Tomar Products, Inc.

National Labor Relations Board - Board DecisionsFeb 16, 1965

151 N.L.R.B. 57 (N.L.R.B. 1965)

TOMAR PRODUCTS, INC. 57 Tomar Products , Inc. and District 6, International Association of Machinists , AFL-CIO. Case No. 3-CA-3388. February 16, 1965 DECISION AND ORDER On October 7, 1964, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the General Counsel and Respondent filed exceptions to the Decision with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Tomar Products, Inc., Rochester, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge filed on February 25 and April 7, 1964, respectively , by District 6, International Association of Machinists , AFL-CIO ( herein called the Union ), a complaint , dated April 17, 1964, was duly issued . As amended at the hearing , the complaint alleges that Respondent , Tomar Products , Inc. (herein called the Company ) has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and ( 7) of the National Labor Relations Act, as amended , herein called the Act: ( 1) by discharging four employees on February 18, 1964, for having engaged in a concerted walkout or strike, (2) by failing and refusing to reinstate said four employees and three additional employees since February 19, 1964, because of their participation in a concerted walkout or strike, and ( 3) by threatening employees with discharge for having engaged in con- certed activity for their mutual aid and protection . Respondent, in its answer to the complaint , denied that it had engaged in the alleged unfair labor practices . A bearing in this proceeding was held before Trial Examiner Herbert Silberman at Rochester, 151 NLRB No. 18. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York, on various days between June 10 and 15, 1964.1 Oral argument at the close of the hearing was waived by the parties. Briefs were duly filed with me by General Counsel and by Respondent. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent , a New York corporation , operates a plant in Rochester , New York, where it is engaged in the manufacture , sale, and distribution of utility buildings, lawn sweepers , handcarts , and related products . During the past year , in the course and conduct of its business operations , Respondent purchased and received at its plant in Rochester , New York, materials valued in excess of $50,000 which had been shipped to it directly from points outside said State, and during the same period , Respondent sold and shipped from its New York plant directly to points outside said State finished products valued in excess of $50,000 Respondent admits , and I find , that the Com- pany is engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. Sequence of events The material events with which this proceeding is concerned occurred between February 11 and 20, 1964. Earlier in the month, Thomas Maguire, the Company's president, instructed Gerald D. Roche and Herbert Binsack, who held the respective positions of quality control manager and purchasing agent, to participate more fully in the supervision of production activities in order to effect an improvement in the quality of the product output. In discharging this assignment Roche and Binsack caused considerable resentment to develop among the employees many of whom believed that they were being unfairly harassed. Two supervisors, William Adams and Eugene Bowser, who similarly were displeased with the behavior of Roche and Binsack, constituted themselves a committee to discuss with Maguire the employees' grievance regarding Roche and Binsack. Before speaking with Maguire, William Adams circulated a petition among the employees to which he obtained 34 signatures (including those of Eugene Bowser and himself) The petition was nothing more than a blank sheet of paper.2 Although William Adams testified that he gave sub- stantially the same explanation regarding the purpose of the petition to each employee who signed the instrument, the testimony of Adams and other witnesses called by the General Counsel indicate that there were differences in what was told the various employees. However, I find that employees who signed the petition understood that it was intended to authorize William Adams and Eugene Bowser to speak with Maguire about the behavior of Roche and Binsack and that some of these employees further understood either that they were agreeing to walk out if anyone was discharged for having signed the petition or that they were agreeing to walk out if any of the signatories were discharged without cause. About February 12, 1964, William Adams and Eugene Bowser met with Maguire. They complained about Roche's and Binsack's abuse of employees and about the latter's practice of reprimanding employees outside the presence and without the approval of the employees' foremen Maguire called Roche and Binsack into the meeting and instructed them that in the future their criticisms of employees were to be relayed through or made in the presence of the employees' foremen. Adams and Bowser voiced their satisfaction with this resolution of the grievance However, they did not report the outcome of the meeting to the other employees who had signed the petition.3 1 The document identified as "Respondent's Exhibit No 5" in the parties' stipulation, dated August 13, 1964, is received in evidence Due consideration has been given to said document in reaching the decision in this case 2 On February 18, 1964, a week after he had obtained the signatnies to the