Gatke Corp.

In the Matter of GATKE CORPORATION and UNITED CONSTRUCTION WORKERS OF AMERICA, AFFILIATED WITH UNITED MINE WORKERS OF AMERICA Case No. 11-0,1221.-Decided July 10, 1946 Messrs. Clifford L. Hardy and Arthur Donovan, for the Board. Fyffe and Clarke, of Chicago, Ill., by Mr. John Harrington, for the respondent. Mr. Frank Barnhart, of Terre Haute, Ind., and Mr. Milton L. Booth, of Hammond, Ind., for the Union. Mr. Seymour Cohen, of counsel to the Board. DECISION AND ORDER On March 18, 1946, Trial Examiner Sidney L. Feiler 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. The Trial Examiner also found that the respondent had not engaged in unfair labor practices in granting wage increases, promotions, and reclassifications, and recommended that in this respect the complaint be dismissed. Thereafter, the re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications and additions hereinafter set forth. 1. The Trial Examiner found that the respondent violated Section 8 (1) of the Act by various acts and statements of its officers and supervisory employees, as set forth in the Intermediate Report. We find that these acts and statements, when considered in their entirety, 69 N. L. R. B., No. 41. 333 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disclose a coercive course of conduct by the respondent which inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2.- The Trial Examiner found that the respondent violated Section 8 (3) of the Act by discharging employee Leo S. Renier. We do not agree. The evidence shows, as the Trial Examiner finds, that after V-J Day, the respondent was forced, as a matter of economic necessity, to reduce its working force. Plant Manager Mikesell testified without contradiction that two employees in the department in which Renier worked were laid off a short time prior to the suspension of the re- spondent's contracts and in anticipation thereof. After the cancella- tion of the respondent's contracts following V-J Day, the very ma- chines which were operated by Renier were shut down completely. It is true that there were a number of employees retained by the respondent after Renier was discharged to whom Renier was senior, but it was affirmatively shown that the respondent at no time followed any policy of seniority in making lay-offs. Nor was there any evidence to show that the respondent ever transferred its employees to other jobs under circumstances similar to those occurring here. At the time of the hearing, the machines formerly run by Renier were being operated about 20 percent of the normal working time. However, they were being operated by employees who had been with the re- spondent much longer than Renier and who were merely "doubling up with the work" regularly performed by them. No one has been hired by the respondent to replace Renier or to perform the work formerly done by him. In view of the foregoing, we are not persuaded that Renier was selected for discharge because of his union activities. We shall, there- fore, dismiss the complaint insofar as it alleges that the respondent, by its discharge of Renier, discriminated in regard to hire and tenure of employment in violation of Section 8 (3) of the Act. 3. The Trial Examiner further found that the respondent violated Section 8 (5) of the Act by its refusal to sign a contract with the Union on December 6, 1944, and at all times thereafter, including its refusal, on January 22, 1946, to recognize the Union as collective bar- gaining representative of its employees in an appropriate unit. The respondent admits that there is no dispute as to the facts con- cerning its refusal on December 6, 1944, to enter into a written con- tract containing a number of provisions upon which the respondent and the Union were in agreement, but which did not include certain issues still not agreed upon, namely, wages, vacations, union security, and dues check-off, which they agreed to refer to the National War Labor Board for disposition. The respondent argues that it was under GATKE CORPORATION 335 no obligation to enter into what it called a "partial" contract. There is no showing, nor did the Trial Examiner find , that the respondent had not bargained in good faith up to December 6, 1944. However, in x new of our determination as to the respondent's unlawful refusal to recognize the Union as the collective bargaining representative of its employees in January 1946, and to bargain with it, as hereinafter set forth, we find it unnecessary to pass upon the question of whether the respondent 's refusal to sign an agreement on December 6, 1944, constituted an unfair labor practice, within the meaning of Section 8 (5) of the Act. In January 1946, the respondent notified the Union for the first time that the respondent believed that the Union no longer represented a majority of its employees, and since that time the respondent has refused to deal with the Union as the bargaining representative of its employees. We agree with the Trial Examiner 's finding that the respondent thereby refused to bargain with the Union within the meaning of Section 8 ( 5) of the Act. Immediately after its certification in July 1944, the Union entered into negotiations with the respondent in an effort to secure a contract. By December 1944, a number of provisions had been agreed upon, and it was further agreed to submit the issues still in dispute to the War Labor Board, as stated above. On October 11, 1945, the Regional War Labor Board issued its Directive Order, setting out a wage scale, and vacation , maintenance-of-membership , and dues check-off provisions. On December 11, 1945, the National War Labor Board issued its Di- rective Order, denying the respondent's petition for review of the Regional Board's Order. Thereafter, the Union renewed its efforts to secure a contract only to be met with a refusal of further recogni- tion on the asserted ground that the Union had lost its majority status, as stated above. As found by the Trial Examiner, we believe that the situation here- in is one in which the principles laid down in the Allis-Chalmers case should be applied.' Although a considerable period has elapsed since its certification, the Union, while exercising due diligence , has been un- able to secure for the employees in the unit that it represents the full benefits of collective bargaining , because of a resort to the orderly pro- cedures of the War Labor Board. Nor are we satisfied that the list of union members in good standing submitted to the respondent by the Union in October 1945, pursuant to the Regional War Labor Board's Order, served to rebut the presump- tion of the continued existence of the Union's majority status, as the respondent contends . There is a real difference between the designa- tion of a labor organization as collective bargaining representative I Matter of Albs-Chalmers Manufacturing company, 50 N. L. R B. 306 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and membership therein. They are not synonymous. The Act guar- antees to employees the right to bargain collectively through repre- sentatives of their own choosing, and Board-conducted elections afford them a means of expressing their choice. In no case is membership a requirement.' Under these circumstances we believe, and find, that on and after January 22, 1946, the certification of the Union continued to bind the respondent to recognize and deal with the Union as the collective bargaining representative of the respondent's employees in the ap- propriate unit.' V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices , we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent, by its officers and supervisory personnel, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act by various acts and statements of an anti-union and coercive character . It has also been found that the respondent refused to bargain with the Union in violation of the Act. We shall therefore enjoin the respondent from the commission of such unfair labor practices. Having found that the respondent has refused to bargain collec- tively with the Union, we shall order that , upon request, the respond- ent bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, in respect to labor disputes, grievances, rates of pay, wages, hours , and other terms and conditions of employment. 