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National Labor Relations Board v. Duncan Foundry and Machine Works Inc.

December 1, 1970


Swygert, Chief Judge, Hastings, Senior Circuit Judge, and Cummings, Circuit Judge.

Author: Hastings


This matter is before us on application of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, Title 29 U.S.C.A. §§ 151 et seq., 160(e), for enforcement of its order dated May 29, 1969, and reported at 176 NLRB No. 31, amending and adopting the Trial Examiner's Recommended Order.

The order, as amended, directed respondent Duncan Foundry and Machine Works, Inc., Alton, Illinois (Company) to cease and desist from violating Section 8(a)(3) of the Act, Title 29 U.S.C.A. § 158(a)(3),*fn1 by withholding vacation pay or other vacation benefits from striking employees who did not return to work prior to the termination of the strike, and by denying to striking employees recalled after termination of the strike seniority rights and privileges relating to priority of employment when it restores or reduces its work force. It further ordered the Company to cease and desist from violating Section 8(a)(1) of the Act, Title 29 U.S.C.A. § 158(a)(1),*fn2 by engaging in like or related conduct that interferes with, restrains or coerces employees in the exercise of rights guaranteed by Section 7 of the Act, Title 29 U.S.C.A. § 157.*fn3 Affirmatively, the Company was ordered (a) to pay to striking employees who did not return to work before September 13, 1967, vacation pay withheld from them under the same formula used by the Company to compute the amounts paid to employees who did receive vacation pay in 1967, with interest from September 21, 1967; (b) to restore to the striking employees recalled as "temporary employees" after the termination of the strike their seniority rights; and (c) to make pertinent records available for Board inspection and to post appropriate notices.

The Company is engaged in the manufacture of steel castings and patterns. Prior to January 29, 1967, it employed approximately 350 production and maintenance employees and approximately 30 machine shop employees. From 1942 until 1966 the Company recognized, and executed successive collective bargaining agreements with, the Employees' Association of Duncan Foundry and Machine Works, Inc. (Employees' Association).

On February 21, 1966, United Steelworkers of America, AFL-CIO (Union) filed a petition with the Board for representation of the Company's employees. The Union won the subsequent Board-conducted election and was certified as the employees' collective bargaining agent.

Beginning October 4, 1966, the Company and the Union engaged in numerous bargaining sessions in an attempt to reach a collective bargaining agreement. After reaching an impasse, the Union called an economic strike on January 29, 1967. Shortly thereafter, the Company sent a memorandum to the employees stating that strikers who did not return to work by February 22, 1967, would be permanently replaced.*fn4 No new employees were hired to replace the strikers who did not return.

Negotiations continued between the Union and the Company until the Employees' Association filed a representation petition on September 13, 1967. The Company filed a petition questioning the Union's representative status the next day.*fn5

The Company shut down for two weeks in August of 1967 for maintenance and repairs. Approximately 55 employees continued to work during this period and the rest who were on the payroll did not work. All such nonstriking employees were paid a minimum of two weeks' wages, and those who worked during the shutdown received their regular wages as well.*fn6 Strikers who returned to work between the shutdown and the filing of the Employees' Association petition received a minimum of two weeks' pay, but no other strikers received any vacation benefits.

On January 31, 1968, the Union notified the Company that it was terminating the strike and, on behalf of the strikers, offered unconditionally to return to work. In March and April of 1968, the Company recalled approximately 40 workers as "temporary" employees, and two "permanent" employees. The former strikers returned to their old jobs and were assigned to perform the work they had performed prior to the strike at their former rates of pay.

The Company kept separate lists of "permanent" employees and "temporary" employees. The "permanent" list contained all of the employees who had abandoned the strike prior to its termination and the nonstrikers. It also included two former strikers who were recalled as "permanent" employees. The list of "temporary" employees included the rest of the recalled strikers.

The Company reduced its workweek twice but retained all employees. The notice of the second reduction stated that if there were no increase in production, the Company would return to a five-day week and reduce the number of "temporary" employees.

Both the trial examiner and the Board found that the denial of vacation benefits to striking employees who did not return before September 13, 1967, and the threat of layoff to the "temporary" employees constituted violations of Section 8(a)(3) and (1), supra.

We consider first respondent's threshold contention that it was denied due process of law in the Board proceedings. Respondent claims that it was not sufficiently apprised of the alleged wrongs committed and the persons allegedly wronged.

It is well settled that a valid complaint requires only a plain statement of the things claimed to constitute an unfair labor practice so that respondent may be put upon his defense. American Newspaper Pub. Ass'n. v. NLRB, 7 Cir., 193 F.2d 782, 800 (1951), aff'd on other grounds, 345 U.S. 100, 73 S. Ct. 552, 97 L. Ed. 852. Even where a complaint is devoid of notice of the unfair labor practice found, due process is satisfied by full litigation of the issues. NLRB v. Johnson, 6 Cir., 322 F.2d 216, 220 (1963), cert. denied, 376 U.S. 951, 84 S. Ct. 968, 11 L. Ed. 2d 971.

In the instant case, we think it clear that respondent was given adequate notice of the acts which constituted violations as well as of the employees affected. Additionally, our review of the record indicates all issues relating to the vacation ...

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