petition, William Adams wrote the following legend at the top of the instrument, "Employees Who Sign For This Walkout " 3 There is a conflict in testimony between Maguire and William Adams and Eugene Bowser as to whether the latter, during their meeting with Maguire, mentioned the peti- tion. There is no dispute that the petition was not shown to Maguire but that Maguire was told that Adams and Bowser had the support of a majority of the employees Whether any specific mention of the petition was made at the meeting is of significance only insofar as it tends to support the allegation of the complaint that Maguire and Production Man- ager James Britt threatened to discharge employees who had signed the instrument. I credit Maguire that the petition was not mentioned during the meeting. TOMAR PRODUCTS, INC. 59 According to four witnesses (Eugene Bowser, Roger Novack, Harvey Bonk, and John Neibel) called by General Counsel, on the same day, shortly following the above-described meeting, Maguire made a speech to the plant employees. Their individual recollections as to what Maguire said differ substantially. The 4 were in agreement on one point only: that Maguire made reference to the fact that he had fired 50 people and could do so again. According to Novack, Maguire also said that he knew about the petition and would fire anyone whose name was on the petition. Eugene Bowser did not testify that any such threat was made, but testified that Maguire said if any employees did not like the way he was running the plant they could leave. Bonk and Neibel testified that Maguire threatened to discharge those who had signed the petition, but they did not agree with each other or with Novack as to the context in which such threat was made. On the other hand, Kenneth Bowser, James Bowser, Robert Banker, Jack Adams, and William Adams, who also testified at the hearing as witnesses for General Counsel and who presumably were present on the occasion of Maguire's speech, if such speech had been given, were not asked any ques- tions and gave no testimony concerning the matter. Maguire denied that he made a speech to the employees on the occasion in question, but explained that certain remarks attributed to him were made in speeches given several months earlier. Pro- duction Manager James Britt corroborated Maguire that no speech was made at or about the time alleged in the complaint. I credit Maguire that he did not make the threats attributed to him nor make any speech to the employees during the week end- ing on February 15, 1964. Despite his reputed short and hot temper, Maguire testified at the instant hearing in a deliberate manner and with seeming careful attention to the accuracy of his statements. Maguire impressed me as being a truthful witness, con- scious of his obligation to describe the facts about which he was being interrogated without evasion or concealment. Moreover, apart from the denials by Maguire, the inconsistencies in the testimony of the various witnesses called by the General Counsel concerning the alleged speech plus the failure of General Counsel to question five witnesses about the event militate against a finding that Maguire had made the alleged coercive statement. I also do not credit the testimony of Harvey Bonk that on the same day, while he was walking with Production Manager James Britt to the place in the plant where Maguire was going to speak to the employees, Britt informed Bonk that if the former learned the names of the employees who had signed the petition he would discharge them. The crucial events in this case occurred on Tuesday, February 18, 1964. Foreman Eugene Bowser and employees James Bowser and Harold Crissman, who had spent the previous weekend together in Pennsylvania and who without advance permission were absent from work on Monday, February 17, reported late to work on Febru- ary 18. Upon their arrival, Maguire spoke to the three men and reprimanded them for their absences and tardiness He also demoted Eugene Bowser from the position of foreman. About 12.30 p.m. on the same day James Bowser, who, at least partly for spiteful reasons, had requested a transfer from his job as riveting machine operator, had a conversation with Maguire about his request. The discussion became acrimonious and ended with the termination of James Bowser's employment 4 Following this con- versation James Bowser informed his brother Eugene Bowser that he had been dis- charged for requesting a transfer. Woid of James Bowser's alleged discharge soon spread among the employees and prompted discussions as to whether they should walk out.5 Within an hour following James Bowser's termination 10 employees had left the plant and had gathered in the Company's parking lot They were James Bowser, Eugene Bowser, Kenneth Bowser, Jack Adams, John Neibel, Harold Crissman, Harvey Bonk, Robert Banker, Roger Novack, and William Adams 6 The General Counsel contends that Maguire discharged four employees, Kenneth Bowser, Eugene Bowser, Jack Adams, and John Neibel, for their participation in the walkout and that such discharge was effected on February 18, 1964, before they had 4I find that James Bowser quit his job. However, it is immaterial to the decision herein whether Bowser quit his employment or was discharged 5 The discussions varied Some employees urged a walkout on the basis that James Bowser's discharge was unfair or that it demonstrated the lack of job security. Some other employees took the position that by signing the petition