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, Gatke Corporation, Warsaw, Indiana, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the Union as the ex- clusive representative of all its production and maintenance employees working at its plant, including the shipping-room clerk and the watch- man, but excluding office and clerical employees, foremen, supervisors, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of 2 Matter of Consolidated Machine Tool Corporation, 67 N. L. R. B. 737. 8 See Matter of American-Marsh Pumps, Inc, 62 N L R B 931, Matter of Wentworth Bus Lines, Inc, 64 N. L R. B 65. GATKE CORPORATION 337 employees, or effectively recommend such action, with respect to labor disputes, grievances, rates of pay, wages, hours, and other terms and conditions of employment; (b) Coercing the employees in the exercise of their rights to self- organization. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the Union as the ex- clusive representative of all its employees in the afore-mentioned unit in respect to labor disputes, grievances, rates of pay, wages, hours, and other terms and conditions of employment; (b) Post at its plant in Warsaw, Indiana, copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, after being duly signed by the respondent's representative, shall be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to em- ployees 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; (c) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the respondent discriminated against Leo S. Renier, within the meaning of Section 8 (3) of the Act. 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 bargain collectively upon request with United Con- struction Workers of America, affiliated with United Mine Workers of America as the exclusive representative of all em- ployees in the bargaining unit described herein with respect to labor disputes, grievances, wages, rates of pay, hours of employ- ment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: 701592-47-vol. 69 23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All the respondent's production and maintenance employees at the plant, including the shipping-room clerk and the watchman, but excluding office and clerical employees , foremen, supervisors, and all other supervisory employees with authority to hire, pro- mote, discharge , discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. We will not coerce our employees in the exercise of their rights to self-organization. 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 mem- bership in or activity on behalf of any such labor organization. GATKE CORPORATION, Employer. Dated---- ---------------- By ---------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT Messrs Clifford L. Hardy and Arthur Donovan, for the Board. Fyffe and Clarke, of Chicago, Ill , by Mr. John Harrington, for the respondent. Mr. Frank Barnhart, of Terre Haute, Ind., and Mr. Milton L. Booth, of Hammond, Ind., for the Union. STATEMENT OF THE CASE Upon a first amended charge duly filed by United Construction Workers, affili- ated with United Mine Workers of America, herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint dated February 8, 1946, against Gatke Corporation, herein called the respondent, al- leging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce 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, together with notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that the respondent, by its officers, agents, and supervisory employees, from on or about June 1, 1944, and at all times since that date: (1) has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by ( a) fostering and encouraging the circulation of an anti-union petition among its employees on the respondent's premises during working time, ( b) advising, urging, threatening, and warning its employees to refrain from becoming or remaining members of the Union, ( c) making dis- paraging and derogatory remarks to its employees concerning the Union and other labor organizations , (d) threatening its employees with discharge, demo- GATKE CORPORATION 339 tion, and loss of pay if they joined or assisted the Union, (e) maligning and vilifying representatives of the Union in the presence of its employees, and otherwise indicating to its employees its disapproval of and opposition to the self-organization of its employees; (2) discharged Leo S Bender on or about August 31, 1945, and refused io reinstate him, because of his union activities; (3) and on or about December 6, 1944, and at all times thereafter, refused and continued to refuse to bargain with the Union as the collective bargaining rep- resentative of its employees in an appropriate unit. In its answer, dated Febru- ary 14, 1946, the respondent admits certain jurisdictional allegations contained in the complaint, but denies the commission of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held at Warsaw, Indiana, on February 20 and 21, 1946, before the undersigned, Sidney L. Feiler, the Trial Examiner desig- nated by the Chief Trial Examiner The Board and the respondent were repre- sented by counsel ; the Union, by representatives Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. After the presentation of all the evidence, counsel for the Board moved to conform the complaint to the proof as to formal matters. Counsel for the respondent, joining in the motion, requested that the motion be amended to include all the pleadings. The motion as amended was granted. Counsel for the Board and the respondent then presented oral argu- ment Opportunity to file briefs was afforded all parties, but none were received. 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 The respondent is an Illinois corporation, having its principal office at Chicago, Illinois, and a plant at Warsaw, Indiana, hereinafter referred to as the plant. The respondent is engaged in the manufacture of asbestos friction products, brake linings, timing gears, and non-metallic bearings. Among the raw ma- terials used by the respondent are crude and synthetic rubber, crude asbestos, cotton cloth, asbestos cloth, and asbestos yarn. During 1943, a representative year, the respondent purchased raw materials valued at more than $50,000, of which more than 50 percent was purchased and transported to the plant from points outside the State of Indiana. During the same period, the respondent sold products having a value in excess of $100,000, of which more than 50 percent was transported from the plant to points outside the State of Indiana. The respondent does not contest the jurisdiction of the Board and the under- signed finds that it is engaged in commerce within the meaning of the Act.' 11. THE ORGANIZATION INVOLVED United Construction Workers of America, affiliated with the United Mine Workers of America, is a labor organization admitting to membership employees of the respondent. ' The findings in this section are based upon the findings of the Board in the representa- tion proceeding involving the respondent and the Union ( 56 N. L R B . 1525 ) The present case arose after the certification of the Union therein . It was stipulated that the findings in that proceeding as to the business of the respondent were substantially true as of the time of the hearing The undersigned concludes and finds that the course of the respond- ent's business had not changed substantially during the entire period here relevant. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively; interference, restraint, and coercion 1. The appropriate unit The complaint alleges that all of the respondent 's production and maintenance employees working at the plant , including the shipping room clerk and the watch- man, but excluding office and clerical employees , foremen, supervisors, and all other supervisory employees with authority to hire, promote , discharge, dis- cipline, or otherwise effect changes in the status of employees , or effectively recommend such action, constitute an appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9 ( b) of the Act. The claimed unit is identical with the unit found appropriate by the Board in the afore-mentioned representation proceeding . The respondent does not challenge the appropriateness of that unit and the undersigned finds that at all times here relevant said unit constituted an appropriate unit for the purpose of collective bargaining within the meaning of Section 9 ( b) of the Act. 2. Representation by the Union of a majority in the appropriate unit On July 10, 1944, pursuant to a Decision and Direction of Election entered by the Board in the afore-mentioned proceeding, an election was conducted among the employees of the respondent . The Union won the election and on July 21, 1944, it was certified by the Board as the exclusive representative of all the em- ployees in the appropriate unit. 3. The refusal to bargain a. History The afore-mentioned certification of the Union as collective bargaining repre- sentative was the culmination of an organizing campaign which had begun in the early part of 1944: After the certification, the Union entered into negotiations with the respondent in an attempt to arrive at an agreement. There is no fundamental dispute as to the course of these negotiations and the occurrences at the various meetings between the parties. Shortly after the certification, Frank Barnhart, regional director of the Union, met with Plant Manager Neal Mikesell and gave him a pro- posed contract. Mikesell forwarded the contract to the respondent's executive offices at Chicago. On September 14 or 19, union representatives met with repre- sentatives of the respondent, but no progress was made. Subsequently, on October 6, 1944, Barnhart met with Thomas Gatke, president of the respondent, at the latter's Chicago office. There was some discussion of the Union's pro- posal, but no concrete progress was made. Counter-proposals, presented by the respondent, were discussed at a meeting on October 27.8 Further discussion took 2 This was the first attempt by the Union to organize workers at the plant Two other unions had attempted to organize the employees previously, but their efforts had been unsuc- cessful. The history of these efforts, which included three Board-conducted elections in the period 1941-1943, is contained in the following citations : 30 N L. R. B. 514, 33 N. L. It. B. 216, 39 N. L. R B. 197, 41 N. L. It. B. 915, 48 N. L. R B. 962, 48 N. L. It. B. 1002, 50 N. L. R B 663 (petition dismissed by the Board for lack of majority, September 11, 1943). The above proceedings are not germane to the instant case 3 At the September meeting, Gatke declared he would never sign a contract and did not want a union at the plant. At the October meetings, he disparaged the union membership. 'These statements are discussed hereinafter in the section on interference GATKE CORPORATION 341. place on November 6 when Barnhart met with John Harrington, the respondent's attorney. Agreement was reached on some provisions and it was also agreed that the aid of the U. S. Conciliation Service would be sought as to the pro- visions still in dispute. On December 6, 1944, a conciliation commissioner met with the parties. No final settlement could be reached and at the end of the meeting there was dis- agreement on the subjects of wages, vacations, maintenance of membership, and check-off of union dues. Barnhart had in his possession a copy of a pro- posed contract submitted by the respondent. This draft contained notations of clauses in dispute Immediately after the meeting, Barnhart drafted a pro- posed contract which omitted the clauses in dispute and contained only those items to which there had been agreement He presented that draft to Har- rington that same day and asked that it be signed and that the matters in dis- pute be certified to the War Labor Board. Harrington. while conceding that the latest draft represented what the parties had agreed to, refused, on behalf of the respondent, to sign a "partial" contract. The dispute was then certified to the War Labor Board Proceedings before the War Labor Board took place during 1945. On February 24, a hearing was held before a Tripartite Panel Its Report and Recommenda- tions was issued on July 25 On October 11, 1945, a Directive Order was issued by the Regional War Labor Board. The order provided a wage scale, maintenance of membership, a check-off of union dues, and vacation provisions. The re- spondent having filed a petition for review of the Directive Order, the National War Labor Board, on December 11, issued its Directive Order denying the pe- tition. After the Directive Order of the Regional War Labor Board was issued, the Union attempted to enter into collective bargaining with the respondent. On October 21, Barnhart wrote to Gatke urging that the respondent accept that decision and engage in collective bargaining Gatke referred him to Harring- ton. Barnhart then wrote to Harrington asking for a meeting to complete a contract. Harrington, on November 16, replied that since the case was pending before the National War Labor Board he could not see that anything could be gained by further negotiation. After the decision of the National War Labor Board was issued, Barnhart, on January 7, 1946, wrote to Harrington requesting a meeting "for the purpose of incorporating the Directive Order of October 11, 1945, into a signed contract." Harrington replied by letter dated January 22, 1946, in which he said : I have discussed the subject matter of your letter of January 7, 1946 with Mr. Gatke. The Company believes that the Directive Order of the National War Labor Board is wrong. I have advised Mr. Gatke that War Labor Board Directive Orders are only recommendations, and that the Courts have so held. I have also advised him that the reasons advanced by the War Labor Board for recommending maintenance of membership-namely to compen- sate unions for their no strike pledge-are now non-existent. The Company also considers that the provision of the Directive Order relating to the payment of retroactive wages is unreasonable The Company is consequently unwilling to follow the recommendations of the National War Labor Board I have been advised by the office of the Regional Director of the National Labor Relations Board at Indianapolis that you have amended the charge heretofore filed by you against the Company to include an allegation that '342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company has refused to bargain collectively with the United Construc- tion Workers The Company is convinced that the United Construction Workers do not represent a majority of its employees. The list of employees which you submitted to the Company for the check-off of dues, following the War Labor Board's Directive Order contained the names of only a small minority of the Company's employees A number of the employees whose names were on that list have since notified the Company that they were not members of the Union and did not desire to be represented by it. I have advised Mr. Gatke that the National Labor Relations Board should be informed of these facts. Consequently, we plan to submit this information to the Regional Board. (Bd Ex 14) b Contentions of the parties ; conclusions The Board contends that on December 6, 1944, and at all