Differential Steel Car Co.

In the Matter of DIFFERENTIAL STEEL CAR COMPANY and INTERNA- TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO Case No. 8-0-2029.-Decided January 7,1948 Messrs. Thomas E. Schroyer and John A. Hull, Jr., for the Board. Mr. Alan B. Loop, of Toledo, Ohio, for the respondent. Messrs. Ralph Brown and Walter Madrzykowski, of Toledo, Ohio, for the Union. DECISION AND ORDER On April 15, 1947, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions noted below: 1 1. The Trial Examiner found, as fully set forth in the copy of the Intermediate ` Report" attached hereto; that by ,certain -activities of its supervisory employees the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We agree with this conclusion. We limit the grounds for our finding, however, to the remarks of Collingwood, Houck, and Dulaney to the extent that such remarks constitute in- quiries as to the individual employee's union activity or his knowledge about the progress of organization. i These provisions of Section S (1), (3), and (5) of the National Labor Relations Act, Nshich the Thal Examiner herein found wen: violated, are continued in Section S (a) (1), 8 (a) (3),-and 8 -(a) (5) of the Act, as amended. 75 N. L R, B , No. 86 714 DIFFERENTIAL STEEL CAR COMPANY 715 2. We agree with the Trial Examiner that the respondent used a discriminatory standard in selecting employees for lay-off and that the respondent thereby violated Section 8 (1) and (3) of the Act. We agree also with the Trial Examiner that the lay-off, as distin- guished from the selection of employees for lay-off, was dictated by the respondent's need to lessen its working force due to its inability to secure steel. The record discloses that by July 10, 1946, the respondent was aware of the fact that it would not be able to get any needed deliveries of steel until December. It became apparent, therefore, that some curtailment of operations would be necessary. On the afternoon and in the even- ing of July 17, Vice-President Houck, Superintendent Myers, and Secretary Blackford met and made up a list of 15 employees who were to be laid off. This list was drawn up the day after the first union meeting was held and included Kenneth Judd, Chairman of the Union. The list drawn up by Houck, Myers, and Blackford was given to President Thomas who added two names, one of which was that of the Secretary of the Union, Woodrow McGill, making the total 17. Fourteen of the 17 employees had joined the Union on July 16 and 17.1 Notice of the lay-off was given to each employee affected on July 18. The respondent denies knowledge of union membership at the time the list was made up or consideration of the factor in making up the list. The Trial Examiner found, and we agree, that Foreman Col- lingwood was in the vicinity of the union meeting place on the night of July 16, that he saw the employees arrive for the meeting, and that Collingwoocl, knowing that the fact that its employees were attending the union meeting would be of interest to the respondent, made a re- port to the respondent naming those he saw on that occasion. We do not, however, limit the basis for finding that the respondent knew of the union affiliation of its employees to the activities of Collingwood. Respondent's knowledge of the union affiliation of its employees is supported further by the statement overheard by employee Fisher in 2 The Tiial Examiner found a ratio of 15 union to 2 non -union employees among those laid off This total apparently includes employee Vernon Haimon, who joined the Union on July 19, after the list was drawn up The cordect ratio for the purpose of determining whether a disproportionate number of union members were included in the lay-off should be 14 to 3 This couection, however. does not alter our conclusion as to the discriminatory nature of the selection of employees for lay-off On July 18, the date on which the lay-off notices 'acre distubuted, 39 of 61, or 64 peicent of the employees had signed cards In contrast to the percentage of the respondents employees who had designated the Union, S2 percent of those who were laid off had done so, excluding the one employee who signed his card on July 19 Only 3 of the 22 emplom ecs 'a ho had not designated the Union, or 14 percent, were Included in the lay-off In our opinion this disproportion in selection, resulting in the lay-off of 36 percent of the employees who were union members and only 14 percent of those who were not, while less than that found by the Trial Examiner, is nevertheless revealing 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the employees laid off were referred to as "a bunch of agitators" and by the disproportionate number of union members included in the lay-off. The respondent contends that it selected for lay-off employees who were least suited to perform the work which remained to be done, and that it included among them those whose records for attendance were unfavorable. - Seniority , allegedly, was not taken into account. How- ever, the respondent offered no evidence to indicate in what way the qualifications of the employees laid off fell short of those retained.3 Nor did the respondent offer any evidence in support of its contention that included in the lay-offs were employees whose records for attend- ance were unfavorable. Conceding that the respondent did not recog- nize seniority , it is true, as the Trial 'Examiner found, that long serv- ice is in itself an indication that an employee has performed satis- factorily and gives basis to the conclusion that the more senior worker would ordinarily be among the last to be laid off. The respondent contends, however, that during the war, employees were taken on and retained who were not qualified. We are not persuaded by this con- tention in view of the facts of this case. The record shows that, with very few exceptions , all the respondent's employees were hired dur- ing the war period. There appears to be no reason why a greater per- centage of union members should be less qualified than non-union employees hired during the same %var period. Moreover, the respond- ent admittedly offered to reemploy all the employees laid off. Pre- sumably it would not have done so if any of these employees, as the respondent now contends, were not qualified. We therefore find that (1) the disproportionate number of union members who were ter- minated, ( 2) the fact that workers with more than 3 years' service were let go in preference to some who had worked much shorter periods; and (3) the further fact that Myers remarked to Houck that he was getting rid of some "agitators,"' when viewed together with the respondent's opposition to unionization as evidenced by the in- terrogation of its employees about union activities , establishes that the respondent used a discriminatory standard in selecting employees for lay-off and that the respondent thereby violated Section 8 (a) (1) and (3) of the Act, as amended. We cannot, however, agree with the Trial Examiner's finding that the letter of October 29 was not an offer of reinstatement. The evi- dence supports the conclusion that, due to the nature of the respond- ent's business , as contrasted to a general production plant, employees had no- specific jobs , but were constantly transferred from one type 3 Cf. Matter of the Sandy Hill Iron and Brass Works, 69 N L R B 355, 165 F. ( 2d) 660 (C C. A 2 ), decided Nov . 5, 1947. DIFFERENTIAL STEEL CAR COMPANY 717 of work to another . The record discloses , and we find, that the re- spondent was prepared to offer the men work on jobs as similar as operating conditions would permit to those from which they were laid off on July 19. While the respondent refused to give any assurance as to the length of employment to two employees who responded to the offer, this was in no sense a variation in the terms of the original employment , as the respondent never guaranteed employment for any particular time. We accordingly find that the letter of October 29, 1946, was an offer of reinstatement , and will limit the remedy to the payment of back pay from July 19, 1946 , the date of the lay-off, to November 1, 1946, the date on which the employees were to return to work. 3. We have found that the record supports the conclusion that the ratio of the union to non -union employees among those laid off was 14 to 3.4 The Trial Examiners finding that 4 of the union members who were laid off would have retained their employment in the absence of discrimination is based upon the ratio of 15 to 2, as found by him. We shall therefore modify this finding to reduce the number from 4to3. 