they were committed to walk out upon the discharge of any other signatory 9 Shortly after his conversation with James Bowser, Maguire called Crissman to his office. The discussion between the two concluded with the termination of Crissman's employment. Thus, like James Bowser, Crissman had ceased to be in the Company's employ by the time he left the plant 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD left the Company's building.? Presumably this position is based upon the fact that Maguire came upon a group of employees, which included said four men, standing at the timeclock and told them that if they were leaving they should get out of the plant and return on Friday for their pay. In the circumstances, I do not consider that this statement alone amounted to a discharge of the four employees. When the remark was made Maguire already was aware that employees were leaving their work. To the group at the timeclock Maguire, in effect, took the fully defensible position that if they were not going to work they should not congregate in the plant. Maguire's advice that they should return for their pay on Friday does not connote the severence of their employment, particularly as several employees who participated in the walk- out had applied for and were refused their pay on that day. The 10 employees remained in the parking lot until they were evicted. Before they left the parking lot, a city police officer, Lt. Joseph Yurgealitis, who had obtained Maguire's reluctant assent to talk with their spokesman, transmitted such invitation to the group. However, someone yelled, "To hell with him," and no effort was made by any of the employees who had walked out to speak with Maguire on that day concerning the matter.8 While the strikers were gathered outside the Company's parking lot they were approached by a union representative and were invited to attend a meeting that evening. At the meeting they were advised to go back to work the next day. The following morning most of the group returned to the plant. There is conflict among the various witnesses as to what transpired at the plant and whether the employees who had returned were prevented by company representatives from entering the plant and applying for reinstatement. It is unnecessary to resolve this conflict because there is no dispute that later in the same morning, Harold Cohen, an attorney for the Union, telephoned John F. Growney, the Company's office manager, and requested the Company to reinstate the employees who had walked out. Growney advised Cohen that the Company refused to do so because the Company considered that the employees had quit its employ. The following day Cohen wrote a letter to the Com- pany and again requested the reinstatement of the employees who had walked out. However, the employees have not been reinstated. The complaint alleges that since February 19, 1964, the Company has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by its refusal to reinstate Eugene Bowser, Kenneth Bowser, Jack Adams, John Neibel, Harvey Bonk, Roger Novack, and Robert Banker. B. Conclusions The termination of James Bowser's employment triggered the walkout on Febru- ary 18, r964. Within an hour after the event 10 employees had stopped working and had left the plant. Respondent was aware that its employees were engaged in a group protest.9 Maguire testified that he told a group of five employees "that if they were leaving to get the hell out of the plant." And further demonstrating that the Com- pany understood the walkout was a concerted protest on the part of its employees is the testimony that, before the strikers were evicted from the Company's parking lot, Maguire agreed to talk with their spokesman. In these circumstances, the advice given on February 19 to Harold Cohen, who was then acting as the representative of the striking employees, by John F. Growney that the Company was not going to take them back, constituted effective notice of their discharge, notwithstanding Growney's explanation to Cohen that the Company considered that the strikers had quit its employ. A concerted stoppage of work by employees (which Section 501(2) defines as a "strike") is an activity that is protected by Section 7 of the Act unless it is for an objective outside the broad reach of the term "mutual aid or protection," 10 or unless it is to compel the emloyer to take unlawful or other action antithetical to the purposes of the Act,11 or unless the strike is characterized by violence or substantial miscon- 7 General Counsel did not indicate either at the hearing or in his brief what specific evidence he is relying upon to support this contention 8 Despite conflicting testimony on the part of various participants in the walkout, I credit the testimony of Lieutenant Yurgealitis 8 Absence of knowledge on the part of their employer alone does not deprive em- ployees engaged in concerted activities of protection under the Act. Home Beneficial Life Insurance Company v. N.L.R.B., 159 F. 2d 280, 285-286 (C A. 4), cert. denied, 332 U S. 758. lO Joanna Cotton Mills Co. v. N.L .R.B., 176 F. 2d 749 (C.A. 4) ; N.L.R .B. v. Reynolds International Pen Company , 162 F. 2d 680 (C A. 7). n N.L.R.B. v. Sands Manufacturing Co, 306 U.S 332 ; N.L.R.B. v. Draper Corpora- tion, 145 F. 2d 199 ( C.A. 4) ; American News Company , Inc., 55 NLRB 1302. TOMAR PRODUCTS, INC. 61 duct 12 None of these exceptions attach to the strike in this case. Although neither prior to nor contemporaneous with the