times thereafter the respondent refused to bargain with the Union as collective bargaining repre- sentative in violation of the Act It relies on three specific instances to support its position The first such instance, it contends, was the respondent's refusal, on December 6, 1944, to sign a contract with the Union embodying the terms which had been agreed upon at that time. Secondly, the Board relies upon alleged direct bargaining by the respondent with its employees and its granting of a unilateral wage increase on or about September 11, 1945 Lastly, the Board depends upon the respondent's refusal to recognize the Union in January 1946. The respondent does not challenge Barnhart's testimony that the draft con- tract which he submitted to Harrington on December 6, 1944, correctly evidenced the points on which the respondent and the Union had agreed. It admits that it refused to sign it. It contends, however, that at that time vital issues remained in dispute ; union security, wages, and vacations ; that it was not required to enter into a "piece-meal" agreement surrendering any future bargaining rights it might have as to these issues. In the normal course of events, the collective bargaining process includes meet- ings between the parties concerned, efforts to reach an agreement and the for- malizing of the agreement by a written contract' If an impasse is reached in the negotiations, efforts are made to settle the dispute by peaceful means If these fail, the parties may then resort to the various weapons of economic warfare The demands of the war effort required that the normal pattern of collective bargaining be modified Among other rights, labor and management gave up the right to resort to economic conflict and agreed to abide by the de- cisions of the War Labor Board in the settlement of controversies between them. On December 6, 1944, the respondent and the Union agreed that the issues then remaining in dispute, namely, wages, vacations, and union security, should be certified to the War Labor Board for disposition. Both parties were apparently familiar with the procedure before that Board. It was obvious that the dispute might not be settled for some time since the Board's procedure provided for a hearing before a Tripartite Panel, its report, and review at the request of either of the parties by both the Regional War Labor Board and the National War Labor Board. However, it is clear that as a result of the bargaining which had taken place, the parties had reached agreement on many important issues. An examination of the draft prepared by Barnhart on that day, which it is admitted represented the understanding of the respondent and the Union, shows that it contained 4 H. J. Heinz Company v. N. L. R. B., 311 U S 614 GATKE CORPORATION 343 detailed provisions as to recognition, hours and overtime pay, seniority, griev- ance procedure, military service, strikes, and lock-outs This agreement was the result of the effort of the Union over a period of 6 months to carry out its duties as collective bargaining representative and represented the joint efforts of the Union and the respondent to come to an understanding. The respondent's refusal to sign the agreement postponed to some indefinite time in the future further negotiations for a contract. Respondent's contention that the signing of the partial agreement in the form it was in on December 6, 1944, would jeopardize its bargaining position as to the disputed issues is without merit. It would still be able to offer concessions as to the disputed issues in return for modifications of provisions previously agreed upon. The undersigned concludes the respondent was under a duty under the conditions prevailing in this case to sign an agreement with the Union formalizing the understanding of the parties as to the issues upon which there was agreement and finds that its refusal to do so was a refusal to bargain within the meaning of the Act.6 The complaint alleges that the respondent refused to bargain within the meaning of the Act by bargaining directly and individually with its employees in the appropriate unit with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. It also alleges that on or about September 11, 1945, the respondent unilaterally granted wage increases to all employees in the unit. In its answer, the respondent states that it has "granted ,individual merit increases to its employees and has made reclassifications and promotions and placed into effect the rate ranges contained in a War Labor Board Directive." No testimony was introduced concerning any merit increases, reclassifications, and promotions which respondent gave to its employees. The record does not indicate the extent of those wage adjustments, whether they departed in any substantial manner from established custom, whether the Union objected to them or attempted to bargain concerning them or whether there were any nego- tiations between the Union and the respondent concerning them. As to the Board's allegation of a unilateral general wage increase on or about September 11, 1945, there was introduced in evidence a letter signed by Gatke which was posted at the plant for the information of employees. In this letter, reference was made to proceedings before the War Labor Board, the existence of a job evaluation survey, and the respondent's intention to establish new wage rates when the survey had been completed. No evidence was presented as to the job survey or whether any rates were determined as a result thereof, or whether any wage adjustments were ever made as a result of the survey. However, as the answer indicates, some effort was made by the respondent to comply with the wage rates established in the proceedings before the War Labor Board. Those rates were not established as a result of unilateral action. They were fixed after a hearing in which the Union and the respondent participated. The respondent cannot be held at fault for instituting the rates arrived at through that form of arbitration. 6 Cf Matter of Tampa Electric Company, 56 N. L R. B. 1270, Matter of Salant & Salant, Inc., 66 N. L. R. B. 24 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned concludes and finds that the respondent's conduct with respect to wage adjustments and promotions was not violative of the Act. The Board further contends that in January 1946, the respondent was guilty of a refusal to bargain within the meaning of the Act when it refused to further recognize the Union as collective bargaining representative. The respondent does not deny that it refused to recognize the Union, but maintains that it was within its rights in doing so because the Union did not then represent a ma- jority of the employees in the appropriate unit. It contends that while, under established Board practice, a certified union is presumed to maintain its majority for a reasonable time,' that presumption is inapplicable to this case since there was a period of 18 months between the certification and the refusal to bargain in January 1946 It further seeks to justify its action by pointing to the fact that in October 1945, pursuant to the Directive Order of the Regional Wai Labor Board, the Union furnished it with a list of members in good standing consisting of 52 names. Plant Manager Mikesell testified, without contradiction, that 7 of the group were not in respondent's employ at the time the list was received. He also testified that at the time of its receipt there were approximately 185 employees in the unit and that at the time of the hearing their approximate number was 210. The defect in the respondent's contentions is that it has ignored the entire history of collective bargaining between itself and the Union. After the Union was certified as collective bargaining representative it promptly entered into negotiations with the respondent in an effort to secure a