4. As the record discloses that Vernon Harmon, one of the em- ployees whom the respondent is alleged to have discriminatorily dis- charged or laid off, did not join the Union until after the list of employees who were to be laid off was drawn up, we shall dismiss that portion of the complaint alleging his discriminatory discharge or lay- off. 5. The Trial Examiner found that on July 19 , 1946, the Union represented 24, a clear majority of the remaining 44 workers , for bar- gaining purposes and was on that date , and now is, the exclusive representative of the respondent's employees. The record discloses that at the first organizational meeting of the employees on July 16, 35 of the 61 workers then in the appropriate unit designated the Union. Between July 17 and July 19, 5 additional employees signed cards, making a total of 40 employees represented by the Union . On July 19, 17 workers were laid off , thus reducing the number of employees in the unit to 44. Of the 17 workers laid off, 15 had signed union cards. On July 19, the Union therefore represented 25 out of a total of 44 employees, rather than 24 as found by the Trial Examiner.5 This 4 As noted above, these figures do not reflect the fact that one of the three employees noted joined the Union on July 19, as this occurred after the lay-off list was drawn up. 'The Tiial Examiner's finding that on July 19, 24 out of a total of 44 employees had designated the Union is based on his incorrect finding that 16 out of the 17 employees laid off had designated the Union Two additional cards were obtained by the Union on August 6 and August 12. These are not included in the total. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD error, however, does not affect the Trial Examiner's ultimate finding, with which we agree, that the Union on July 19 represented a majority of the respondent's employees and was on that date, and now is, the exclusive representative of the respondent's employees. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Differential Steel Car Company, Findlay, Ohio, and its officers, agents, successors, and assigns.shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, as the exclusive representative of all production and maintenance employees of the respondent working at the North and South plants, excluding clerical employees and supervisors, in respect to rates of pay, wages, hours of employment, and other terms or con- ditions of employment; (b) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, or in any other labor organization of its employees, by employing a discriminatory standard in selecting employees for lay- off, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, as the exclusive representative of all production and maintenance employees working at the North and South plants, excluding clerical employees and supervisors, in respect to rates of pay, wages, hours of employment, and other terms or conditions of employment, and if an understanding is reached, embody such under- standing in a signed agreement; DIFFERENTIAL STEEL CAR COMPANY 719 (b) After selecting employees for lay-offs as of July 19, 1946, make Whole in the manner outlined in the Intermediate Report in the sec- tion entitled "The remedy," as modified by our findings, those individ- uals named in the complaint who are not reached for lay-offs as of July 18, 1946, by the application of non-discriminatory standards; (c) Post at its North and South plants in Findlay, Ohio, copies of the notice attached hereto marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respondent's repre- sentative, be posted by respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Eighth Region (Cleve- land, Ohio) 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, insofar as it alleges that the respondent discriminatorily discharged or laid off Vernon Harmon in violation of Section 8 (3) of the Act, be, and it hereby is, dismissed. MEMBER REYNOLDS took no part in the consideration of the above Decision and Order. APPENDIX A 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 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 or assist International Union, United Automobile, Aircraft'and Agricultural Implement Work- ers of America, CIO, or any other labor organization to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 6 In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there shall be inserted before the words "A Decision and Order" the words "Decree of the United States Circuit Couit of Appeals Enfoicmg" 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole for any loss of pay suffered as a result of the discrimination, the employees discriminated against by means of the lay-off of July 19, 1946. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment and other conditions' of employ- lnelnt, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees working at the North and South plants excluding clerical employees and supervisors. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. DIFFERENTIAL STEEL CAR COMPANY, Ennployer. Dated--- ----------- By--------------------------------------- (Representative ) ( Title) INTERMEDIATE REPORT Messrs, Thomas E Sli.i over and John A Hull, .h , for the Board. Mi Alaai B Loop, of Toledo, Ohio, for the respondent. Messers . Ralph Brown and Waiter Madrzykowski , of Toledo , Ohio, for the Union. STATEMENT OF THE CASE Upon an amended charge filed September 3, 1946 , by International Union, United Automobile , Aircraft and Agricultural Implement Woikers of America, CIO, herein called the Union , the National Labor Relations Board, herein called the Board , by its Regional Director for the Eighth Region ( Cleveland , Ohio), issued its complaint dated October 21, 1946, against Differential Steel Car Com- pany, Findlay , Ohio, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3) and ( 5) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the charge, accompanied by notice of hearing , were served upon the respondent and the Union. With respect to unfair labor practices, the complaint as amended at the hearing alleged in substance , that the respondent : ( 1) on and after July 19, 1946, unlaw- fully refused to bargain with the Union which, allegedly , at all such times was the designated bargaining representative of a majority of respondent ' s employees in an appropriate unit, ( 2) on or about July 18, 1946, discriminatorily discharged DIFFERENTIAL STEEL CAR COMPANY % `2l or laid off 14 employees' because of their membership in or activity on behalf of the Union; and (3) from about July 16, 1946, to the date of issuance of the complaint, urged its employees to refrain from becoming or remaining members of the Union, questioned them concerning Union membership and activity, and kept the meetings of the Union under surveillance. In its answer filed November 1, 1946, the respondent, in effect, denied all the allegations in the complaint; asserted that the named individuals were laid off because of it shortage of materials, that each of them had recently been offered a similar job with the respondent, expressed the opinion that the Congress did not intend that "full time paid organizers" and "strutting bureaucrats" should interfere with its business ; and announced its intention not to appear at the hearing. Pursuant to notice, a hearing was held in Findlay. Ohio, on November 4, .1946, befoie the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board was represented by counsel and the Union by one of its agents The respondent made no appearance It appearing that counsel for the Board had obtained the issuance of a subpena directed to the respondent requir- ing the production of certain of its records and it appearing that the records sought were material and might be essential to a determination of the matters in issue, the undersigned granted a motion by counsel for the Board, made after a number of witnesses had testified, that the hearing be adjourned until enforce- ment of the subpena could be secured in a United States District Court. There- after, on February 17 and 13, 1947, pursuant to telegraphic notice issued by the undersigned, a further hearing was held in Findlay, Ohio, before the undersigned. The Board and the respondent were represented by counsel ; the Union by one of its agents. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. A motion made by counsel for the Board at the conclusion of the hearing to con- form the pleadings to the proof was granted without objection The undersigned reserved ruling on a motion made by counsel for the respondent to dismiss the complaint in its entirety The motion is hereby denied. Counsel for the Board and the respondent argued on the record and all parties were granted until March 20, 1947, to file briefs or proposed findings of fact and conclusions of law. A brief has been received from the respondent. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Differential Steel Car Company is an Ohio corporation with its place of busi- ness in Findlay, Ohio, where it is engaged in the manufacture and sale of mine cars, air dump cars, and locomotives During 1945, the respondent used raw materials consisting principally of steel, brass, and copper, having a value in excess of $450,000, of which more than 30 percent was received from points out- Namely: Kenneth Judd Vic Eisaman Vernon Harmon Earl Fisher IT. Heldman Howard Peneton Woody McGill Eugene LaRue William Thompson E. Knight Earl Miller George Weber Dow Wilson Orton Hutson 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD side the State of Ohio. During the same period, the respondent shipped finished products having a value in excess of $700,000, of which more than 90 percent was shipped to points outside the State of Ohio The iespondent concedes that it is engaged in commerce within the meaning of the Act II THE ORGANIZATION INVOLVED International Union, United Automobile. Aircraft and Agi icultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership, employees of the respondent. III THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Background The business of the respondent has been conducted in Findlay for a period of 30 years. It appears that at no time during that period have the employees been represented for bargaining purposes and, until the happenings hereinafter described, there is no indication that they had expressed interest in such an arrangement. 1-I. Fort Flowers, president and active managing head of the respondent, testified frankly, "I have always been opposed to Unions in our shop. It is considered that it is not good business for the Company. The kind of work we do is largely research and new types of work. It is not a big production plant, and I have never felt that a Union would be helpful to the Company, and I have never felt that a Union would be helpful to the men " The policy of Flowers is the policy of the respondent. As the respondent's answer clearly states, no other man in the organization is authorized to speak for it in "matters of this kind." In pursuit of this policy of opposition to labor organizations, the respondent followed a practice of inquiring of new applicants for employment concerning their disposition toward, and membership in, unions When Kenneth Judd was hired in October 1944, Superintendent Dwight Myers inquired if he belonged to a union When Judd answered that he once was a member, Myeis observed, "Well we don't need unions here This is one big happy family. This shop gets along very nicely without a union " Eail Fisher, on the occasion of his hiring in September 1945, was asked by Myers if there was a union at Fisher's last place of employment. When informed that there was, Myers went on to say, "We don't need none. We are just one happy family. We have got the best prices, the best money, the best prices here than any place in Findlay. We don't need no union. The scale is better here than in a Union Shop." Myers com- mented in similar vein to Ralph Cooper in October 1945, when the latter was hired. During the summer of 1945, a dispute developed in the plant over hours of employment and in taking a stand opposed to that of the respondent on this question, employee Ferris Railing remaiked to Myers, "I think the thing this Company needs is a Union organization, and one that will stick up for the fel- lows." flyers excitedly exclaimed, "Oh, my, my, we couldn't have that. If we put a union in here, Mr. Flowers would close the shop up." The above findings concerning interrogation of employees with reference to union organization and remarks of respondent's responsible officials concerning unions are predicated upon the convincing and credited testimony of Judd, Fisher, Cooper, and Railing. Myers did not deny the ,remarks attributed to him by Judd, Fisher, and Cooper but explained that they had volunteered to him that they were union members. Myers denied that it was his practice to inquire of new appli- DIFFERENTIAL STEEL CAR COMPANY 723 cants their disposition toward unions but admitted that sometimes such ques- tions were asked. Myers could not recall the conversation with Railing but was cei tam lie did not convey an> threat to close the plant because Flowers had never indicated such a possibility to him Since the complaint does not allege the commission of unfau labor practices prior to July 16, 1946, the above findings will serve only as background against which the subsequent acts of the respond- ent may be appraised 2 Events of July 16. 1946, and following2 On July 16, the Union conducted an organizational meeting in Findlay which wa, attended by about 40 of respondent's then 61 workers, 35 of whom signed Union membership cards designating the Union to represent them in matters of bargaining. A connnittee of 9' was chosen from among those joining the Union with Kenneth Judd as chairman and Woodrow McGill as secretary. Ac- cording to .Judd and Fisher, respondent's welding foreman, Garrett Collingwood, was stationed in a doorway adjacent to the meeting hall when they approached it. Fisher testified that Collnigwood was in a cafe situated next to the meeting place when the meeting ended On the following day, still according to Fisher, while at work in the plant, Collingwood asked, "What are you trying to do here, organize this plant'" According to Earnest Heilman, who also attended the meeting. Collingwood approached him on the clay following that event and asked whete lie had been the night before. When Heilman replied that lie had been at home, Collingwood went on to say that he had once worked for the American Propeller Company in Toledo and that the union there had done him more harm thari good Colhngwood testified that he frequented the neighborhood of the Union's meet- ing place occasionally and that he may have been near there on the night of July 16 He denied that his purpose was to spy on the meeting or that he saw any of the respondent's employees in that vicinity He also denied having any conversation with Heilman concerning unions and asserted that his first knowl- edge that the Union was organizing respondent's employees was gained from it newspaper aiticle published, presumably, some days after the meeting Fie con- ceded that lie had worked foi the American Propeller Company and while there employed had been a member of a union The undersigned is convinced and finds that Judd, Fisher, and Heilman tes- tified truthfully concerning the actions and words of Collingwood. That he asked, on the day following the meeting, if Fisher was trying to organize the plant stands undenied Such a question mist have been predicated upon knowl- edge of Fisher's union activity which had begun only the night before. The remarks attributed to hint by Heilman have a ring of plausibility considered against the respondent's attitude toward unionization. It is found that Colling- wood was it) the vicinity of the Union meeting place on the night of July 16 and that he saw the employees iiiriving for the meeting The undersigned is not convinced and therefore does not find that Collingwood was there for purposes of surveillance 2 Except wheie otherwise indicated. all events heieinafter related occurred in 1946 "The committee consisted of : Kenneth Judd Orion Hutson Robert Dymond Fail l"itiher Grover