walkout did the strikers attempt to arrive at a specific mutual agreement as to why they were leaving work or what they were- seeking to accomplish by such action, nevertheless, the walkout having been pre- cipitated by James Bowser's termination was, at least in part, in protest thereof.13 Such reason for concerted action is within the statutory confines of the term "mutual- aid or protection." On the other hand, the strikers were not seeking to compel the- Company to take any unlawful or statutorily offensive action and did not participate in any acts of violence or other misbehavior. Accordingly, the strikers are entitled to the full measure of protection that is accorded by statute to employees who exercise rights granted by Section 7 of the Act. In its counsel's cogent brief, Respondent advances the proposition that employees acting in concert have affirmative obligations which they must discharge vis-a-vis their employer in order to obtain statutory protection for their activities. Respondent lists what it considers the minimum requirements which should be met in discharging such obligations. Despite the thoughtful exposition of this thesis, it represents a substan- tial departure from established precedent and would impose conditions and restric- tions upon employees' exercise of the rights granted by Section 7 beyond the discretion of the Board to engraft upon the Act. Among other things that Respondent adverts to in its argument is that the employees who took part in the walkout did not give the Company notice of the reason for their action and refused to discuss the matter with the Company. However, here, as in N.L.R.B. v. Washington Aluminum Company, Inc., 370 U S. 9, the circumstances were such that the Company was aware of the situation which triggered the walkout. Within minutes after the termination of James Bowser employees began to leave the plant 14 and, despite the absence of specific notice, the relationship between Bowser's termination and the walkout was reasonably clear to Respondent. Furthermore, the strikers, having quit their work in a spon- taneous reaction to James Bowser's termination and having decided to abandon the strike that same night, never crystallized their mutual grievances or formalized their group objectives. Thus, as a practical matter, the strikers never were in a position to give the Company any more definite information concerning their walkout than Respondent already had learned from the event itself. The Company was not preju- diced by the lack of formal notice because the haste with which the Company took the decisive and drastic step of discharging the strikers suggests that formal notice by the employees would have had no influence upon Respondent's retaliatory response to the strike. Respondent attempts to distinguish this case from the Washington Aluminum Com- pany case on the basis that here the striking employees affirmatively refused to discuss their action with the Company. Without passing upon the question of whether a persistent and prolonged refusal by strikers to discuss their complaints or to discuss proposals for settling the walkout with their employer would remove the strike from the ambit of the Act's protection, the situation here does not lend itself to any such proposed limitation upon the scope of Section 7. Soon after the employees had left the plant, a police officer, Lieutenant Yurgealitis, extended an invitation to their spokesman to confer with Maguire. However, at the time there was no acknowl- 12 N.L.R B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, A.F.L. (Jefferson Standard Broadcasting Company), 346 U S. 464; Southern Steamship Company v. N.L R.B , 316 U.S. 31 ; IN L.R B. v Fansteel Metallurgical Corporation, 306 U.S. 240; N.L.R.B. v. Montgomery Ward if Co., 157 F. 2d 486 (C.A. 8) ; Victor Products- Corporation v. N.L.R.B , 208 F. 2d 834 (CAD C ). 13 Moreover, the striking employees, all of whom had signed the petition, were disatis- fled with their conditions of employment (despite such improvement as was obtained' from the meeting the previous week between Maguire and William Adams and Eugene Bowser). A group walkout for such reason-even where there is no common focus of dissatisfaction and each participant's complaint differs from all the others-is a protected concerted activity. See Phaostron Instrument and Electronic Company, 146 NLRB 996; Lamar Creamery Company, 148 NLRB 323. 11 There is no evidence, nor does Respondent contend, that the walkout was in protest of the demotion of Eugene Bowser or that such demotion was a proximate cause for the strike Similarly, Respondent does not contend that Crissman's termination, which occurred soon after that of James Bowser, was a precipitating cause of the strike. However, even if it were, the same statutory protection would attach to a strike in protest of Crissman ' s termination as to a strike in protest of James Bowser' s termina- tion For reasons discussed below, the protected nature of the strike is unaffected by the fact that James Bowser ( and Crissman ) were not discharged but quit their employ 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edged leader or spokesman for the group 15 Thus, the invitation extended by Lieu- tenant Yurgealitis was premature insofar as there was no spokesman to whom it could properly be addressed . Furthermore , the rejection of an invitation to confer with their employer by a group of employees engaged in a spontaneous walkout at a time when the