contract. It was unsuccessful. In December 1944, when the parties had agreed on some issues and disagreed on others, it proposed that a contract be signed as to the issues not in dispute. This the respondent refused to do. As to the disputed issues, the Union had the choice of submitting them to the War Labor Board or em- ploying economic sanctions in violation of the announced public policy. It chose to conform to War Labor Board procedure. After the Regional War Labor Board issued its order, the Union suggested that the respondent meet with it in an attempt to settle those issues, but the respondent took the position that it would not engage in discussion of the issues before final disposition of the issues by the National War Labor Board. After the decision of the National War Labor Board, the Union renewed its efforts to secure a contract only to be met with a refusal of further recognition. The situation herein is one where a bargaining representative, although exercising due diligence, because of resort to the processes of the War Labor Board, has been unable to proceed to secure for the employees in the unit it represents the full benefits of collective bargaining until a substantial period after its certification. The Board has considered this problem and has held that a bargaining representative should not be penalized by its conformance to procedures which were in furtherance of the war effort. It has ruled that in such a situation the bargaining representative is entitled to recognition by an employer and the right to bargain collectively.' The Union was not required to furnish additional evidence of its majority status in January 1946. It is therefore unnecessary to rule on the effect of the membership list submitted in 4 Franks Bros. Co. v. N. I, R B., 321 U S 702: N L R. B. v. Grieder Machine Tool & Die Co., 142 F. (2d) 163 (C. C. A 6) ; N. L. R. B. v. Century Oxford Mfg. Corp., 140 F (2d) 541 (C. C A. 2), cert. den. 323 U S 714; N. L It. B. v. Appalachian Electric Power Co, 140 F. (2d) 217 (C. C. A. 4) ; Valley Mould & Iron Corp. v. N. L. R. B., 116 F (2d) 760 (C C. A 7). 4 Matter of Allis-Chalmers Manufacturing Company, 50 N L. R B. 306; Matter of Ameri- can-Marsh Pumps, Inc., 59 N. L. It. B 1084, 62 N. L. It. B. 931: Matter of Kennecott Copper Corporation, 51 N. L. R B. 1140; Mattel of Taylor Forge & Pipe Works, 58 N. L. It. B. 1375, Matter of Montgomery, Ward & Company, 60 N L. It. B 574; Matter of California Door Company, 64 N. L. R. B. 5. GATKE CORPORATION 345 October 1945. However, it should be noted in passing that the list was only a list of members in good standing in the Union , it did not have any direct bearing on the number of employees in the unit who desired that the Union act as collective bargaining representative. The undersigned finds that by its refusal to sign a contract with the Union on December 6, 1944, and at all times thereafter, including its refusal, on January 22, 1946, to recognize the Union as collective bargaining representative the re- spondent refused to bargain in violation of the Act. 4. Acts of interference, restraint, and coercion a. Acts and statements of President Gatke The Board presented several witnesses who testified concerning the conduct of Thomas Gatke, president of the respondent, during the Union's campaign to organize the employees and also after its certification. One phase of this testi- mony dealt with Gatke's attitude during bargaining negotiations after the certi- fication of the Union. Barnhart testified that at the conference on October 6, 1944, Gatke told him "You don't represent the right kind of people in that plant . . . We have got a lot of people working there who are hill- billies, and I would not hire them under normal conditions . . . I am going to tell you what I told Mr. Sweeney of the A. F. of L., I told him that he did not represent the right kind of people down there, the better class of people did not belong to the union, and I convinced him that I was right about it, and he walked out and left us." Former employee Leo Renier testified that at a later meeting, on October 27, Gatke repeated his remarks about hill-billies and undesirable help. He further testified that at the September meeting with union negotiators, Gatke said to them, "You might as well know it now as later, I will never sign your contract . . . I don't intend to have any union in my shop." The uncontra- dicted testimony of Barnhart and Renier [Gatke did not testify at the proceed- ings] is credited Respondent suggests that these remarks were made in the heat of bargaining and should be disregarded . However, there is substantial evi- dence indicating that these remarks reflected Gatke's attitude. Shortly before the election in June 1944, Gatke spoke to the workers His talk was made on plant premises on working time in the presence of all the employees including the supervisory staff. All the witnesses who testified and who had heard the speech corroborated Renier's testimony that Gatke said, "If you fellows want a union, I don't see why you picked this union. Why didn't you get some- thing like the A. F. of L ?" Renier also testified that during the speech Gatke addressing himself to the women employees said, "Ladies, I would have you to understand that if we had a union in here, one of the first things they would ask for would be seniority . . . You know what would happen . . . These men here have all been here longer than you ladies, and naturally that would leave you ones out. We find we have a number of ladies doing efficient work and we want to continue having women in our employment." The other witnesses who testified concerning this speech could not remember whether Gatke did make a separate appeal to women employees, although employee Henderson Cremeens recalled that Gatke did say something about women employees. Renier's testi- mony concerning the speech was corroborated in important details by other witnesses. His testimony impressed the undersigned as an effort to tell the full story of what had occurred. His testimony concerning Gatke's speech is credited. Renier further testified that the day after a bargaining conference in September 1944, he had a personal encounter with Gatke. He was standing at a drinking fountain at the plant with employees Joseph Cutler and Walter Hartman, Renier 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified, when Gatke walked over with Foreman Carl Boggs and said, "Huh, what is this, another one of these union meetings?" Renier replied that he was getting a drink. Gatke then spoke of the organization of respondent and stated that it was owned by him and that he had built it up and created jobs at good pay. He also said to Renier, "I understand you say you have got quite a part in this union " Renier replied that he was on the bargaining committee and secretary- treasurer. Gatke then declared, according to Renier, "Don't you realize you would be better off out of this outfit? . . . All they are after is to lake the working man's money, it is a no-good outfit." When Renier replied that he felt that lie had a right to join a labor organization just as Gatke had a right to join industrial organizations, the latter rolled up his sleeves and invited Renier out to an alley to "fight it out." Renier refused. Gatke and Boggs did not testify at the hearing Renier's testimony was not denied His testimony was corroborated by Hartman and Cutler, although they could not remember the details. Renier's testimony is credited The August 20, 1945 issue of the Union's publication, "United Construction Workers News," carried a story dealing with the report of the Tripartite Panel of the War Labor Board and also the course of the union activities at the plant. Gatke was singled out for criticism. On September 11, 1945, Gatke addressed a letter to Mikesell. It was stipulated that the letter was