G nlcCartne' Woodrow W DlcGill Rich.ud L Kulilnian Lee Russell Dow 0 Wilson 7 6 6972-4 8-vol 75-47 724 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD About July 25, Vice-President Houck accosted Ralph Cooper as he was working in the paint shop and said, "I hear some of the fellows have signed Union cards." Cooper replied, "I don't talk. What does it make any difference? You are paying top wages anyway." Houck answered, "The Company has run for 25 years without a Union," went on to say that he did not see why the employees should pay Union dues, and asked Cooper why the workers were joining the Union." A few weeks later, on about August 10, in discussing a question con- cerning the Union with Ferris Railing, Houck remarked, "We don't want them coming in here and telling us hou; to run our business About the middle of August, another of respondent's foremen,° Harrison Dulaney, accosted Ernest Heilman in the plant yard, saying, "I hear they are trying to get this place or- ganized," and inquiring, "Do you know anything about it?" Heilman professed ignorance whereupon Dulaney went on to say that in his opinion a union would not serve the employees well at the respondent's plant although such organiza- tions might be desirable in a larger shop where assembly line production was practiced ' Counsel for the Board contends that the remarks of Collingwood, Houck, and Dulaney constituted such interference, restraint, and coercion in their impact upon the employees as the Act proscribes. Of course this is so to the extent that the remarks constituted, as some of them did, inquiries as to the individual em- ployee's Union activity or his knowledge about the progress of organization 8 and it is so found It is further found that the totality of the remarks outlined above occurring against the background of respondent's policy of opposition to labor organizations and contemporaneously with the respondent's discrimination in regard to hire and tenure of employment and unlawful refusal to bargain, both of which are hereinafter related and found, constituted unlawful inter- ference with the rights of the employees under Section 7 of the Act and that the respondent, by the utterances of Collingwood, Houck, and Dulaney violated Section 8 (1) of the Act° B. The refusal to bargain I The appropriate unit and representation by the Union of a majority therein Respondent's operations are conducted at two points in Findlay, separated by a distance of about one-half mile, known as the North Plant and the South Plant. During July 1946, from 40 to 45 of the 61 employees worked at the South Plant in finishing and assembling the products while remainder, at the North Plant, performed most of the machine and precision work. The opera- tions of the two plants are integrated with work progressing from one location to the other. The employees at the North Plant worked under the superin- tendency of Robert Henry assisted by a foreman, while those at the South Plant were supervised by Superintendent Myers assisted by Foremen Collingwood, 4 Undenied and credited testimony of Ralph Cooper. 6 Undenied and credited testimony of Ferris Railing. ° Houck testified, and it is found, that all foremen possess authority to recommend hire, discharge, and wage changes. Undenied and credited testimony of Heilman. See Matter of H J. Heinz Company, 10 N. L. R. B. 963, 969, 970, 971, enforced 110 F. (2d), 843, and affirmed 311 U S. 514. ° N. L. R B. v. Virginia Electric & Power Co., 314 U. S. 469, 477; N. L. R. B. v. Caroline Mills, 1,58 F (2d) 793 (C. C. A. 5), cited by the respondent is distinguishable. In that case the commission of unfair labor practices was alleged upon the basis of the employer's statements unaccompanied by threat or exercise of economic reprisal. DIFFERENTIAL STEEL CAR COMPANY 725 Dulaney, and Joe Burnett. Although interchange of employees between the plants is practical, transfers are infrequent. Employees are expected and re- quired to work wherever needed ; few, if any, have permanent assignments, and there is no policy of seniority. The complaint alleges that all production and maintenance employees, excluding clerical employees and supervisory employees, constitute an appropriate unit. This allegation is denied in the respondent's answer but no evidence was offered in support of the respondent's position. A unit of production and maintenance employees is a traditional and feasible grouping and considering that such employees of the respondent appear to work under similar conditions, are not divided by skills, and are under the same gen- eral supervision, the undersigned finds that all production and maintenance em- ployees of the respondent working at the North and South Plants, excluding clerical employees and supervisory employees, at all times material herein con- stituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On July 16, at the first organizational meeting of the employees, 35 of the then 61 workers in the unit signed applications for membership designating the Union to represent them in matters of bargaining - Five additional employees signed similar cards on July 17 and 19 so that on the latter date the Union represented 40 employees. On July 19, 17 workers were laid off reducing the unit to 44 'oorkers. Among those laid off were 16 who had designated the Union. Thus on July 19, the Union represented 24, a clear majority 30 of the remaining 44 workers for bargaining purposes and was on that date, and now is, the under- signed finds, the exclusive representative of the employees in the appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment within the meaning of Section 9 (a) of the Act. 2. The refusal to bargain On July 19, in a letter to the respondent which is attached hereto as Appendix A, the Union announced that it bad been designated by a majority of the em- ployees as their representative for purposes of bargaining, requested recognition, and sought an opportunity to negotiate. The letter went on to say that a failure to recognize and negotiate would constitute a violation of the Act concerning which a charge might be filed and, further, that in the event the respondent failed or refused to comply with the Union's request, a petition for certification would be filed with the Board. This letter was received by the respondent, the under- signed finds , on July 20 It was not answered On July 22, Ralph Brown, the representative of the Union who signed the letter, telephoned Flowers and, after identifying himself, again asserted the Union's claim of majority and attempted to arrange an appointment to discuss the lay-off of employees which had occurred on July 19, as well as the general question of the Union's representative status. With the remark that he considered it none of Brown's business, Flowers ter- minated the conversation. Flowers admitted that he had received this call on or about July 22 ; asserted that he "had some difficulty in understanding who Mr. Brown was" ; and testified that he had replied, "I don't think that's any of your business and I would prefer not to talk about it." Flowers cauld not recall that Brown expressed a desire to discuss anything but the lay-off. The under- 30 The respondent's contention that the Union then represented only 20 out of 46 employees is not supported by the record. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed finds that on July 22 the Union through Brown again requested a con- ference with the respondent for the purpose of securing recognition and that the respondent refused the request. On July 24 the Union filed a petition for investigation and certification of representatives with the Board and withdrew it without prejudice on or about September 10. On that date, the Union indited another letter to the respondent, reminding it of its earlier claims of majority and request for recognition and reiterating a request that the respondent meet for purposes of negotiation This letter, like the first, was ignored. Upon these facts counsel for the Board premises his contention that the re- spondent has unlawfully refused to bargain Counsel for the respondent contends both in argument and in brief that the Union never made a "clear cut" request for recognition, never uttered to piote its claimed majority; and that the letter of July 19 was little, if any, more than notice to the respondent that failure to recognize would cause the Union to file a petition The respondent contends that this step was the appropiiate one to take and that no obligation to meet with or bargain with the Union existed until its majority status was established by the conduct of an election. It is true that an employer may request ieasonable proof that a union repre- sents a majority of its employees and in the absence of such proof it need not bargain if it in good faith doubts the union's majority. It is also true that an employer whose boise fides are not questioned may reasonably insist that a union prove its majority through the conduct of an election before extending. recognition " The undersigned is not convinced upon all the evidence, however, that the respondent entertained any real doubt as to the Union's majority status Had it done so, it would have at least afforded the Union opportunity to prove its claim.' Instead it chose not only to ignore the Union's letter of duly 19 but further to refuse audience to the Union's representative on July 22. By so doing the respondent has not evinced an attitude of one seeking only to learn the facts but rather of one unwilling to accord to its employees the night to representation which the Act guarantees r Even before the demand for recognition was made, the respondent, as will subsequently be found, weakened the Union's majority by a discriminatory lay-off, and by the violations of Sec- tion 8 (1) of the Act hereinbefore related intertered with, restrained. and coerced its employees in the exercise of their rights under Section 7 of the Act. The undersigned finds that the respondent at no time intended in good faith to bargain with the majority representative of its employees and, on the contrary, was determined to avoid that duty The undersigned further finds that the respondent retused to bargain with the Union on July 20 and thereafter and, since its refusal was bottomed not upon a reasonable doubt as to the Union's status but rather upon the respondent's intiansigeant opposition to having its employees avail themselves of their rights under Section 7, the re- fusal was in violation of Section 8 (5) of the Act14 11 Aratter of Clem D Johnston, d/b/a Roanoke Public Warehouse, 72 N L R P. 1281 12N L. R B v. Remington Rand, lnc, 94 F (2d) 862, 869 (C C A 2) "There is evidence that United Construction workers, affiliated with United Mine Work- eis of America, on July 19 passed out leaflets to employees at respondents gate 'I'heie is no evidence that any of iespondents employees became members of that oiganization and it is clear that it made no claim of anv nature to the respondent 'rhe undersigned finds that the respondent had no reason to believe, and did not believe, that United Construction workers claimed to represent any of the employees 11 See N L R B. v Piqua Munising Wood Products Co , 109 F (2d) 552 (C C A 6), and N L R B v Texas mining and Smelting Co , 117 F (2d) 86 (C C. A 5) DIFFERENTIAL STEEL CAR COMPANY C. The diserroiunatory lay-off 727 On July 10 it became apparent that the respondent's attempts to secure steel would not be fruitful and that its operations faced curtailment because of this circumstance Accordingly, on July 17, determination having been made that, the working force must be lessened, Houck and Myers selected 15 men for lay-off. On July 18, Flowers having added the names of Wilson and McGill to the list, 17 employees were notified of their lay-off effective at the close of business July 19, by means of letters in the following form. DEAR Six : Due to shortage of materials caused by the recent strikes in the steel industry and industries supplying materials to steel mills it is re- gretted that it now becomes necessary to reduce the working force This letter is to advise you that you will be laid off effective Friday evening, July 19th, at 5. 00 p. in On account of the uncertainty of the present situation this lay off must be for an indefinite period In addition to your regular pay for the week ending July 19th, you will be given an additional check representing pay for one extra week's work at your basic rate This extra check and the check for the present week will be mailed to your home address, Friday, July 25th, 1946. Yours truly, (Signed) H. FoRT FLou Eiis. Presmdent. Fifteen of those laid off had on or before July 17 designated the Union to repre- sent them ; Harmon took such action on July 19 ; Leonard Flick, not named in the complaint, never signed a Union card According to Earl Fisher, one of those laid off, at about 4: 30 p in on July 19, while checking in his tools, he saw Myers and Houck in conversation in the former's office and heard Myers "tell Houck he was getting rid of them fellows for the good of the Company, and lie called them a bunch of agitators And he looked up through the glass, and seen me, and that was the end of the con- versation " Myers testified that he frequently held conversations with Houck in that office, could not recall seeing Fisher outside the door of the office, denied that he made the statement to Houck which Fisher attributed to him, and as- serted that he had conducted a test which satisfied him that a conversation in his office would not be audible to anyone in the toolroom Houck denied that Myers had spoken as Fishei testified and asserted that he too had conducted a test with respect to the possibility of conversations in Myers' office being over- heard by persons in the toolroom by stationing himself there while Myers talked in it loud voice in Myers' office. According to Houck, Myers' voice was audible but his words were not distinguishable At the invitation of the re- spondent and with the consent of'the pasties, the undersigned visited the prem- i50S tin the purpose of determining the possibility of Fisher over hearing a con- i ersatiou occurring tit Myers' office. The visit took place at about 6: 15 p in on Febinary 24, 1947, at a tittle when the plant, not being in operation, was quiet. Under these circumstances, a conversation in ordinary tones in Myers' office was clearly audible and understandable to the undersigned stationed in the toolroom at the point where Fisher allegedly was situated Whether actually the conversation alleged to have taken place between Myers and Houck at a time when the plant was in operation was overheard by Fisher turns on a question of credibility The undersigned is convinced, and finds, that Fisher testified truthfully. In view of respondent's opposition to labor or- ganizations, a position which Myers and Houck appear fully to have shared, it is not improbable that Myers would refer to the Union members as agitators 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that he would regard their separation from the pay roll as a salutary de- velopment Counsel for the Board contends that the lay-off of July 19 was motivated by the Union's organizational campaign and that by means of the lay-off, the re- spondent discriminated in regard to the hire and tenure of those named in the complaint because of their membership in and activity on behalf of the Union. The record convinces the undersigned however that the lay-off was dictated by respondent's need to lessen its working force due to its inability to secure steel. This conclusion is buttressed by the fact that those laid off were not replaced and, at the time of the hearing, the respondent had hired only one new employee to do work which had been performed by those who were laid off.16 He further contends, however, that in any event, the respondent used a discrim- inatory method in selecting those to be laid off and that absent such discrinii- nation, some, at least, of those named in the complaint would have retained their employment The respondent asserts that it selected for lay-off those of its employees who were least suited to perform the work which remained to be done 1° and included among them those whose records for attendance were unfavorable. Seniority, allegedly, was not taken into account although Houck testified that seniority might be a factor "a11 other things being equal." No evidence was offered to indicate the qualifications of those laid off in contrast with those who were re- tained or with