a desire for "old jobs back."
The soundness of the Board's view is emphasized by regard-
ing the phrasing of the request in relation to the attendant acts
and circumstances which shaped and reflected their true mean-
ing. The discriminatees had worked for the Respondent at man-
ual jobs which were neither unique nor distinctive. These jobs
were like many others on the Respondent's payroll in identical
or closely related classifications. Their requests, therefore,
could not reasonably have been taken to mean that they were
claiming specific identifiable jobs to which they regarded
5 Angelo Totneo.
TEXTILE MACHINE WORKS, INC. 629
themselves still entitled. A more likely construction, which we
adopt, was that they used the words "old jobs back" in the
practical sense of industrial workers to convey information to
the Respondent required by the situation. In effect they were
informing the Respondent that they were its former employees
whose old jobs had been as laborers, grinders, benchhands, or
any one of the numerous classifications by' which their jobs
had been designated, and that they wanted to come back to work
for the Respondent in capacities for which past employment
with the Respondent qualified them. We are convinced that the
Respondent's employment representatives so regarded these
requests. No discriminatee was turned down on the ground that
he was seeking reinstatement and not employment. Instead,
their requests were handled precisely as the Respondent cus-
tomarily handled applications for employment from individuals
seeking work for the first time. In most cases the discrim-
inatees made identifying entries in the employment register
used by the Respondent to register all applicants for employ-
ment. Those who did not register were identifiable from other
records in the Respondent's possession including their regis-
tration after the termination of the 1947 strike. To the inquiries
about "old jobs back," the response generally was that there
were no openings at that time but that the discriminatees would
be called when jobs became available. There were no protests
by the discriminatees that they wanted present restoration to
certain jobs and not promises of future employment as jobs
became available, but the record shows complete compliance
with the Respondent's procedures and acceptance of its con-
ditions. 6
Viewed as a whole, the foregoing circumstances convincingly
reflect a mutual understanding by the discriminatees and the
Respondent's representatives that the requests by the former
were for employment and not for the legal remedy of rein-
statement. The Respondent's refusal, for reasons proscribed
by the Act, to offer the discriminatees employment when suit-
able jobs became available was therefore, in accordance with
the Phelps Dodge principle, violative of Section 8 (a) (3) and
(1) of the Act.
Upon reconsideration of the record we believe, contrary to
the Board's finding in the Decision and Order herein, that the
complaint should be dismissed as to Angelo Tomeo, one of the
discriminatees. As distinguished from all the other discrim-
inatees, Tomeo at no time within 6 months before the filing date
6On March 22, 1948, the day after the union meeting which led to the filing of the requests
by the discriminatees, the Respondent's employment manager told Clarence Warczyglowa
and Charles DiStasio when each asked about getting his "job back" as described above,
that they could receive employment only as new employees. Warczyglowa then asked for
an application and DiStasio replied that "it's O.K. with me." We infer from the discrimi-
natees unhesitating acquiescence to the employment manager's condition on these two
occasions and his failure to state the condition to other discriminatees who spoke of "jobs
back" or used similar terms, that any doubt which the Respondent may have entertained
as to the desire of the discriminatees for new employment was dispelled when they first
started to file requests for employment.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the charge in this proceeding appeared in person at the Re-
spondent ' s employment office to request employment . However,
by letter dated April 5, 1948, he advised the Respondent as
follows:
I hereby apply for reinstatement to the same position
that I held as of -------------
This reinstatement to be without prejudice that might
be inferred from my participation in the work stoppage
of --------------
We are satisfied that the foregoing letter7 imparts , partic-
ularly in the light of the Pennwoven and Childs court decisions,
Tomeo's demand for restoration to his former position with the
rights and privileges he would have enjoyed had the Respondent
not discharged him after the 1947 strike. This is tantamount
to a demand for technical reinstatement which the Respondent
could have justifiably refused.
We deem it pertinent in this Supplemental Decision and Order
to make it clear that the Board ' s findings of 8 (a ) ( 3) and (1)
violations in this proceeding do not in the slightest degree de-
pend upon the view attributed by the court to the Board in its
Pennwoven decision, namely that "a discriminatory failure to
reinstate an employee is to be treated like a continuing tort."
The court interpreted the Board's holding in that case as pre-
dicated on the view that a reinstatement remedy for a discrim-
inatory failure to recall to work is available indefinitely under
the Act and may be prescribed by the Board although the charge
as to the underlying illegal conduct is filed more than 6 months
after its occurrence ; that Section 10 (b) has the effect in such
cases of limiting only the assessment of back pay, which may
not be computed for a period more than 6 months before the
filing date of the charge. The court believed that computation
of back pay in the Pennwoven case was ordered on this basis.
The Board did not mean to rely on any such theory and be-
lieved that it was not doing so in its Pennwoven decision. In
view, however , of the court ' s interpretation , we must point out
that in the instant decision the Board has not proceeded on any
such theory in finding discrimination or in framing its order.
Thus, the Board specified that it made no finding that the 1947
discharges constituted violations of the Act or, in any event,
called for remedial action. As our original decision herein
plainly shows , we refer to the circumstances concerning these
discharges only for the judicially approved purpose' of estab-
lishing the Respondent's antiunion motive as to the conduct
7 The record does not indicate the dates inserted by Tomeo in the blank spaces, but we
assume that he referred to the last position he held as an employee of the Respondent and
to the August 1947 strike.
8N.L.R.B. v. Clausen, et al., 188 F. 2d 439(C.A. 3), enforcing Fredrica Clausen, d/b/a
Luzerne Hide and Tallow Company, 89 NLRB 989.
ST. PAUL POSTAL EMPLOYEES 631
which occurred in 1948 and thereafter .' Our order , specifying
the precise date of the discrimination found as to each individ-
ual and the period for which back pay was awarded , is consis-
tent with the underlying basis for our findings as explicated in
our original decision in this case and as here reiterated.
For the reasons hereinabove stated, we affirm our Decision
and Order of November 5, 1951, as supplemented and modified
by this Supplemental Decision and Order.
IT IS HEREBY ORDERED that the complaint herein be, and
it hereby is, dismissed as to Angelo Tomeo and that the notice
to all employees , marked "Appendix," required by the Board
in its Decision and Order to be posted by the Respondent be
amended by deleting therefrom the name of Angelo Tomeo.
Chairman Herzog took no part in the consideration of the
above Supplemental ' Decision and Order.
9At footnote 24 in its Decision and Order the Board said, "Our consideration of such
evidence is not to be taken as a finding that the Respondent 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."
ST. PAUL POSTAL EMPLOYEES COOPERATIVE CAFETE-
RIA COMMITTEE and LOCAL 556, HOTEL, RESTAURANT
& CAFETERIA EMPLOYEES UNION, A. F. of L., Petitioner.
Case No. 18 -RC-1888 . June 17, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, a hearing was held before James A.
Karigan, hearing officer. The hearing officer ' s rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case to
a three -member panel [ Members Houston, Murdock, and
Styles].
Upon the entire record in this case , the Board finds:
1. Prior to 1945 the cafeteria concession inthe United States
Post Office Building in St . Paul, Minnesota , was operated by the
Dolan Company. In 1945 the arrangements governing the
operation of the cafeteria concession by the Dolan Company were
terminated . At that time and in accordance with "Rules and
Regulations issued by the Post Office Department For the
Operation and Conduct of Post Office Cafeterias in Federal or
Leased Buildings ," the St . Paul Postal Employees Cooperative
Cafeteria Committee, hereinafter called the Committee, was
organized for the purpose of operating a cafeteria in the base-
105 NLRB No. 84.
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