posted on a bulletin board at the plant shortly after Sepember 11, together with a photostatic copy of the afore-mentioned article :n the "News" and parts of the Panel Report men- tioned in the letter. It was further stipulated that the letter was substantially as follows : I have seen the article appearing in the U. C. W. News which accuses everybody the W. L. B. and Gatke Corp. all our employees who have not supported union activities and especially me. Claims are made for results that are not substantiated by facts and I think our people should know what the facts are I have had the article from the U. C. W. News photostated,, and likewise pages 7 and 8 of WLB report and recom. which constitute the summary. Please have these posted on the bulletin board so that those of our employees who are interested may know the truth. The record according to the panel report shows that we filed applications with the W. L. B. early in June 1944 asking for the approval of increased rate ranges. Had it not been for union interference and wages froze, and our only means of making our wage rates attractive was to provide more overtime pay. The panel's reports has been filed with the W. L B. in Washington and is not likely to have consideration for 6 or 7 months. It is our purpose to give our employees an opportunity to earn even more than the rates we applied for that have been recommended by the panel, and as soon as our job evaluation survey has been completed new rates will be established on a basis of what a man earns and these rates will be retro- active to Sept. 1 now that certain restrictions have been removed we are per- mitted certain freedom without union interference that permits us to com- plete a program that will increase workmens earnings so long as our own selling prices are not increased. This requires honest cooperation between employees and management with which the plan will work to the advantages of all who participate. Sincerely, /s/ Thomas Gatke, President. (Bd. Ex. 18) GATKE CORPORATION 347 b. Statements by Plant Manager Mikesell John Skees, then an employee, became president of the Union in January, 1945.8 He testified that in April, 1945, he made a remark in the wash room to the effect that the Union would adjust certain matters after it "came in " Shortly there- after, Mikesell summoned him to his office, Skees testified, and told him that lie had heard that Skees was making "remarks" and that those "remarks" were holding him back in the shop. This testimony, which was undenied, is credited. Renier testified that in June or July 1945 Mikesell spoke to him and asked him whether he did not realize that he would be better off out of the Union, that the union representatives only wanted his money. Mikesell denied making that statement. The undersigned was not impressed by Mikesell's testimony. It was not complete and it was often characterized by qualified denials and a failure to remember. Renier's testimony was in important respects unchallenged or corroborated by the testimony of other witnesses. His testimony as to this incident is credited. c. Other activities Employees Dora Brown and Merritt Coiling both testified that in January, 1946 they were approached by fellow employees during working time and asked whether they would sign papers indicating that they did not wish to be repre- sented by the Union. There is no evidence that this solicitation was done in the presence of any supervisor. However Coffing testified that "along in the last of January," and after this conversation, Bill Braddock, foreman in the shipping department, spoke with him at the time clock. Coffing summarized the conversation as follows: "He asked me if I understood the paper that was passed around the other day, and I told him that I did. He said he thought the war was over, and so was the War Labor Board, and he thought we could do away with the union now." Braddock did not testify and the testimony of Brown and Coffing is credited. Respondent, at the request of counsel for the Board, furnished a copy of a notice reading, "Mr Gatke re-affirms that it is not necessary to join a union to work here." Counsel for the respondent stated that, while he was not sure as to the date when this notice had been posted on the bulletin board, it had been posted for more than a year. Conclusions The evidence establishes that the respondent did not wish its employees to be represented by the Union and took steps to break up the Union's campaign. This movement was spearheaded by President Gatke. He conducted a campaign of disparagement of the Union and its members, he attempted to split the women employees from the ranks of the Union, and in his letter of September 11, 1945, declared that "union interference" was to blame for the failure of the workers to secure wage increases. Mikesell carried forward this campaign in talks with leaders of the Union. As to the anti-union petition circulated in January, 1946, the undisputed evidence establishes the fact that a supervisory employee knew of its circulation and encouraged that activity. Finally, the respondent posted a notice that employees did not have to join a union to work at the plant, but it neglected to assure the employees of their correlative right to join a labor or- ganization. The undersigned finds that by these and other acts afore-mentioned the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act s 6 He left the respondent 's employ in May 1945. H. J. Heinz Company v. N. L. R. B, 311 U S 514; Matter of Palm Beach Broadcasting Corporation, 63 N. L R. B. 597 ; Matter of Barlow-Money Laboratortes, Inc., 65 N. L. It. B. 928. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B The discriminatory discharge 1. The discharge of Leo S. Renier Leo Renier had been employed by the respondent from March, 1930 to May, 1935 He was reemployed on May 8, 1940, and worked continuously until his discharge in 1945.'° Renier's principal task was to act as daytime operator of certain mixing machines known as sheeter mixers. This involved his placing in the machines asbestos 'fibres, which he had previously treated at another ma- chine, rubber, and certain compounds, all in accordance with a prescribed formula. He then started the machines and operated them for a set period. When Renier commenced working in 1940 his salary was 35 cents an hour. He received small wage increases from time to time and at the time of his discharge he was re- ceiving 75 cents an hour. Renier was an active member of the Union He joined the Union in May, 1944, and shortly after the election held in July he was appointed a member of the bargaining committee and thereafter, secretary-treasurer of the Union. As a member of the bargaining committee, he attended two bargaining conferences with management. He also testified before the Tripartite Panel of the War Labor Board and related details of the acrimonious exchange between him and Gatke which has been previously considered. As secretary-treasurer of the Union, he collected dues, kept records, and notified the members of meetings. He also participated in organizing activity. The evidence establishes the fact that Reiner was a leader in the Union His activity did not pass unnoticed. Gatke's argument with him concerning the Union has been previously mentioned. Also Mikesell, the undersigned has found, attempted to dissuade him from con- tinuing his union activities. Renier was laid off on August 31, 1945. His uncontradicted testimony con- cerning this event is that on that day Mikesell summoned him to his office and said, "you know we are laying off help around here . . . you are next in line." Renier then asked for and received a statement of availability. This document indicated that Renier was being permanently laid off for lack of work. 2. The respondent's contentions; conclusions The respondent contended that in August, 1945, it