Andrews Co.

In the Matter of ISAAC ANDREWS, SARAH ANDREWS, MARY E. ANDREWS, MARTHA W. ANDREWS, A. J. R. HELMUS, AND H. O. CODDINGTON, D/B/A ANDREWS COMPANY and AMERICAN FEDERATION OF LABOR Case No. 10-CA-201.-Decided December 6,1919 DECISION AND ORDER On February 21, 1949, Trial Examiner William E. Spencer 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. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations. There- after, the Respondent filed. exceptions to the Intermediate Report and a supporting brief. 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, a.nd hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as they are inconsistent herewith. 1. The Respondent excepts to the Trial Examiner's finding that its ;.refusal to bargain with the Union constituted a violation of Section 8 (a) (5) of the Act. This exception is based upon the Union's failure to comply with the filing requirements of Section 9 (f), (g), and (h) of the Act at the time of its request for recognition. Absent this ele- ment of noncompliance, we would, like our dissenting colleagues, affirm the Trial Examiner's finding of the 8 (a) (5) violation.' However, i As set forth in the Intermediate Report, on October 13 , 1947, the union organizer addressed a letter to the Respondent, stating that the Respondent's employees had desig- nated the Union as their exclusive representative and requesting that the Respondent recognize and bargain with the Union. The Union, although duly designated by a majority of the employees in an appropriate unit , was not then in compliance . The Respondent did not answer the letter , but embarked instead on what we all find was a campaign of unfair labor practices. On November 7, 1947, the Union affected full compliance, but did not renew its request for recognition . Three days later , the Respondent, without con- sulting the Union , unilaterially put into effect a new bonus plan. 87 NLRB No. 62. 379 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the circumstances of this case, and for the reasons hereinafter stated, we believe that the 8 (a) (5) allegations in the complaint must be dismissed. Congress enacted the National Labor Relations Act in 1935 with the expressed intent to prevent industrial strife and promote industrial peace. It gained that objective by creating rights and privileges for employees and labor organizations and this restoring equality of bargaining power between employers and employees. Among the privileges so created was the right of a labor organization to be the ex- clusive bargaining representative. As a necessary corollary of that privilege Section 8 (5) of the Act imposed a duty on the employer to bargain with such exclusive agent of its employees. The obligation so imposed being exclusive, it exacted a negative duty to treat with no other Union.2 Thus, under the Wagner Act, an employer was required to bargain and if he refused, he did so at his peril. After 12 years of experience under the Wagner Act, Congress amended that statute. In order to eliminate "certain practices by some labor organizations, their officers, and members" which "have the intent or the necessary effect of burdening or obstructing com- merce," Congress imposed certain limitations on the Board's admin- istrative functions and also on the statutory rights or privileges of labor organizations which failed to satisfy the filing requirements set forth in the Act in Section 9 (f), (g), and (h). 9 (f) reads : ... No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this sec- tion, no petition under Section 9 (e) (1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under sub-section (b) of section 10, un- less .. 3 9 (g) reads: ... No labor organization shall be eligible for certification under this section as the representative of any employees, no petition under section 9 (e) (1) shall be entertained, and no complaint shall issue under section 10 with respect to a charge filed by a labor organization unless .. . Thus the Board, in dealing with a noncomplying union, is forbidden to take the following steps : (a) it may not investigate a question con- 2 Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678, 683; N. L. R. B. v. Jones cE Laughlin Steel Corporation, 301 U. S. 1, 44. s Section 9 (h), relating to filing affidavits , reads the same as Section 9 (f) in this respect. ANDREWS COMPANY 381 cerning the representation of employees or certify the union as the statutory bargaining representative; (b) it may not entertain the organization's petition under Section 9 (e) (1) for a union-shop election; and, finally, (c) it may not issue a complaint pursuant to a charge filed by the organization. Examination of this Section clearly shows that by its enactment, Congress was directing its legislative powers towards the rights and privileges of labor organizations as opposed to the rights and privileges of individual employees.4 Sec- tion 9 (f) was designed to curb undemocratic practices which existed in some labor organizations. By Section 9 (h) Congress hoped to purge Communists from the labor movement .5 Unlike the Wagner Act, which gave unqualified protection to labor organizations, the amended Act thus prescribes certain standards which Congress con- sidered necessary in the public interest, peace, and welfare. To assert, as do our dissenting colleagues, that these standards should be met only when it becomes necessary for a labor organization to resort to the Board is, in our opinion, a perversion of legislative intent. While the Act's legislative history is not dispositive of legislative intent, we feel free to take judicial notice of the inherent threat that Commu- nism and other undemocratic doctrines and practices are to the labor movement in this country. In theMashall and Bruce case,6 a majority of the Board stated: ... We are convinced that Section 9 (f), (g), and (h) not only provide procedural limitations upon the Board's power to act with respect to cases arising after the effective date of the amend- ment, but also embody a public policy denying utilization of the Board's processes directly to aid the bargaining position of a labor organization which has failed to comply with the foregoing sections. We feel bound by that decision. In that case, we decided that the employer was not obligated to bargain with a noncomplying union. Consistency demands the same result in this case. Furthermore, were we to find that the Respondent had violated Section 8 (a) (5) when the union was not in compliance, we would be utilizing the Board's processes to give an aura of respectability to all unions which have failed to comply. We believe that such a result would not effectuate the purposes of the Act. See Augusta Chemical Company, 83 NLRB 53, wherein the Board said that employees who have engaged in union activity in behalf of a noncomplying union are still protected by the Act. 6 93 Cong. Rec , A 1099, 1100, 3955 , 5291, A 3232. O Marshall and Bruce Company, 75 NLRB 90. (Members Houston and Murdock dis- senting. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apart from public policy, however, we believe that the Act itself dictates a dismissal of the 8 (a) (5) charge in this case. The exclusive representative principle is a statutory right unknown at common law. While Congress has not specifically withdrawn that right from non- complying unions, it has withdrawn from noncomplying unions the only method of enforcing the right by forbidding the Board to issue a complaint. Thus, while under the Wagner Act the remedy was unlimited, under the amended Act it is limited by the filing provisions. As we are here dealing with a statute which creates an obligation and at the same time creates a remedy, a limitation on the remedy is to be treated as a limitation on the right itself.? Nor do we believe that the Union's subsequent compliance cured the effects of its noncompliance which existed at the time of its request to bargain. The Act does not state, nor may it be implied, that the Board should give retroactive effect to the Union's compliance. Such an interpretation would permit the circumvention of these provisions, for a noncomplying labor organization could compel recognition by the mere threat of subsequent compliance and the filing of a charge. More- over, we would be giving the noncomplying union the very remedy which Congress specifically denied it. Furthermore, the fundamental purpose of the Act is to encourage and protect the practice and pro- cedure of collective bargaining. Labor organizations which fail to meet the filing requirements remove themselves from the protection of the Act and thus weaken their bargaining position. We do not believe that Congress intended the Board to extend retroactive pro- tection to those organizations, which have thus thwarted an estab- lished public policy. Our dissenting colleagues concede that Congress, by Section 9 (f), (g), and (h), deprived noncomplying unions of access to the Act and the remedies therein provided; however, they ignore the action of Congress and would supply the remedy in this case because the Re- spondent did not contemporaneously specify noncompliance as the basis for its refusal to bargain. In other words, what Congress has specifically denied to a noncomplying union, our dissenting colleagues would supply on the basis of a waiver by the employer. The short and complete answer is that a waiver can never supply the missing statutory requirements. The respondent's good or bad faith is as completely immaterial to the issue as in a case where the employer fails to specify lack of majority as the ground of its refusal to bargain with a union which in fact lacked a majority at that time. Would 7 The Harrisburg, 119 U . S. 199 ; Davis v. Mills, 194 U. S. 451; Western Fuel Company V. Garcia, 257 U. S. 233; Central Vermont R . v. White, 238 U. S . 507; Adams v. Albany, 80 F. Supp . 876, 880. ANDREWS COMPANY 383 our dissenting colleagues consider such contemporaneous failure to specify lack of majority as tantamount to the existence of a majority? Obviously, not ! Accordingly, we find that the Respondent was not legally obligated to bargain with the Union while it was not in compliance with the provisions of Section 9 (f), (g), and (h). Likewise, we find that the November 5 unilateral offer of a wage increase did not constitute a violation of Section 8 (a) (5) as there was no exclusive representative then in existence which the Respondent was obligated to recognize. 2. The Board unanimously affirms the Trial Examiner's finding, to which the Respondent does not except, that President Andrews' threat to close the plant, and the circulation of the November 5 letter, constituted independent violations of Section 8 (a) (1) of the Act. As previously noted, Section 9 (f), (g), and (h) relate to union rights only, thus leaving unaffected the rights created in Section 7 for indi- vidual employees. Accordingly, noncompliance may not be raised as a defense to a charge alleging the violation of Section 8 (a) (1). We also agree with the Trial Examiner's finding that the Respond- ent violated Section 8 (a) (1) by circulating the November 10 ques- tionnaire and by granting the unilateral bonus shortly thereafter. However, in view of our finding that the Respondent was not obligated to recognize the Union because of its noncompliance, the giving of the unilateral wage increase does not constitute a violation of Section 8 (a) (5). 3. The Board unanimously affirms the Trial Examiner's finding that the Respondent did not violate Section 8 (a) (3) in discharging Hol- combe and Brown. We have therefore adopted the Intermediate Report in this respect also. 4. The Board affirms the Trial Examiner's finding that the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act by discriminating in regard to the hire and tenure of employment of those employees whose names are listed in Appendix A, thereby discouraging membership in American Federation of Labor. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, - Isaac Andrews, Sarah Andrews, Mary E. Andrews, Martha W. Andrews, A. J. R. Helmus, and H. O. Coddington, d/b/a Andrews Company, Spartanburg, South Carolina, and its officers, agents, successors, and assigns, shall: 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor, or any other labor organization, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist American Federation of Labor or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer each of the employees listed on Appendix A, who have not already been offered reinstatement, full and immediate reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole each of the employees listed on Appendix A for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of his reinstatement or the Respondent's offer of reinstatement, less his net earnings during that period ; (c) Post at its Spartanburg, South Carolina, plant, copies of the notice attached hereto and marked Appendix A.8 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by the Respondent's representative, be posted by the 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 are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." ANDREWS COMPANY 385. AND IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent discriminatorily discharged Charles H. Holcombe, Jr., and James C. Brown, that the Respondent refused to bargain within the meaning of- Section 8 (a) (5) of the Act, and that the Respondent engaged in surveillance of its employees' union activities. CHAIRMAN HERZOG and MEMBER HOUSTON, dissenting in part : We join in the decision to the extent that it finds a violation of 8 (a) (1) and ( 3). But we would find also that the Respondent un- lawfully refused to bargain. Our colleagues dismiss this portion of the case despite the fact that the union came into compliance within a month after the refusal to bargain and despite the fact that the Respondent, at the time it refused to bargain, did not assign as its excuse the noncompliance status of the union. Its refusal was based on a broad rejection of the collective bargaining principle . Indeed, it was not until it filed exceptions to the Intermediate Report in 1949, more than 16 months after its refusal to bargain , that the Respondent first raised the question of the Union's noncompliance status. Significantly, the Respondent dealt unilater- ally with its employees on wages in November 1947, after the Union came into compliance , at a time when no excuse for evasion of its col- lective bargaining obligation existed. In our view , the policy of Congress which Section 9 (f), (g), and (h) was designed to effectuate could be better fulfilled by finding a refusal to bargain in such circumstances, absent a showing that a respondent in good faith refused to bargain on the contemporaneously stated ground that a union was not in compliance at the time. Such a result would protect employers legitimately seeking to act in further- ance of an important objective of the Act , by calling their employees' attention to the noncompliance status of their representative. It would furnish an incentive to employees to require their representa- tives to comply, because by so doing they could achieve immediate rec- ognition and bargaining, if necessary with the assistance of Board processes which they could then invoke. It would deprive employers, such as the Respondent here, of a cloak behind which to commit unfair labor practices with impunity without troubling to inform their em- ployees of the noncompliance status of their representative. All these desirable objectives are aborted by our colleagues' decision today. We believe that the requirements of Section 9 (f), (g), and (h), that "no complaint shall issue" in behalf of a noncomplying union, are clearly procedural and were so intended by the Congress. They de- 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .prive noncomplying unions of a remedy; they do not provide em- ployers