respect to attendance records. Thompson and Wilson had been employed for nearly 3 years and were senior in point of service to all but 5 of the employees retained. On the other hand, Harmon who did not join the Union until after receiving his lay-off notice, had been employed for more than 6 years. Others among those laid off had been employed for periods ranging from 3 to 20 months Two of those retained had less than a month's service; another less than 2 months, and many of them had worked less than a year The ratio of 15 Union to 2 non-Union members among those laid off becomes more im- pressive upon closer examination. On the date the lay-off notices were dis- tributed, 39 of 61, or 64 percent of the employees had designated the Union. The lay-off reduced this percentage to 54.5. Also in contrast to the percentage of employees who had designated the Union, 88 percent of those who were laid off had done so. Again, although only 28 percent of the respondent' s comple- ment of workers was laid off, 6 of the 9 Union committee members, or 55 per- cent, were terminated. Finally, only 2 of the 22 who had not designated the Union, or 9 percent, were selected for lay-off The disproportion in selection resulting in the lay-off of 38 percent of the employees who were Union members and only 9 percent of those who were not, a ratio in excess or 4 to 1, is notable. The respondent contends that when the lay-off letters were prepared, it had no knowledge that any of its employees had joined the Union. It has been found that Foreman Collingwood saw the employees arriving for the meeting of July 16, and questioned two of them concerning the meeting on the following day. In view of the respondent's desire that its employees not be represented and its curiosity as evidenced by the questions asked by Houck, 1\1yers, Dulaney, and '-Of the 8 individuals placed on respondent's pay roll subsequent to, July 19, 3 we] e veterans with reemployment rights, 2, Harmon and Flick, were anion gthose laid off on Juli 19, one was an employee returning from sick leave, one was a replacement for a janitor not involved in the lay-off, and the last replaced Harmon when the latter left his employment on November 4 16 The evidence is that only the quantity of «oik was affected by the steel shortage , thus the operations continued but on a i educed scale DIFFERENTIAL STEEL CAR COMPANY 729 Collingwood concerning the employees' disposition toward labor unions, the undersigned is convinced, and finds, that Collingwood, knowing that the fact that its employees were attending a Union meeting would be of interest to the re- spondent, made a report to the respondent naming those he saw on that oc- casion." It is clear that the respondent did not recognize seniority as vesting in the em- ployees any right with respect to lay-offs. Aside from this policy, however, it must be realized that long service is in itself an indication that an employee has performed satisfactorily and gives basis to a conclusion that the more senior workers would ordinarily be among the last to be laid off. As has been said, the record is barren of ei idence that those laid off were less desirable workers than those retained except for the general statement that those retained were best suited for the work remaining to be done. Considering the disproportionate number of Union members who were terminated ; that workers with more than 3 years' service were let go in preference to some who had worked much shorter periods ; and that Myers remarked to Houck that he was getting rid of some "agitators," viewed against the respondent's opposition to unionization, the undersigned is convinced and finds that the respondent used a discriminatory standard in selecting employees for lay-off and that the respondent thereby violated Section 8 (1) and (3) of the Act. However, this finding is not neces- sarily applicable to all those named in the complaint except to the extent that they constituted a part of the entire group of Union employees which, as a group, was discriminated against. Having found economic justification for the lay-off, it is unreasonable to suppose that the necessary reduction in force could have been accomplished without laying off some Union members. It may well be that absent a discriminatory motivation some of those named in the complaint would nonetheless have been terminated. The record affords no reliable basis for determining just who those individuals are. On October 29, the respondent sent letters to all those who were laid off on July 19 reading as follows : DEAR SIR: Reference my letter to you of July 18th, 1946. Conditions have changed somewhat and we now need a few more men. We would like to give first consideration to our former employees. Accord- ingly we offer you another job similar to the one you had. If you accept please report for work S :00 a in , November 1, 1946. Yours truly (Signed) H. Fort Flowers H. FORT FLOWERS, President. Flowers testified that the letters were mailed in anticipation of receipt of steel in early December and that with this in mind, he believed that he could find work for all those laid off in preparing the plant for increased production. Houck testified that the respondent intended to offer the men work on jobs as similar as conditions would permit to those from which they were laid off on July 19 and that although the respondent needed only 8 or 10 men, work would have been found for all who accepted the offer. Of those named in the complaint, only Harmon. Judd, and Fisher reported to the plant. Harmon worked the morning of November 4 in siding a barn on the plant premises, presumably at the same rate of pay he had received on July 19, but quit his employment at noon of the ".1ll tho,ic named in the complaint, excepting Harmon and E+isaman, attended the July 16 meeting. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same day. Judd and Fisher i eported to Myers on October 31 to inquire what work was available for them Myers told them that they would be given work in the South plant and perhaps would be required to do some remodeling in the North plant. When asked how long the woik would last, Myers replied that he could give no assurance; that it might last for 3 months or for 1 day '8 Both Judd and Fisher refused the offer. The iemainder of those maned in the complaint either ignored the offer or refused it In the opinion of the undersigned, the offer of October 29 was not one of reinstatement. Those to whom it was directed were not offered the jobs from which they were laid off on July 19 and the letter does not indicate that those who accepted would be granted whatever rights and privileges would attach to continuous employee status. In actual effect, those named in the complaint wen e dischai ged on July 19 and the letter of October 29 was merely an offer to retire It is found that the re- spondent has made no offer of reinstatement to its employees since the lay-off. This has importance only with respect to those who were dascrnunuatouly treated on July 19 and who therefore were entitled by law to reinstatement to their former positions with all their former rights and privileges. IC THE EFFECT OF THE UNFAIR LABOR PRACi'ICLS UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obsti uctmg commerce and the free flow of commerce. V THE REMEDY Having found that the respondent has engaged in and is engaging in unfair Libor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain afhrmative action which the undersigned finds is necessary to effectuate the policies of the Act Since it has been found that the respondent on and after July 20, 1946. unlaw- fully failed and refused to bargain collectively with the Union as the exclusive representative of the employees in the unit heretofoie found appropriate, the undersigned will recommend that the respondent upon request bargain collec- tively with such Union as such exclusive representatne and, in the event that an agreement is reached, embody such agreement in a signed contract Since it has been found that the respondent used a discnmunatony standard of selection in effecting the lay-off of July 19, 1946, it will be recommended that the respondent offer reinstatement to and make whole those who were the subjects of discrimination It may well have