was faced with suspension of war orders which were later cancelled and that it was forced to make a reduction in its work force The Board did not challenge testimony as to those circumstances, but rested its case on the motives of the respondent in selecting Renier for discharge. Renier, according to his undisputed testimony, was fourth in order of seniority of the 22 employees in his department. Mikesell admitted that Renier held a responsible post and was capable of per- forming other work in his department and had done so in the past, but he was not offered any other position when he was laid off. Mikesell testified concerning the respondent's selection of Renier for lay-off. Renier, he said, was selected because "he was not a desirable employee, and from the standpoint that he was, in a way, difficult to get along with, and fur- thermore, that he was rough with the machinery." The respondent introduced extensive evidence concerning maintenance diffi- culties with the sheeter mixer machines. Ford G. Johnson, maintenance engineer, 10 Renier, at first, testified that on his reemployment he filled out an application on which he was required to indicate his union affiliation . His application blank , which was intro- duced In evidence, did not contain such a question , and Renier admitted that he had been in error. It should be noted, however, that the basic facts concerning Renier's termina- tion of employment are not in dispute. GATKE CORPORATION 349 identified a report dated August 7, 1945, which he submitted to Mikesell. In his report, Johnson complained of repair trouble with the machines, declared that most of the breakage on the machines was due to careless operation, and stated that Renier threw in the clutches of the machines too hard. Johnson also testified that his opinion was based on his personal observation of Renier's work. Wayne Zolman, machine shop foreman, identified a report he submitted to Mikesell, dated August 10, 1945. Zolman, in his report, complained of a specific repair job on August 9 and remarked that "there must be some careless- ness in the handling of this machine and its clutches." Clyde Ruby, an oiler, testified that he observed Renier throw in clutches to the machines roughly. On cross-examination, he admitted that he had had no experience in the operation of the mixers and that his sole experience in the operation of clutches was confined to automobiles. Roy Smith, a maintenance employee, testified that he once saw Renier throw in a clutch too fast and reported that to Johnson, his supervisor. Mikesell him- self testified that he observed Reiner handling the machines roughly. Renier denied the testimony that he mishandled the machines. He affirmed that the mixers needed frequent repairs, but claimed that this circumstance was due primarily to their age and the requirement of their constant operation. The machines, he testified, were the same ones that had been in the plant when he first began working there in 1930. It is undisputed that during the inter- vening years they had required repair work, and parts fabricated at the factory had been attached to the machines Renier testified, and the undersigned credits his undenied testimony, that the machines were in such poor condition that on some occasions on instructions from his foi ernan, Carl Boggs, he had to wire the clutches to supports to prevent them from slipping. It also is undenied that the machines were kept in constant operation during the war years. Mikesell stated that they were operated 24 hours a day for approximately a year prior to V-J Day. Render maintained that he had never been criticized or reprimanded. No evidence to the contrary was introduced. In fact, Mikesell and the other wit- nesses who testified that he had mishandled the mixing machines stated that they had never spoken to Renier concerning his work nor was Renier's assertion contradicted that his foreman, Carl Boggs, had never criticized his work. Boggs was not called as a witness. No one investigated to find out whether the repairs to the machines were caused by the acts of Renier, the night operator, or were due to the condition of the machines. There is also room for doubt as to the part the reports on the maintenance difficulties played in the ultimate decision to lay off Renier. Mikesell testified that the decision to let Renier go was made "maybe a couple of months prior to the time that we let him go." He further testified that the original decision to release Renier was made because of Renier's "general attitude." As to Renier's attitude, Mikesell gave but one concrete instance On one occasion, he testified, Renier came to him to discuss his rate of pay and acted surly and slammed the office door when he left. Mikesell also claimed that lie received reports that Renier did not get along very well with the other men Again, as in the case of Renier's operation of machinery, no investigations were made of these reports nor was Renier criticized in any way. At the conclusion of the case, Renier's testimony that he had never been reprimanded remained undenied. Mikesell explained the failure to criticize Renier in the following words : Knowing the type of man and his connections, I assumed that if I com- menced, or if anybody commenced to ride him or tell him about his work he would right away say that we were picking on him because of his union 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliation. We laid off of him and decided when the opportunity came, when the opportune time came, as we anticipated it would come, that we would let him go. The evidence as to any poor work performance by Renier is extremely sketchy. Only one illustration was given by Mikesell of Renier's alleged bad "general attitude" and that example was a minor occurrence. There was a failure of proof as to Renier's alleged rough treatment of machinery. It is undisputed that he was operating old machines which had been extensively repaired in the past and which were being operated continuously to keep up with production demands. While breakdowns did occur, the undersigned finds that the evidence does not establish that these breakdowns were due to Renier's carelessness It is un- disputed that the respondent never investigated Reiner's operation of the ma- chines, nor did Renier receive any instruction or criticism. Renier was a leader in the Union. His activities were known to management and had led to a serious argument with Gatke. Mikesell had tried to persuade Renier to drop out of the Union. The undersigned concludes that Renier's union activities motivated his discharge. The respondent's attitude is illustrated by Mikesell's testimony that the determination to discharge Renier was made several months before the actual discharge and that action was withheld until an opportune time The necessity of a reduction in staff furnished the basis for the carrying out of this predetermined plan. It was not the underlying cause of the discharge. It is significant that, while the respondent did not have any seniority system, it passed over employees junior to Renier who performed less responsible work. The undersigned finds that Leo S. Renier was discharged because of his union membership and activities. IV. THE; EFFECT OF THE UNFAIR LABOR PRACTICES 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 be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act It has been found that the respondent, by its supervisory personnel, interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed under the Act by disparaging the Union and its members, by making other anti-union remarks, by posting a notice to the effect that employees did not need to join a union without advising them of their freedom to do so if they wished, and by acquiescing in the circulation of an anti-union petition It has also been found that the respondent discharged