who violate the Act with perpetual immunity .9 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 AMERICAN FEDERA- TION OF LABOR or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any or "all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL OFFER to the employees listed below, who have not already been offered reinstatement, full and immediate reinstate- ment to their former or substantially equivalent positions with- out prejudice to seniority or other rights and privileges previously enjoyed, and will make all employees listed below whole for any loss of pay suffered as a result of the discrimination : James P. Copes Herman H. McLeod Hampton L. Parris Chester E. Dudek Richard Z. Anderson Billy Joe Ivey Wayne Culberson John Williams John W. Etters Land Brockinon L. C. Layton Paul J. Raines Rufus E. Rhinehart Herman N. Poston Thomas M. Hatchette Bobby I. Long Carl Harris Frank Solesbey Leroy Grace James Johnson Dewey Adkins, Jr. Markus L. Ross Carolyn F. Coffey Palmer Johnson William E. Brown Thomas J. Fail Rupert G. Harris o The majority appears concerned that we are giving something to a union which has not complied with the filing requirements of the law. But all we would do is look, prac- tically, at the situation to he remedied by our Order now. That amounts to ordering this employer to fulfill his obligation to bargain with a union which has met those requirements. i ANDREWS COMPANY 387 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. ISAAC ANDREWS, SARAH ANDREWS, MARY E. ANDREWS, MARTHA W. ANDREWS, A. J. R. HELMUS, and H. 0. CODDINGTON, d/b/a ANDREWS C011PANY Employer. By --------------------------------------------------------- (Representative ) ( Title) Dated---------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Frank E. Hamilton, Esq., for the General Counsel. L. W. Perrin, Esq., Spartanburg, S. C., for the Respondent. BMr. Alva Kemp, Charlotte, N. C., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, called respectively the General Counsel and the Board, by the Regional Director of the Tenth Region (Atlanta, Georgia), issued his complaint dated November 1, 1948, against Isaac Andrews, Sarah Andrews, Mary E. Andrews, Martha W. Andrews, A. J. R. Helmus and H. O. Coddington, d/b/a Andrews Company, herein called Respondent, alleging that Respcndent had engaged in and was engaging in certain unfair labor practices affecting commerce within the mean- ing of Section 8 (a), subsections (1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act as amended, (49 Stat. 449 as amended by 61 Stat. 136), herein called the Act. Copies of the complaint, the charge, and a notice of hearing were duly served on Respondent and the Union. With respect to unfair labor practices the complaint alleged in substance that Respondent: 1. Questioned its employees concerning their union affiliation and activities; threatened and warned its employees to refrain from union activities and affiliation ; threatened to close its Spartanburg, South Carolina, plant, if they persisted in their union activities; kept under surveillance union meetings and activities ; offered inducements to its employees to withdraw from or refrain from joining the Union ; 2. Refused to bargain with the Union, the duly constituted bargaining repre- sentative of its employees in an appropriate unit; 3. Discharged two named employees because of their union affiliation and activities; 4. Discharged 27 named employees because they had engaged in a work stop- page and strike caused by Respondent's unfair labor practices. 877359-50-vol. 8 7--2 6 38"8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in its duly filed answer admitted the jurisdictional facts stated in the complaint relating to the nature and scope of its business, but denied that it had engaged in any of the alleged unfair labor practices. Pursuant to notice, a hearing was held on December 1, 2, 3, and 4, 1948, at Spartanburg, South Carolina, before the undersigned Trial Examiner duly desig- nated by the Chief Trial Examiner. All parties were represented, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. After all evidence had been taken, the undersigned granted the General Counsel's motion to conform the pleadings to the proof in formal matters not going to the sub- stance of the issues; denied Respondent's motion to strike all evidence relating to and including union authorization cards which were introduced for the pur- pose of establishing the Union's majority representation; denied Respondent's motion to dismiss the complaint in part, and reserved ruling on its motion to dismiss the complaint in its entirety. This last motion is disposed of by the findings made herein. All parties waived oral argument before the under- signed, and Respondent availed itself of the privilege granted to all parties to file a brief with the undersigned. Upon the entire record in the case and from my observation of the witnesses, and after careful consideration of the brief and the supplement thereto filed ,with me, I, the undersigned Trial Examiner, make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a partnership which maintains its principal office and its bearing .division (its sole operation involved in this proceeding) at Spartanburg, South Carolina, where it is engaged in the manufacture, sale, and distribution of thrust ball bearings and related products. In the conduct of its business at its Spartanburg plant, Respondent during the 12-month period ending August 10, 1948, a representative period of its operations, purchased raw materials consisting principally of steel, brass, and steel balls, of a value in excess of $100,000, approximately 90 percent of which value was in materials purchased outside the State of South Carolina and shipped to its .Spartanburg plant through channels of interstate commerce. During the same period, Respondent manufactured and sold finished products consisting prin- cipally of thrust ball bearings of a value in excess of $250,000, of which approxi- mately 75 percent in value was sold and shipped to purchasers outside of the State of South Carolina. Respondent admits that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED American Federation of Labor, which admits to membership employees of Respondent, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On October 13, 1947, John L. McKinney, an organizer for the American Fed- eration of Labor, addressed a letter to Respondent stating that Respondent's employees had designated the Union as their exclusive bargaining representative, and requesting Respondent to recognize and bargain with it. ANDREWS COMPANY 389 Respondent made no reply to this letter but on the following day assembled the employees in the plant during working hours where they were addressed by Isaac Andrews, a Respondent partner and founder of the business. Andrews appears to have read the letter he had received from McKinney to the em- ployees, and then said he just wanted them to bear his "side of it." He spoke of his efforts in getting the business started, the financial responsibility involved, and then expressed his willingness to talk over with the employees individually or with a representative committee, any grievances they had. Continuing, he said : ,"All we want to do is keep all working together, and I feel that we don't want any outside interests coming in and telling us -how to run the business, since we can work it out ourselves." He then added, "I will not have an outsider telling me how to run this business after fifty (50) years. I will lock it up first." At one point, H. O. Coddington, one of the copartners, interpolated this remark : "If there are any who do have grievances, appoint a committee and let us find out about them." Andrews concluded his talk by saying that he would not have a union shop, that he would "quit first." I It is clear from all the evidence that Andrews' speech was not merely persuasive in character but contained what was in substance a threat that he would close the plant before he would deal with the Union, and that it was so understood by the employees. It was in this respect, at least, coercive and therefore violative of Section 8 (a) (1) of the Act. It is so found. Under date of November 4, 1947, the Regional Director of the Board's Tenth Region notified Respondent by letter that a petition for certification had been filed with that office by the Union, but that no action would be taken on the petition until the Union had complied with all provisions of Section 9 (f), (g), and (h) of the Act.2 Receipt by Respondent of this letter in due course of the malls is acknowledged. On November 5, Respondent addressed a letter to its employees in which it requested them to signify by their signatures at the bottom of the letter whether or not they favored a plan for cutting the working hours without a reduction in pay for the workweek, and a system of bonuses. On or about November 10, Respondent circulated a questionnaire among its employees. Its text follows : Are you in favor of the shorter hours and bonus plan?