passions and excitement attendant upon such action had not yet sub- sided cannot be equated with a considered refusal to enter into discussions 16 In this case , rather than the strikers , it was the Company which prevented any bargain- ing about the strike because the next morning when Harold Cohen telephoned the Company and spoke with Growney about the reinstatement of the strikers, he was advised in effect that they had already been discharged . Such action , taken less than a day after the walkout began , effectively precluded any negotiations between Respondent and the striking employees On the other hand, the absence of any reason being advanced by the Company for the discharge of the striking employees other than that they had voluntarily quit its employ indicates that, in fact, they were discharged for their participation in the strike.17 Respondent contends that the Washington Aluminum Company case contemplates that in order for employees engaged in a walkout to obtain the protection of Section 7 they must at some time make "a specific demand upon their employer to remedy a condition they found objectionable ." Assuming without agreeing that the case stands for such principle ,18 I am confident that the Supreme Court did not intend to set up a race between strikers and their employer as to whether the former will give the employer notice of their complaint before the latter can discharge them. Such inter- pretation of the Supreme Court's decision would lead to absurd results 19 Here Respondent discharged the strikers before a reasonable period of time had elapsed is Although the previous week William Adams and Eugene Bowse >:, upon their own initiative , had circulated a petition among the employees and had spoken with 'Maguire about the employees ' grievance , there was no organization of the Company ' s employees in existence of which either Adams or Bowser acted as titular or de facto head, and it does not appear that in connection with the walkout on September 18 either was the designated or acknowledged spokesman for the group. 16 Thus, Lieutenant Yurgealitis testified that when he ad%iced the strikers that 'Maguire would talk with their spokesman , "The rest of them were lost They were undecided They didn ' t know what to do " 17 The employment of James Bowser and Harold Crissman was terminated before the walkout began Accordingly , they are not included in the group of employees whom the complaint names as having been unlawfully discharged William Adams is also excluded because as a supervisor he did not enjoy the protection of the Act 1S The Supreme Court has not indicated disagreement with cases which have held that the Act shields employees from reprisals for engaging in concerted activities which have no immediate connection with their conditions of work . E g, Bethlehem Ship- building Corporation, Ltd. v N.L R B , 114 P . 2d 930, 937 (C.A 1) ; Red Top Cab 1 Baggage Co , 145 NLRB 1433 19 Respondent relies heavily upon N L R B v Ford Radio if Mica Corporation, 258 F. 2d 457 ( C A. 2) Without deciding the extent , if any, that the opinion in that case has been modified by the Washington Aluminum Company case, on its facts the case can readily be distinguished from the stiuation here In the Ford case, the court explained its decision as follows: We do not bold as a matter of law that employees engaging in concerted activities must give formal or even informal notice of their purpose However , where the employer from the facts in its possession could reasonably infer that the employees in question are engaging in unprotected activity , justice and equity require that the employees , if they chose to remain silent , bear the risk of being discharged Unlike the situation in the Ford case, there were no facts in the Company ' s possession (certainly none as to which any testimony was adduced at the hearing ) from which it could reasonably infer that the employees were engaged in an unprotected activity . The Com- pany understood that the proximate reason for the employees having stopped work was the termination of James Bowser and Respondent did not offer any evidence purporting to establish that It believed the employees were striking for any other reason (Respond- ent contends that William Adams embarked upon the strike as a frolic As William Adams was a supervisor who was not entitled to the Act's protection , it is unnecessary to decide whether the testimony regarding his reasons for joining the walkout were of such natuee as to render his participation in the strike an unprotected activity. His attitude was personal There is no evidence that it was shared by any other striker or that Respondent had any reason to believe that any other striker was similarly motivated Furthermore , the Act's protection "will not be denied because of the motives of those engaging in the activity " Joanna Cotton Mills Co , supra, at p. 753 ) TOMAR PRODUCTS, INC. 63 within which they might have advised the Company of their grievances. Having deprived the strikers of an opportunity to inform it of their complaints, Respondent cannot now interpose the employees' failure to do so as a defense. Respondent makes the further argument that as the walkout was in protest of the discharge of James Bowser and as James Bowser had not been discharged but quit his employment, there was no legitimate reason for the strike and therefore it was not a protected activity. This argument questions the justification or wisdom of the action taken by the employees in going out on strike However, contrary to Respondent, the protection of Section 7 of the Act is not conditioned upon the employees acting wisely or with justification.20 The Company on February 19, 1964, by discharging the seven employees named in the complaint for their participation in the strike which began on February 18, 1964, has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has violated Section 8 (a) (1) thereof. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connec- tion with its operations, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent on February 19, 1964, discharged and thereafter unlawfully has refused to reinstate Eugene Bowser, Kenneth Bowser, Jack Adams, John Neibel, Harvey Bonk, Roger Novack, and Robert Banker to their former or to substantially equivalent jobs because of their participation in a strike, I shall recom- mend that Respondent offer each of them immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of his discharge, by payment to him of a sum of money equal to the amount which he normally would have earned from February 19, 1964, to the date of Respondent's offer of reinstatement, less his net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Co., 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By discharging Eugene Bowser, Kenneth Bowser, Jack Adams, John Neibel, Harvey Bonk, Roger Novack, and Robert Banker on February 19, 1964, and there- after refusing to reinstate said employees to their former or to substantially equivalent positions because of their concerted stoppage of work, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and Respondent thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not engaged in any unfair labor practices by reason of conduct alleged in the complaint to have been in violation of the Act except insofar as such conduct has been found hereinabove to have violated Section 8(a) (1) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that Respondent, Tomar Products, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from interfering with, restraining, or coercing employees in the exercise of their right to engage in concerted activities for their mutual aid or 20 N L .R B V. Solo Cup Company, 237 F. 2d 521 (C A. 8) ; N.L.R.B v. Mackay Radio & Telegraph Co , 304 U S 333, 344. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protection by discharging employees for participating in concerted stoppages of work or strikes or by otherwise taking reprisals against employees for engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: ,(a) Offer Eugene Bowser, Kenneth Bowser, Jack Adams, John Neibel, Harvey Bonk, Roger Novack, and Robert Banker immediate and full reinstatement to their former or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and to its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant to a determina- tion of the amount of backpay due to said employees. (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (d) Post at its place of business in Rochester, New York, copies of the attached notice marked "Appendix." 21 Copies of such notice, to be furnished by the Regional Director for Region 3, shall, after being duly signed by an authorized representative of the Company, be posted upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.22 21 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice . In the further event that the Board 's Order Is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to engage in concerted stoppages of work, or strikes, or other con- certed activities for the purpose of mutual aid or protection by discharging or by taking other reprisals against any employees who may engage in any such activity. WE WILL offer Eugene Bowser, Kenneth Bowser, Jack Adams, John Neibel, Harvey Bonk, Roger Novack, and Robert Banker full reinstatement to their former or to substantially equivalent positions without prejudice to their seniority and other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge. TOMAR PRODUCTS, INC. Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. ADDISON SHOE CORPORATION 65 Employees may communicate directly with the Board's Regional Office, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. TL 6-1782, if they have any question concerning this notice or compliance with its provisions. Addison Shoe Corporation and United Shoe Workers of America, AFL-CIO. Case No. 26-CA-1804. February 16, 1965 DECISION AND ORDER On November 4, 1964, Trial Examiner Samuel M. Singer issued his Decision 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, as set forth in the attached Decision. He also found that the Respondent had not engaged in other unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board adopts as its Order the Order recommended by the Trial Examiner and orders that Addison Shoe Corporation, its officers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. 1 We correct the Trial Examiner's Decision at footnote 3 to read "Friday, April 3." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner Samuel M. Singer in Wynne, Arkansas, on August 4, 1964, on a complaint dated June 9 , 1964, issued by General Counsel through the Regional Director for Region 26, based upon charges (filed April 24, May 11, and June 1, 1964) by the Charging Party (hereafter called the Union) against Respondent. The issues litigated were whether Respondent violated Section 8 (a) (1) of the Act by engaging in acts of interference, 151 NLRB No. 17. 783-133-66-vol. 181-6