Leo S. Renier because of his union membership and activities It has been further found that the respondent re- fused to bargain with the Union in violation of the Act. President Gatke, who repeatedly declared to the employees that lie was the sole beneficial owner of the business, took the leading part in the anti-union activites of the respondent and by his conduct at bargaining conferences and elsewhere evinced a determination not to bargain in good faith with the Union and to prevent union organization. The totality of the respondent's conduct is indictative of "persistent efforts by varying methods to interfere with the right of self-organization" in circum- GATKE CORPORATION 351 stances which contain "the threat of continuing and varying efforts to attain the same end in the future." " Because of the respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor prac- tices are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the re- spondent's conduct in the past The preventive purpose of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, there- fore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Since it has been found that the respondent has discriminated in regard to the hire and tenure of employment of Leo S Renier, it will be recommended that the respondent offer him immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority and other rights and privileges.'2 It will be further recommended that the respondent make him whole for any loss of pay that 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 he would have earned as wages from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings" during said period. It has been fou id tl at the respo dent ,,as reused to bargain collectively with the Union as the representative of its employees in an appropriate unit. In order to effectuate the policies of the Act, the undersigned will recommend that, upon request, the respondent bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, in respect to rates of pay, wages, hours, and other terms and conditions of employment 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. United Construction Workers of America, affiliated with United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Leo S. Render, thereby discouraging membership in the Union, the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (3) of the Act. 3 All of the respondent's production and maintenance employees at the plant, including the shipping room clerk and the watchman, but excluding office and clerical employees, foremen, supervisors, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit N L R B v. Express Publishing Company , 312 U S 426, 438 " Matter of Chase National Bank , 65 N. L R. B. 827. 13 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 8 N L It B 440 Monies received for work performed upon Federal, State, county , municipal , or other work-relief projects shall be considered as earn- ings. See Republic Steel Corporation v N L. R B , 311 U S. 7. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate for the purposees of collective bargaining within the meaning of Section 9 (b) of the Act. 4 The Union was on December 6, 1944, and at all times thereafter has bden, and now is the exclusive representative of the respondent's employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5 By refusing on December 6, 1944, and at all times thereafter, to bargain col- lectively with the Union as the exclusive representative of its employees in the aforesaid appropriate unit the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 6 By interfering with, restraining, -and coercing its employees in the exercise of 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 within the meaning of Section 2 (6) and (7) of the Act. 8. By granting wage increases, promotions, and reclassifications, the respond- ent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that Gatke Corporation, Warsaw, Indiana, its agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the Union, or any other labor organization of its employees by laying off, discharging, or refusing to reinstate any of its employees or refusing to employ any member of the Union or in any other manner discriminating in regard to hire and tenure of employment or any terns or condition of employment; (b) Refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in the unit heretofore found appropriate, with respect to rates of pay, wages, hours, and other terms and conditions of employment ; (c) In any manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Union, 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 pro- tection 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) Offer to Leo S. Renier immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (b) Make whole Leo S. Renner 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 he would normally have earned as wages from the date of the discrimination to the date of the respondent's offer of reinstatement, less his net earnings " during said period ; (c) Upon request, bargain collectively with the Union as the exclusive rep- resentative of all its employees in the afore-mentioned unit in respect to rates of pay, wages, hours, and other terms and conditions of employment ; 14 See footnote 13, supra. GATKE CORPORATION 353 (d) Post immediately at its plant at Warsaw, Indiana, copies of the notice attached to the Intermediate Report herein, marked "Appendix A" Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the respondent's representa ive, be posted by respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all bulletin boards and other 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 ; (e) Notify the Regional Director for the Eleventh Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply therewith ; (f) It is also recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the complaint, insofar as it alleges that the respondent violated the Act by granting wage increases, promotions, and re- classifications be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report 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 four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, 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. As further provided in said Section 33, 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 the order transferring the case to the Board. SIDNEY L. FEr.ER, Trial Examiner. Dated March 18, 1946. APPENDIX A 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 employees in the exercise of their right to self-organization , to form labor organizations, to join or assist United Construction Workers, affiliated with United Mine Workers of America 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. 701592-47-vol. 69-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will offer to the employees named below immediate and full reinstate- ment 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 under- standing in a signed agreement . The bargaining unit is: All of the respondent's production and maintenance employees at the plant including the shipping room clerk and the watchman , but excluding office and clerical employees, foremen, supervisors , and all other supervisory employees with authority to hire, promote, discharge , discipline, or other- wise effect changes in the status of employees , or effectively recommend such action. Employee To Be Reinstated Leo S. Renier All our employees are free to become or remain members of the above-named anion 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. GATKE CORPORATION, Employer Dated--------------------------------- By ------------------------ (Representative) (Title) NOTE.-Any of the above-named employees presently serving in the armed forces ,of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof , and must not bealtered, defaced, or covered by any other material.