_____________________ Sign here------------------------------------------------------------- Would you rather be unionized?_______________________________________ Sign here------------------------------------------------------------ Would you rather work on a basis same as is now used by our cotton mill industry, which is forty (40) hours per week?______________________________ Sign here-------------------------7---------------------------------- 'These two communications bearing on the same subject matter are properly treated as consecutive efforts by the Respondent to bypass the Union, to ascertain the identity of those favoring the Union and the strength of the collective effort, and to induce,its employees to abandon the Union by suggesting that the alterna- tive to unionization would be increased benefits. There is both a threat and a promise of benefit implicit in the phrasing of the questionnaire-a threat that unionization would prejudice the employees in the matter of shorter hours and a I These findings are based on what is purported to be a transcript of Andrews' talk taken by one of Respondent's stenographers. It obviously is not a verbatim transcription of Andrews' remarks but does not differ in substantial respects from the testimony on the speech given by witnesses for the General Counsel. 2 The Union later met these requirements. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bonus, correlated with the suggestion that these benefits would ensue if the employees rejected unionization. That both communications represent an adroit but nonetheless unmistakable interrogation of employees to determine their attitudes toward unionization, can hardly be doubted, and in this respect these two communications stand on the same footing as direct questioning or polling of employees concerning their union affiliation which the Board has consistently held to be violative of the Act. For the reasons stated, it is found that the letter of November 5 and the questionnaire circulated on or about November 10, and the solicitation of signatures thereto, constitute a violation of Section 8 (a) (1) of the Act. On the allegation of surveillance, the evidence establishes that Respondent's general shop foreman, George Weest, parked his car on the public square opposite the union, hall while a union meeting was in progress. Where the union hall fronts on a public square, and there are parking places on this square available to the general public and in common use, it does not appear that the mere fact that an official of the Respondent parks his car in one of these places when a union meeting is in progress, establishes a prima facie case of surveillance. In any event, Weest gave a satisfactory and. convincing explanation for his action in parking his car in this particular place at this particular time. The one bit of evidence which would add substance to the allegation I do not credit: namely, the testimony of James G. Brown that the day after Weest parked his car across the street from the union hall, Weest said to Brown that he had seen Brown go up to the union meeting and asked Brown if another employee, Billy Joe Ivey, was a member of the Union. There are other alleged instances of independent 8 (a) (1) violations, but except as they are dealt with in subsection III (C) of this Intermediate Report, I can place no reliance on the testimony supporting them. B. Discrimination 1. Charles H. Holcombe, Jr. and James G. Brown On January 21, 1948, Respondent discharged Charles H. Holcombe , Jr., and on January 30, 1948, Respondent discharged James G. Brown . It is alleged that these discharges were discriminatory within the meaning of Section 8 (a) (3) of the Act. Holcombe was employed by Respondent in October 1946 . He was a bore grinder operator in the bearing division under the supervision of George Weest. He suffered from a sinus condition aggravated by moisture generated by the machine which he operated . On Thursday and Friday afternoons in the week preceding his discharge he was absent from work because of illness, but on both occasions , according to his testimony , he had West's permission to leave the plant.' He did not report back to work until Wednesday of the following week , and did not notify the company that he was not coming in to work. When he reported for work on Wednesday morning, he found his work ' card missing and Weest advised him that he was discharged for being absent from work without reporting. Soon after he was employed by Respondent , Holcombe was absent for a week or longer without notifying Respondent , and when he returned to work he was told by Weest that ordinarily employees absent from work without notifying the company were discharged. Weest testified that this was a long -standing 3 Weest denied that Holcombe's absence on Friday was reported. ANDREWS COMPANY 391 rule and while Holcombe denied knowledge of such a rule, he admitted the warn- ing administered by Weest on this earlier occasion : Q. What did he [Weest] tell you about people who stayed out that long, about their job? A. He said when that happened ordinarily the fellow was out of a job. Weest testified that on this earlier occasion he gave Holcombe another chance because he had not previously been warned about the rule on absences. Holcombe admitted that he had been late on occasion and that once he lost 30 minutes' pay on account of being late. He testified, "after all what's 30 minutes, unless you are going to the `Chair,' or something like that ; then I guess it is a big thing." It is also established in the testimony of A. J. R. Helmus, an official of Respondent, that between October 1947, and the date of the discharge, Holcombe was absent on several occasions. He admitted that he never gave the required notice of his absences. Holcombe lived out of town and had no phone in his own house. There ap- pears to be little doubt that he was ill on the occasion of his last absences, Under all the circumstances, his discharge appears to have been harsh, but that is not the proper concern of the undersigned. He joined the Union in October 1947, but the only evidence that Respondent had knowledge of this is his own testimony, given after some hesitation, that after he had been dis- charged he met Weest as he was leaving the plant, and Weest said: "when he told me he would get rid of us one by one he meant it and that Mr. Andrews meant what he said too. . . ." It will be seen that this testimony dovetails with that given by Brown, the other dischargee. Weest denied that he made the statement thus attributed to him. Weest appeared to be a man of more than average intelligence, and I am unable to believe that he would so openly advise Holcombe, on the occasion of the latter's discharge, that the real cause of his discharge was his union affilia- tion. Holcombe's own demeanor when giving this testimony was