been that some of those named in the complaint would have been laid off on July 19 absent discrimination but it was up to the respondent "to disentangle the consequences for which it was responsible from those from which it was immune," n and this the respondent has failed to 'R At one point in his examination H', ers admitted that he had said lie could not guaran- tee even one day's employment but later' changed his testimony to say that he had expressed the opinion that the work would be steady His earlier testimony is accepted 19 N L R. B v Remington Rand, Inc (C C A 2), 94 F (2c1) 862, cert. den 304 U 8 576. DIFFERENTIAL STEEL CAI3 COMPANY 731 do.20 Since the ideal remedy, naming those to be made whole and offered rein- statement, caimot here be ieconmmended with the preciseness which is desirable, resort must be taken to some practicable device which will reasonably assure in equitable disposition of this problem Had the respondent been unmindful of the Union affiliation and activity of its employees, it is probable that the per- centage of Union and non-Union members among those laid off would have been at least approximately the saute as those percentages existing among the body of the employees Thus, conceding the necessity foi a lay-off, 64 percent of the 17 employees affected would have been Union niennbers, 36 percent would not have been. Translating these percentages into numbers of employees, the lay-oft of July 19 should have separated from their employment only 11 of those who had designated the Union. It, follows that 4 of the Union members who were land oft would have retained their employment in the absence of discrimination.'i The under signed has found that the respondent discriminated against the Union employees as a group in selecting individuals for lay-off and allusion has been made to the fact that the record affords no basis for determining precisely which of the Union members suffered by reason of that disciiniination It is necessary, therefore, to remedy as exactly as possible the unfair labor practice in this respect both with reference to the Union employees as a group and as individuals This can be accomplished only by requiring the respondent, in effect, to turn back the clock to July 18, 1946, and then to proceed to accomplish the necessary reduction in its force on a non-discriminatory basis. The undersigned recommends that in order to remedy the effects of the respondent's unfair labor practices with rela- tion to the entire group of Union employees, it be required to select from a list of such employees as of July 1S, 1946, which is attached hereto as Appendix B, 11 for lay-off in accordance with its usual method in reducing force without dis- crunuuition against any individual because of his Union affiliation or activity, following a system of seniority to such an extent as has heretofore been applied in the conduct of its business From a list of employees who were not members of the Union as of that date, which is attached hereto as Appendix C, the under- signed recommends that the respondent select 6 for lay-off in accordance with the same standard The necessary result of this selection will be that 4 less Union members will be affected by the lay-off and the ratio of union to non-union employees will be restored. It is further recommended with respect to any of 20 See N L R B. v. Chicago Steel Foundry Company, 142 F (2d) 306 (C. C A 7) where the Count said Put the disproportionate tieatnient of union and non-union workers may be very persuasive evidence of discri nuiation . and may create an inference of discrimina- tion leaving it to an emplover to give an adequate explanation of the discharge or lay-off. . . . 2' In Matter of F W Woolworth Company, 25 N L R B 1362, 1373, enforced as modified, 121 F (2d) 65S, the Board stated. It would be expected that in a selection of employees to be laid off without regard to union affiliation the proportion of union members among those laid off would ap- pioxinmte the proportion existing in the group from which the selection was made The natural assumption would be that in any selection to which the factor of union affiliation was irrelevant, union membership would be distributed among those laid oft and those retained as it by opeiation of chance Of course any combination is it possible result on the basis of pule chance Variation from the expected does not necessarily establish that the opeiation of chance has been tiustrated by intelligent selection When, howetei, the variation is marked, or is manitested consistently in i epeatr',d s implings, the livtothesis that union membership was irrelevant to the selec- tion gives way to the infcu nee that the selection was made on a discriminatory basis. 732 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD those named in the complaint who are not selected for lay-off by application of the non-discriminatory standards outlined, that the respondent offer to each such, immediate and full reinstatement to his former or substantially equivalent posi- tion a as of July 19, 1946, without prejudice to his seniority or other rights and privileges he may have enjoyed and that the respondent make each whole for any loss of earnings he may have sustained by reason of the discrimination against him by payment to each of a sum of money equal to that which each would have earned as wages from July 19, 1946, to the date of the offer of reinstatement less his net earnings ' during that period. The undersigned recognizes that this remedy may be only an approximation of justice; that a greater or lesser number of Union members may have been the subjects of discrimination It is, however, in his opinion, the most practicable and at the same time the most precise and equitable method of dissipating the effect of the unfair labor practices found and is neces- sary to effectuate the policies of the Act.21 It is recommended that the Board expressly reserve the right to modify the back-pay and reinstatement provisions if made necessary by a change of conditions, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a particular set of circumstances not now appearing By refusing to bargain with the Union, by using an unlawful standard in se- lecting its employees for lay-off, and by the other violations of Section 8 (1) of the Act herein detailed, the respondent has disclosed a purpose to defeat self-organization among its employees. The undersigned is convinced that the unfair labor practices found indicate a danger that the commission of unfair, labor practices in the future is to be anticipated from the respondent's conduct in the past. In order that the preventive purposes of the Act not be thwarted and that the interdependent guarantees of Section 7 of the Act not be rendered ineffective, the undersigned will recommend that the respondent be ordered to cease and desist from engaging in the practices above found and, in addition, to cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exercise of their statutory rights. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, affiliated with the Congress of Industiial Oiganiza- tions, is a labor organization within the meaning of Section 2 (5) of the Act. 22 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position " See Matter of Chase National Bank of the City of New Pork, San Juan, Puerto Rico, Branch, 65 N L. R B 827 23 See Matter of Crossett Lumber Co , 8 N L R. B 440, 497-98. 24 See F. W Woolworth Company v. N. L. R. B., 121 F. (2d) 658, where at page 663. the Court stated : In thus striving to restore the status quo, the Board was foiced to use hypothesis and assumption instead of proven fact. But its order is not invalid on that account ; for the petitioner by its unlawful conduct, has made it impossible to do mote than approximate the conditions which would have prevailed in the absence of discrimina- tion 21 See Matter of Toledo Desk & Fixt ui e Company, 65 N L. R B 1086, 1109-10, enforced 158 F. (2d) 426. DIFFERENTIAL STEEL CAR COMPANY 733 2. All production and maintenance employees of the respondent working at the North and South plants excluding clerical employees and supervisory em- ployees with authority to hire, promote , discharge , discipline, or otherwise effect changes in the status of employees or effectively recommend such action , consti- tute, and at all times material herein have constituted , a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act. - 3 International Union, United Automobile , Aircraft and Agricultural Im- plement Workers of America, CIO, was on July 20, 1946, and at all times there- after has been, the exclusive representative of all the employees in the above- described appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on and after July 20, 1946 , to bargain with the Union, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( 5) of the Act. 5. By discriminatorily selecting employees for lay-off effective July 19, 1946, the respondent violated and is violating Section 8 ( 3) of the Act. 6. 