hesitant and wavering. I do not credit it. Brown had been employed by Respondent some 2 or 3 years when on January 30, 1948, he was discharged. He was a turret lathe operator in the bearing division under the supervision of George Weest. Weest admitted that until the occasion of his discharge, Brown was "a pretty good worker . . . and pretty agreeable to get along with." The lathe which Brown operated was situated about 15 feet from another lathe, operated by an employee named Hatch or Hatchette. A micrometer was used by both operators and was kept on a shelf between the two machines. On the day that Brown was discharged, Weest reprimanded him for being away from his job. Brown protested that he had been to Hatchette's lathe to get the micrometer which he needed in his work, and how was he going to "mike" the bearings without the mike. According to him, Weest then asked him why he didn't punch his card, and he replied, "If you want my card punched, you punch it yourself." Weest thereupon punched his card and directed him to the office where he was paid off. Weest testified. that there was a rule against leaving machines to talk to fellow ww-orkmen, and loud and unnecessary talking, and that in the week prior to Brown's discharge he had asked Brown "to stop his unnecessary talking to the man next to him." Weest's further testimony follows : During the following week after that, when I would go out in the auto- matic room, lie would be over talking with the man on the next machine. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, I let it go for the whole week. So, on Friday, January the 31st,. I went in the automatic room and Mr. Brown was way over to the other side'of the man and I went up to him and asked him what he was doing, why he was over there talking. He said that he wanted to see what the other man's orders were and I told him that the other man's orders wasn't none of his concern, for him to stay at. his machine. He said, "Well, Hatchette and I work together." I said, "That's all right, but stay at your machine and do your work and let him do his." "Well," he said, "I have to use the micrometers." I said, "That's all right. They are between you, on this shelf, and you don't have to get to the other side of him to use them." "Well," he says, "If you don't like it, ring my card." I said, "I don't want to ring your card. All I want you to do is stay on your machine and stop your talking." "Well," he says, "The Army didn't stop me and the Navy didn't stop me and they can't stop me here," and I said, "All right, if that's the way you feel, shut off your machine and come with me. Get your time." So I took the card and went into the office and gave it to Mr. Brown to get his time. Brown denied that he had been warned by Weest to stay at his machine and stop talking, and denied knowledge of the rule referred to in Weest's testimony. It was established, however, that this rule, dated January 1, 1948, was conspicuously posted in the plant. Brown's own demeanor and testimony demonstrated a bel- ligerent temperament. He gave the following testimony on his conduct following his discharge: I left the office and went back and got my tools together and was coming back to leave out and went to where Mr. Weest was setting up a bolt grinder- and I asked him, "Will you kindly step outside the door with me for just a minute?" He 1Joked up and says, "Why don't you take your firing like a man," and I says to him "Why don't you kindly come outside with me and take your whipping like a man." Brown like Holcombe signed a union card in October 1947. If either of these two employees engaged in union activities other than to attend union meetings, it does not appear herein. Brown testified that on the day following the union meeting, when Weest had his car parked on the square opposite the union hall, Weest told him that he had seen him [Brown] go up to the meeting and asked him if another employee was a member. On the same or another occasion, ac- cording to Brown, Weest said, "I know who are members of the union and I am going to weed you out one at a time until I get you all out." It will be recalled that the Union notified Respondent of its majority representation in October 1947, and that Respondent engaged in certain antiunion conduct shortly there- after. There were no discharges,, however, in the period between October 1947 and February 1948, except in the cases of Brown and Holcombe. Neither is there anything in the way of renewed or increased union activity in January 1948, or any activity at all on the part of Brown and Holcombe, which would explain why Respondent chose this time and these persons for putting into effect its alleged plan to weed out the union members one at a time. I find that Weest made na such statement as that attributed to him by Brown. Convinced as I am that the General Counsel has not proved by a predominance of evidence that Holcombe and Brown were discriminatorily discharged, I shall recommend the dismissal, of the complaint in this respect. 1 ANDREWS COMPANY 393 2. The strike of February 2, 1948,. and discharges resulting therefrom On the morning of February 2, 1948, at 9 a. in. a group of employees, 26 in num- ber, ceased work and stood idly at their machines, some of which had been shut off. After about 20 minutes, on Andrews' instructions, the employees were as- sembled and addressed by Andrews who asked if the employees had a spokesman. No one answered. Andrews made several attempts to find out the cause of the work stoppage, without success. He then told the employees that he would give them 15 minutes to go back to their machines, that they could either then return to work or call at the office for their pay.4 The 26 employees who had ceased work then left the plant. At a union meeting later that day it was agreed that all the employees who had left their jobs would report back for work the following morning. A letter was addressed to Respondent, bearing the signatures of the, 26 employees who had engaged in the work stoppage, and 1 additional employee who was not.present at the plant at the time of the stoppage but who had joined with the strikers, which stated : The employees listed below have called off the strike, and request to be, reinstated to his or her job. We will report for work February 3, 1948 at 7:00 A. M. On the following morning, February 3, all of the employees who had engaged; in the strike reported at the usual time for work, but were refused their jobs and, ordered to leave the plant. The Union by letter dated February 3 specifically requested their reinstatement, but Respondent did not reply to the letter. On, February 5, Respondent addressed a letter to each of four deaf-mutes who had. engaged in the work stoppage and strike, stating that inasmuch as they may not have understood the remarks addressed to the employees by Andrews on Feb- ruary 2, an opportunity was being afforded them to "either come back to work or not," according to their wishes. Upon receipt of this letter, these four em- ployees, Thomas J. Fail, Palmer Johnson, William Earl Brown, and Harman N. Poston, reported back to work and were reinstated .5 A similar letter was sent to. Rupert G. Harris, absent on the date of the walk-out, but he declined reinstate- ment on an individual basis. Respondent in its duly verified answer to the complaint takes the position that the'employees who left the plant on February 2 elected to quit their employment rather than return to work as directed by Andrews. It is very clear, however,. that the employees rejected both of Andrews' alternate proposals , i. e., that they either return to their jobs within 15 minutes or get their separation pay, and, chose instead to go on strike. Obviously, quitting is a voluntary act and the. employees had no intention of quitting their jobs. Had they called for their separation pay, under the circumstances of this case such action would merely Various witnesses for the General Counsel testified that after waiting only a few min- utes Andrews said , "You are all discharged ." Andrews was hospitalized at the time of the hearing and could not testify. H. L. Coddington , Jr., an official of Respondent, who- was present when Andrews addressed the employees , denied this. It is not necessary to- resolve this conflict in the testimony. It is clear that the employees who left the plant that day considered themselves strikers. 8 These four employees testified through written answers to questions submitted to them. in writing. The answers, incorporated into the transcript, are on the whole incoherent. It appears that they did not-understandthe purpose of the February 2 work stoppage an(y strike, but participated therein because they had signed union cards and were directed to do so by the union leaders in the plant . The undersigned is satisfied , however, that no force or coercion was applied to induce them to join in these concerted activities. As par- ticipants therein they stand on the same footing as the other strikers. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make manifest that they regarded themselves discharged. In the petition of February 2 and the letter of their union representative dated February 3, their action is referred to as a strike, and the request to return to their jobs is phrased as a request for reinstatement. It is found that after having engaged in a brief work stoppage, the employees upon being served with an ultimatum by Andrews to return to their jobs in 15 minutes or get their separation pay, engaged in a strike. Their action in report- ing back to work at the usual time on the following morning was an uncondi- tional request for reinstatement e When Respondent refused that request and ordered them from the plant, it discharged them. It accordingly is found that on February 3, 1948, Respondent discharged all those employees whose names appear on Appendix A attached to this Intermediate Report and made a part hereof. It remains to be found whether the discharge was for justifiable cause. While the witnesses were generally rather inarticulate in giving the causes for the work stoppage, it is gathered from the sum of their testimony that it was In protest of the discharge of James G. Brown on January 30, and a show of economic strength. In view of the finding that Brown was discharged for justi- fiable cause, it follows that both the work stoppage and the strike which fol- lowed it were economic in character and not caused by Respondent's unfair labor practices. However, none of the strikers had been replaced at the time they applied for reinstatement, and no claim is made that their jobs had been eliminated. Aside from its contention that the employees quit their jobs, a contention which has been rejected, Respondent argues that the work stoppage was a sit-down strike, and, further, that the action of one or more union leaders in pulling the master switch-which had the effect of rendering idle most of the machines whether of union members or nonnienibers-was a violation of State law and a conspiracy on the part of all the strikers to commit an illegal act. There is present in the work-stoppage which occurred on the morning of February 2 none of the elements which characterize a sit-down strike as dis- tinguished from other forms of concerted activities. There was neither seizure of property nor retention of it by those engaging in the stoppage. No resistance was offered when Respondent wished to return the machines to operation. When requested to return to work or leave the plant, they left.' And while the pulling of the master switches idled certain machines run by employees not engaging in the work stoppage, there is no evidence that any damage to property resulted from this action or any loss to Respondent other than the loss of production inherent in the stopping of the machines. But the very object of an economic strike is to exert economic pressure on the employer to bring him to terms, and a strike does not become illegal merely because the employer suffers economic loss. While it is my opinion that the employees were mistaken in believing that Holcombe and Brown had. been discharged because of their union activities, in view of Respondent's antiunion course of conduct, it can hardly be denied that some reasonable grounds existed for this belief. Aside from this, there was nothing illegal in the employees making a show of their economic strength in e It is immaterial if Respondent received neither the employee petition nor the union letter requesting reinstatement of the strikers, prior to the time when the strikers actually reported back to work. This action in itself was the strongest kind of request for rein- -statement, and if Respondent had entertained any doubt in the matter, the petition and letter would have put an end to such doubts. But it replied to neither. 7 Cf. N. L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240. ANDREWS COMPANY 395 protest of what they believed to be the unwarranted discharge of certain of their members. While it may well be that the pulling of the master switch by one or more union leaders was violative of State law, as Respondent contends, under the circumstances of this case, it cannot be said that those engaging in the work stoppage "conspired" to perpetrate an illegal act. The pulling of the master switch was incidental to the work stoppage and not its objective. Nor do I think that Respondent can rely on this act as justification of its discharge of the strikers. This defense, not mentioned in Respondent's answer, is hardly more than one of those ingenious after-thoughts which sometimes occur to an enter- prising legal mind. Andrews, when he addressed the employees on February 2,. showed a complete willingness to condone the work-stoppage which had pre- ceded his address, when he urged all of the employees to return to their jobs. He obviously discharged them because they failed to obey his instructions and went on strike instead. It is found that Respondent discharged the employees whose names appear in Appendix A of this Intermediate Report because they went on strike and that this action constituted a violation of Section 8 (a) (1) and (3) of the Act. C. The refusal to bargain It is alleged in the complaint, Respondent agrees, and it is now found that all maintenance and production employees of Respondent's bearing division at its Spartanburg, South Carolina, plant, excluding office and clerical employees and guards, professional employees and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On October 13, 1947, John L. McKinney, an organizer for the American Federa- tion of Labor, addressed the following letter to Respondent : The employees of your Company have authorized the American Federation of Labor, to act as, exclusive representative, for the purpose of collective bargaining, in respect to rates of pay, wages, hours of employment or other- conditions of employment. Therefore, we request that your Company recognize and bargain with the American Federation of Labor and it's Representatives for your employees. We further request that you advise at your earliest convenience as to when a conference can be held with our Committee. The only reply that Respondent ever made to this letter was to assemble its- employees shortly after its receipt for the purpose of urging them to bypass the- Union and form a grievance committee of their own and to threaten that. Respondent would close its plant before it would deal with the Union.' As set forth in subsection III (A) of this Intermediate Report, after receipt of notice from the Board's Regional Director that the Union had filed a petition for cer- tification, Respondent on or about November 10 circulated a questionnaire among its employees in which it, in substance, asked them to choose between the Union. and certain increased benefits. Immediately following the circulation of this- questionnaire, without consultation with the Union, Respondent put into effect. its bonus plan. As regards the bonus, while it may very well be true as testified to by Respondent witnesses, that the bonus plan had been under consideration. for months, nevertheless the manner in which it was put into effect, manifestly predicated as it was upon the questionnaire which had been circulated among, 9 The reference is to Isaac Andrews' October 14 speech discussed in subsection III (A.), of the Intermediate Report. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees, shows beyond doubt that it was deliberately used to discourage union affiliations. Also, the granting of the bonus was a unilateral act in deroga- tion of the Union's right asbargaining representative.' It is found that McKinney's letter of October 13, 1947, was a clear, unequivocal. request for recognition and bargaining, and that Respondents' failure to answer this letter together with its course of conduct following its receipt, as outlined above, constituted a clear, unequivocal refusal to recognize and bargain with. the Union. It remains to be seen whether, under all the circumstances, Respondent was under a duty to recognize and bargain with the Union as its employees' repre- sentative. It had no such duty unless the Union represented a majority of its employees in an appropriate unit. For the week ending October 18, 1947, there were 63 employees in the unit herein found to be appropriate for the purposes of collective bargaining 3D As of October 13, the date on which the Union requested recognition and bargaining rights, 40 of these employees had signed cards designating the Union as their bargaining representative." The Union therefore was the duly authorized bar- gaining representative of Respondent's employees at the time it requested recog- nition. While there is no evidence to that effect, if the Union failed to maintain its majority thereafter, Respondent may not rest on this as •a defense of its continuing refusal to bargain, since such loss of majority would reasonably be attributed to Respondent's unfair labor practices and would leave the Union's representative status undisturbed.12 Respondent complains, however, that the Union offered it no proof of its majority and that Respondent had no knowledge that its employees had signed authorization cards. If Respondent had entertained a bona fide doubt of the Union's majority, it could have afforded the Union an opportunity to submit proof or it could have petitioned the Board for an election. It did neither. Instead, it engaged in a course of conduct designed to undermine the Union and to destroy its majority, thereby wrecking the premises upon which the defense now raised might properly have rested." Nor does the fact that the charter of the local union was later revoked and McKinney dismissed as an organizer for the Union, afford Respondent a proper defense. Respondent was not asked to recognize McKinney as the employees' bargaining representative, but the American Federation of Labor, and in any event the employees' choice of their 0 J. H. Allison d Co., N. L. R. B. v., 165 F. 2d 766; Allis-Chalmers Mfg. Co. v. N. L. R. B., 162 F. 2d 435 ; Peoples Motor Express, Inc., 74 NLRB 1597; Hudson Hosiery Co., 72 NLRB 1434. 10 There is no dispute as to 62 of these employees . Respondent would include an addi- tional part-time employee , and inasmuch as the General Counsel did not oppose this addition , this employee is included to make a total count of 63. 11 This finding is based on signed authorization cards which were received in evidence over the objection of the Respondent . The signatures on all except 18 of these cards were verified by witnesses appearing at the hearing . As to the 18, it was stipulated that i f McKinney, the union organizer, were present at the hearing he would testify that the 18 cards in question were signed in his presence on the dates appearing on the cards by the persons whose signatures appear thereon . Respondent raised no question concerning the authenticity of these signatures. 12 Consolidated Machine Tool Corp ., N. L. R. B . v., 163 F. 2d 376 ; cert. denied , 332 U. S. 824 ; Cowell Portland Cement Co., N. L. R. B . v., 148 F. 2d 237 ; cert . denied, 326 U. S. 735 ; Morris P. Kirk d Son, Inc., N. L. R. B. v., 151 F. 2d 490; 154 F. 2d 110. 12 W. W. Holmes, 72 NLRB 39 ; Crown Can Company, N. L. R. B. v., 138 F. 2d 263, 267; L. B. Hartz Stores, 71 NLRB 848 ; Pepsi-Cola Bottling Co., 72 NLRB 601 ; Pacific Moulded Products Co., 76 NLRB 1140 ; Harris-Woodson Co., Inc. v. N. L . R. B., 162 F. 2d 97, 99-100, Cf. Roanoke Public Warehouse, 72 NLRB 1281. i ANDREWS COMPANY 397 representative for purposes of collective bargaining is not the proper concern of -the Respondent. Finally, Respondent's counsel argues in his brief that the Union having filed .a petition for certification, the only way in which its majority may now be established is by balloting conducted pursuant to Section 9 (c) of the Act. I am unable to agree. The section of the Act referred to by Respondent relates to representation proceedings and this is not a representation proceeding but an unfair labor practice proceeding under Section 10 of the Act wherein the Board's powers in the prevention of unfair labor practices are defined. Section 9 (c) imposes no limitation on the powers set forth in Section 10. The Board in the -case at bar, in refusing to conduct an election while charges of unfair labor practices were pending, was merely conforming to long-established and approved practice. The purpose of bargaining elections is to afford the employees a free choice of bargaining representatives, and freedom of choice cannot exist among employees who are being subjected to coercive pressures by their employer." Obviously, in the case at bar, the only way to remedy Respondent's unfair labor practices and thus effectuate the policies of the Act, is to require it to bargain with the Union designated by the employees at a time when they had real freedom of choice. It is found that on October 13, 1047, and at all times thereafter, Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, and by such conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III above , occurring in connection with the operations of Respondent 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. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action which the undersigned finds is required in order to effectuate the policies of the Act. The Respondent having discharged the 27 employees whose names are listed in Appendix A of this Intermediate Report because of their union and con- certed activities, it will be recommended that Respondent offer to each of them who has not already been reinstated to an equivalent position without loss of seniority and other rights and privileges, immediate and full reinstatement to their former or substantially equivalent positions,15 without prejudice to their seniority and other rights and privileges," discharging, if required, all employees la Pacific Plastic & Mfg. Co., Inc., 68 NLRB 52 ; Ames Spot Welder Co ., Inc., 75 NLRB 352. The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, ,65 NLRB 827. le Respondent argues that most of the discharged employees have obtained other employ- ment and do, not wish reinstatement . It is an entirely speculative matter as to what a given employee 's position may be relative to reinstatement , until an actual offer of rein- statement has been made , and only by an actual offer of reinstatement by Respondent can the public wrong of Respondent's discriminatory action be adequately remedied. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hired since February 3, 1948. It will also be recommended that Respondent make whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, each of the employees whose names appear in Appendix A of this Intermediate Report, by payment to each of them of a sum of money equal to the amount he or she normally would have earned as wages from the date of the discharge, February 3, 1948, to the date of Respondent's offer of reinstatement, less his or her net earnings during that period.17 It having been found that Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, it will be recommended that, upon request, Respondent bargain collectively with the Union as the exclusive representative of such employees with respect to rates of pay, wages, hours, and other terms and conditions of employment. Finally, because of Respondent's manifest hostility to the efforts of its em- ployees to assert the rights guaranteed them by the Act, it will be recommended that Respondent cease and desist from in any manner interfering with, re- straining, or coercing its employees in their right to self-organization. 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. Respondent in the operation of its bearing division at its Spartanburg, South Carolina, plant, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The American Federation of Labor is a labor organization within the. meaning of Section 2 (5) of the Act. 3. All production and maintenance employees of Respondent's bearing division. of its Spartanburg, South Carolina, plant, excluding office and clerical employees. and guards, professional employees and supervisors as defined by the Act, con- stitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. 4. The American Federation of Labor was on October 13, 1947, at all times material herein has been and now is, the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining: within the meaning of Section 9 (a) of the Act. 5. By refusing on October 13, 1947, and thereafter, to bargain collectively with. the American Federation of Labor as the exclusive representative of the em- ployees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of those employees whose names are listed in Appendix A of this Intermediate Report,. thereby discouraging membership in a labor organization, Respondent has. engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. '7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 11 Crossett Lumber Co ., 8 NLRB 440. 9 ANDREWS COMPANY 399 9. Respondent has not engaged in unfair labor practices by surveillance of the union affiliation and activities of its employees, or by discrimination in the hire and tenure of employment of its employees, Charles H. Holcombe, Jr. and James G. Brown. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that Respondent, Isaac Andrews, Sarah Andrews, Mary E. Andrews, Martha W. Andrews, A. J. R. Helmns and H. O. Coddington, d/b/a Andrews Company, Spartanburg, South -Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with the American Federation of Labor as the exclusive representative of its employees in the appropriate unit described above; (b) Discouraging membership in the American Federation of Labor, or any other labor organization, by discharging or refusing to reinstate any of its em- ployees or by discriminating in any other manner in regard to their hire and 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 right to self-organization, to form labor organizations, to join or assist the American Federation of Labor 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 is re- quired to effectuate the policies of the Act: (a) Upon request bargain with the American Federation of Labor as the exclusive representative of its employees in the appropriate unit described above; (b) Offer to each of the employees whose names are listed in Appendix A of this Intermediate Report who has not already been reinstated to his former or substantially equivalent position without loss of seniority or other rights .and privileges, full and immediate reinstatement to his or her former or sub- stantially equivalent position, without prejudice to seniority or other rights ,and privileges ; (c) Make whole the employees whose names appear on Appendix A of this Intermediate Report, for any loss of pay they may have suffered by reason of Respondent's discrimination against them (1) by payment to each of them who has been reinstated to his former or equivalent position of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge, February 3, 1948, to the date of his reinstatement, less his net earnings during that period; and (2) by payment to all others whose names appear on Appendix A of a sum of money equal to the amount which they normally would have earned as wages from the date of their discharge, February 3, 1948, to the date of Respondent's offer of reinstatement, less their net earnings during that period; (d) Post at its Spartanburg, South Carolina, plant, copies of the notice attached hereto and marked Appendix B. Copies of said notice, to be furnished by the Regional Director of the Tenth Region, shall, after being signed by Re spondent's representative, be posted by Respondent immediately upon receipt. thereof and maintained by it for sixty (60) days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material; and (e) Notify the Regional Director for the Tenth Region, in writing, within twenty (20) days from the receipt of this Intermediate Report, what steps Respondent has taken to comply herewith. It is further recommended that, unless Respondent shall within twenty (20) days from the date of the receipt of this Intermediate Report, notify said Regional Director in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring Re- spondent to take the action aforesaid. It is recommended that the complaint be dismissed insofar as it alleges that Respondent discriminated in regard to the hire and tenure of employment of Charles H. Holcombe, Jr. and James G. Brown, or engaged in surveillance. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immedi- ately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.43, should any party desire per- mission 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 21st day of February 1949. WILLIAM E. SPENCER, Trial E,xam4ner. APPENDIX A James P. Copes L. C. Layton Dewey Adkins, Jr. Herman H. McLeod Paul J. Raines Markus L. Ross Hampton L. Parris Rufus E. Rhinehart Carolyn F. Coffey Chester E. Dudek Herman N. Poston Palmer Johnson Richard Z. Anderson Thomas M. Hatchette William E. Brown Billy Joe Ivey Bobby I. Long Thomas J. Fail Wayne Culberson Carl Harris John W. Etters John Williams Leroy Grace Frank Solesbey Land Brockmon James Johnson Rupert G. Harris ANDREWS COMPANY APPENDIX B NOTICE TO ALL EMPLOYEES 401 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 or- ganizations, to join or assist the AMERICAN FEDERATION OF LABOR 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. WE WILL OFFER to those employees listed below who have not already been reinstated, reinstatement to their former or substantially equivalent posi- tions without prejudice to seniority or other rights and privileges previously enjoyed, and will make all employees listed below whole for any loss of pay suffered as a result of the discrimination. James P. Copes Land Brockmon Leroy Grace Herman H. McLeod L. C. Layton James Johnson Hampton L. Parris Paul J. Raines Dewey Adkins, Jr. Chester E . Dudek Rufus E. Rhinehart Markus L. Ross Richard Z. Anderson Herman N. Poston Carolyn F. Coffey Billy Joe Ivey Thomas M. Hatchette Palmer Johnson Wayne Culberson Bobby I. Long William E. Brown John Williams Carl Harris Thomas J. Fail John W. Etters Frank Solesbey Rupert G. Harris WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the bearing division, Spar- tanburg, South Carolina, plant, excluding office and clerical employees and guards, professional employees and supervisors as defined by the Act. 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. ISAAC ANDREWS , SARAH ANDREWS , MARY E. ANDREWS, MARTHA W. ANDREWS , A. J. R. IIELMVS , and H. 0. CODDINGTON . d/b/a ANDREWS COMPANY, Employer. By ----------------------------------------- (Representative) (Title) Dated--------------------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.