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 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting cony merce within the meaning of Section 2 (6) and ( 7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, the undersigned recommends that the respondent, Differential Steel Car Company, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, CIO, as the exclusive representative of the employees in the unit herein found to be appropriate ; (b) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, or in any other labor organization of its employees, by employing a discriminatory standard in selecting employees for lay-off, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and' Agricultural Implement Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America. as the 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of all production and maintenance employees kvoiking at the North and South plants excluding clerical employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, in respect to rates of pay, wages, hours of employment, and other terms or conch- tions of employment, and if an understanding is reached. embody such understanding in a signed writing; (b) After selecting employees for lay-off as of July 19, 1946, in the manner outlined herein in the section entitled "The remedy," offer to those individuals named in the complaint who are not reached for lay-off as of July 18, 1946, by the application of non-discriminatory standards, immediate and full reinstate- ment to their former or substantially equivalent positions and make them whole in the manner outlined in the section herein entitled "The remedy;" (c) Post at the North and South plant in Findlay, Ohio, copies of the notice attached to this Intermediate Report marked "Appendix D " Copies of said no- tice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the iespo dent's representative, be posted by the respond- ent immediately upon receipt thereof and maintained by it for sixty (60) con- secutive days thereafter in conspicuous places including all places where notices to employees customarily are posted Reasonable steps shall be taken by tine respondent to insure that said notices are not altered, defaced, or covered by other material ; (d) Notify the Regional Director for the Eighth Region (Cleveland, Ohio) in writing within ten (10) clays from the date of receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that. unless on or before ten (10) clays from receipt of this Intermediate Report the respondent notifies the said Regional Director in writing that it will comply with the above recommendations, the National Labor Relations Boaud issue an order requiring the Respondent to take the action aforesaid As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochannbean Building, Washing- ton 25, D. C, an original and four copies of a slatenieit in writing setting foith such exceptions to the Intermediate Report or to any pant of the record or proceeding (including rulings upon all motions or objections) as lie relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief ill support of the Intermediate Report Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65 As further provided in said Section 20339, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board WALLACE E ROISTER, Trial Eramiiier. Dated April 15, 1947. a DIFFERENTIAL STEEL CAR COMPANY 735 APPENDIX A Differential Steel Car Company Corner No. Main & Differential Ave. Findlay, Ohio Attention : President Gentlemen. Please be advised that the majority of the employees in the Differential Steel Car Company have designated the International Union, United Automobile, Air- cral t and Agricultural Implement Workers of America, as the exclusive represent- ative of all such employees for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment to become effective following the expiration of the contract now in existence between you and another organization, and applicable to such employees. It is the desire of the Union to institute negotiations with you in respect to rates of pay, wages, hours of employ meat and other conditions of employment, covering a period following the expiration of the existing contract. To this end we request that you indicate to us whether you will recognize the Union as such exclusive representative, and negotiate accordingly. No other person or organization now represents a majority of such employees, and you are hereby cautioned against entering into any contract, or any renewal of any of the provisions of any existing contract, or any collective bargaining or negotiating with any other person or organization presuming to act as agent for. or in behalf of any such employees You are further advised that in the event you shall fail or refuse to comply with out request, or shall recognize or deal with any other person or organization as representing such employees, ww ith respect to rates of pay, wages, hours of employment or other conditions of employment or any period following the expiration of the existing contract, such conduct on your part will constitute a violation of the provisions of the National Labor Relations Act, for which charges may be filed by us with the National Labor Relations Board And you are finally advised that in the event you fail or refuse to comply with our request, we propose to file petition with the National Labor Relations Board asking certification of our Union as the exclusive bargaining agent for such employees. An immediate reply will be appreciated. Very truly yours, RALPH BROWN , Int'l Rep. Region 2B, UATV 010 ajk CC : R Gosser, M. Schultz, P. Herzog, NLRB Al. S Ryder, NLRB Wage Stabilization Board CIO Jurisdictional Board a 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B Earl Woodruff Arthur Clouser Woodrow McGill Glen G. Vogelsong Richard L. Bundy Eugene W. LaRue Robert Stahl George D Buchanan Elmer I . Knight Virgil H. Smith Don Bish Kenneth W. Judd Lee Russell Deron R Zender Harvey Heldman Wayne M Miller C. L. Zeigler Earl Fisher George McCartney Lovell Smith George W. Weber Richard Louis Kuhlman Roland V. Schubert Howard E Peneton Earnest Heilman Ferris T. Railing Orton Hutson Robert C. Foltz Walter Bishop Vic Eisaman Robert D. Evans William Thompson Lloyd R McKee Robert Dymond Earl A. Miller Wayne E Gibson Ralph Cooper Dow 0. Wilson Jack W. Ammerman APPENDIX C' Millard Swope Leonard Flick L. E. Kirkendall Mervin Bushey Thomas Flick Berl U Lambert Vernon Harmon Paul Flickinger Joe Park Carl Bohn Daniel F. Flowers John Russell Joe DeHays Fred F. Flowers H. E. Snook William Eatherton Harvey Fox William Stewart William Egts Fred Wildman Waldo Eisaman Norman Jacobs APPENDIX D NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 in any manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, 010, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. WE WILL OFFER to the employees discriminated against by means of the lay-off of July 19, 1946 , immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. WE WILL BARGAIN collectively upon request with the above-named union 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 : I Some named in this list joined the Union subsequent to July 18. 0 DIFFERENTIAL STEEL CAR COMPANY 737 All production and maintenance employees working at the North and South plants excluding clerical employees and supervisory employees with authority to hire, promote , discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. Dated------ ------------- DIFFERENTIAL STEEL CAR COMPANY, 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.