Wingert Contracting Co., Inc.

In the Matter Of WINGERT CONTRACTING CO., INC. and UNITED MINE WORKERS OF AMERICA, DIVISION 5-DISTRICT No. 6 and COMPANY UNION OF WINGERT CONTRACTING COMPANY (PARTY TO THE CONTRACT) Case No. 8-C-1870.-Decided January 23, 1947 Mr. John A. Hull, Jr., for the Board. Messrs. J. Campbell Brandon and William C. McE1vain, of Butler, Pa., for the respondent. Mr. P. W. Tetlow, of Columbus, Ohio, for the Union. Miss Melvern R. Krelow, of counsel to the Board. DECISION AND ORDER On August 13, 1946, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent, Wingert Contracting Co., Inc., 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 Intermediate Report attached hereto. No exceptions to the Intermediate Report or briefs were thereafter filed with the Board. On December 17, 1946, the Board heard oral argu- ment at Washington, D. C. The respondent appeared and partici- pated in the argument; none of the other parties appeared. 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 Inter- mediate Report, the arguments advanced at oral argument, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the exception noted below : We do not agree with the Trial Examiner that Wingert's statements to Organizer Kostecka on November 7, 1945, as fully set forth in the Intermediate Report, were violative of Section 8 (1) of the Act, especially as Kostecka was not an employee of the respondent and as the statements were not made in the presence, or within the hearing, 72 N. L. R. B, No. 47. 244 WINGERT CONTRACTING CO., INC. 245 of any employee . However, we agree that the statements of Wingert were properly considered and relied upon by the Trial Examiner in connection with his finding that the respondent refused to bargain collectively with the Union , within the meaning of Section 8 (5) of the Act. 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, Wingert Contracting Co., Inc., Butler, Pennsylvania , and its officers, agents , successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Mine Workers of America, Division 5-District No. 6, as the exclusive representative of all production and maintenance employees of the respondent employed at its Caldwell operations , including the supply truck driver, but excluding supervisory employees with authority to hire, promote, dis- charge, discipline , or otherwise effect changes in the status of employ- ees, or effectively recommend such action, with respect to wages, rates of pay, hours of employment, or other conditions of employment; (b) Dominating or interfering with the administration of Com- pany Union of Wingert Contracting Company, or with the formation or administation of any other labor organization of its employees, and from contributing financial or other support to Company Union of the Wingert Contracting Company or any other labor organization of its employees; (c) Giving effect to any and all contracts , supplements thereto or modifications thereof, with Company Union of Wingert Contracting Company ; (d) Discouraging membership in United Mine Workers of America, Division 5--District No. 6, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employ- ees, or by discriminating in any other manner in regard to their hire, or tenure of employment, or any term or condition of their employment; (e) 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 United Mine Workers of America, Division 5-District No. 6, 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. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Mine Workers of America, Division 5-District No. 6, as the exclusive representative of all production and maintenance employees employed at the respond- ent's Caldwell operations, including the supply truck driver, but excluding supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement; (b) Withdradv all recognition from, and completely disestablish, Company Union of Wingert Contracting Company as the representa- tive of any of its employees for the purpose of dealing with the respondent concerning grievaalces, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment; (c) Offer to Fred Balbinot and Sam Manghizi immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (d) Make whole Fred Balbinot and Sam Manghizi for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date on which the respondent discrimi- natorily refused to reinstate him to the date of the respondent's offer of reinstatement, less his net earnings during said period; (e) Post at its mining operation in Noble County,, Ohio, and at its office in Caldwell, Ohio, copies of the notice attached to the Inter- mediate Report, marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respondent's representative, be posted by it 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 other material; (f) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. Said notice, however, shall be, and it hereby is, amended by striking from the first para- graph thereof the words "Recommendations of a Trial FBxaminer " and substituting in lieu thereof, the words "A Decision and Order"_; and by inserting in the last paragraph thereof, following the words "United Mine Workers of America ," the words • "Division 5-District No. 6 " In the event this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted , before the words, "A Decision and Order ," the words • "A Decree of The United States Circuit Court of Appeals Enforcing " WINGERT CONTRACTING CO., INC. INTERMEDIATE REPORT 247 Mr John A. Hull, Jr., for the Boa' d Messrs. J. Campbell Brandon and William C 11IcEluaui, of Butler, I'a, for the Respondent. Mr. P. W. 'Fellow, of Columbus, Ohio, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on March 11, 1946, by United Mine Woikers of America, Division 5-District No 6, herein called the Union, the National Labor Relations Board, herein called the Board. by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint against Wingert Contracting Co, Inc, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (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, the charge, and notice of hearing were duly served upon the Respondent, the Union, and the Company Union of Wingert Contracting Company, herein referred to as the Company Union. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent: (1) on or about November 7, 1945, by its officers and agents, deprecated and vilified the members and representatives of the Union, and on or about November 26, 1945, urged, persuaded, and ordered its employees to cease their activity in behalf of the Union, withdraw their membership in the Union, and join the Company Union; (2) in November 1945, initiated, formed, sponsored, and promoted the Company Union and thereafter assisted, dominated, contributed to the support of, and interfered with its administration ; (3) on or about December 3, 1945, discharged Fred Balbinot and Sam Manghizi because of their membership and activity in behalf of the Union;' (4) at various times during the months of October and November 1945, refused to bargain collectively with the Union as the exclusive representative of its employees in a certain appropriate unit, although a-majority of its employees in the said unit had designated the Union as their representative for such purposes; and (5) by the foregoing acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act Neither the Respondent nor the Company Union filed any answer to the complaint. Pursuant to notice a hearing was held at St. Clairesville. Ohio, on July 8, 1946, and at Caldwell, Ohio, on July 9, 1946, before the undersigned Trial Examiner, Sidney Lindner, duly designated by the Chief Trial Examiner. The Board, the Respondent, and the Union were represented and participated in the hearing. The Company Union did not enter an appearance nor did it participate in the hearing All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the testimony with respect to the issues herein, the undersigned denied the motion of Respondent' s counsel for a dismissal of the complaint on the ground that the Respondent is not engaged in interstate commerce and not within the jurisdiction of the Board. All of the parties participated in oral argument at the conclusion of the taking of testimony. Counsel for the Re- spondent thereafter filed a brief with the undersigned. 1 Although the complaint alleges November 30, 1945, as the date of the discharges, the proof reveals the date as above, and was corrected by motion of counsel for the Board to conform the pleadings with the proof , which was granted by the undersigned , without objection. 248 DECISIONS OF NATIONAL LABOR RELATION'S BOARD Upon the entire record in the case and from his observation of the witnesses, the undersigned makes, in addition to the above, the following: FINDINGS OF FACT / 1. THE BUSINESS OF THE RESPONDENT Wingert Contracting Co., Inc., is a Pennsylvania corporation having its prin- cipal office and place of business at Butler, Pennsylvania. It is engaged in stripping coal in Pennsylvania, and in Noble County, Ohio, near the city of Cald- well. This proceeding is concerned with the employees of the Respondent's mining operation in Ohio. During the course of its business operations in Ohio,' the Respondent purchased and received machinery of a value in excess of $50,000, all of which machinery was transported to the Ohio operation from States of the United States other than the State of Ohio. During the period October 1, 1945, to March 1, 1946, the Respondent, under contract, stripped and produced 14,662 tons of coal and loaded the same into trucks furnished by other parties, which coal was hauled to a tipple in Dexter City, Ohio, and loaded into railroad cars furnished by the Pennsylvania Railroad Company. After the coal is loaded by the Respondent into the trucks furnished by other parties, it has no interest in the ownership, transportation, or shipment of the coal. In about October 1944, the Respondent leased machinery of a value in excess of $90,000, to the Wingert Engineering Company to be used in the latter's opera- tion at Lafferty, Ohio. The said machinery was transported by the Respondent from the State of Pennsylvania to the operation of the Wingert Engineering Company in Lafferty, Ohio. In October 1945, the Respondent received the return of its machinery at Lafferty, Ohio, upon the termination of the operations of the Wingert Engineering Company. Counsel for the Board introduced testimony at the hearing which revealed that part of the coal stripped and mined by the Respondent was eventually Shipped to the Cleveland Electric Illuminating Company, Republic Steel Corpora- tion, Nickel Plate Railroad, and New York, Chicago, and St Louis Railroad Contrary to the contention of the Respondent the undersigned finds that the Respondent at the time of the events herein related, was engaged in commerce within the meaning of the Act.' II. THE LABOR ORGANIZATION INVOLVED United Mine Workers of America, Division 5-District No. 6, and Company Union of Wingert Contracting Company, unaffiliated, are labor organizations admitting to membership employees of the Respondent. 111. THE UNFAIR LABOR PRACTICES A. Sequence of events In the latter part of 1944, Lloyd Wingert, ltresident and treasurer of the Wingert Contracting Co., Inc , the Respondent herein, individually entered into a partnership with one, Albert A. La Valle, for the purpose of conducting a strip mining operation near Lafferty, Ohio. The partnership conducted its business 2 The Respondent started its operation in Ohio in or about October 1945.• 'See Matter of Joseph Strenael d/b/a Crow Bar Coal Company, 48 N. L R B 660, enf'd 141 F (2d) 317 (C C. A 10) See also Peter Kaeivit Sons' Co., 67 N L R. B 1439. * The following findings are based on admitted facts or credible testimony which, except where otherwise indicated, was not substantially contradicted. WINGERT CONTRACTING CO., INC. 249 under the firm name of Wingert Engineering Company, and leased the equipment used in its operation, on a monthly rental basis from the Respondent. In January 1945, the Union and the Wingert Engineering Company executed a closed-shop contract, which also provided for a check-off of union dues. The signatories to this contract were Lloyd Wingert in behalf of the Wingert Engi- neering Company, and Joseph Kostecka, International Representative, in behalf of the Union. Sometime during the month of October 1945, the Wingert Engineering Com- pany terminated its operation near Lafferty. The partnership was dissolved and the machinery used on this operation was removed by the Respondent, part of it being shipped to West Virginia,' and the remainder to a new operation which was being undertaken by the Respondent near Caldwell, in Noble County, Ohio. Most of the-partnership's employees went to work at the new operation in Noble County s About October 25, 1945, according to the testimony of Fred Balbinot, an oiler in the employ of the Respondent.' and secretary of the local Union, he received two pay checks while employed in the op'bration at Caldwell, one from the Wingert Engineering Company which revealed that his union dues were checked off, and the other from the Respondent for his full pay with no check-off. Balbinot, thereupon, notified the sub-district office of the Union to this effect. Kostecka came to Caldwell to inquire into the matter, and in his efforts to straighten it out, endeavored to meet with Lloyd Wingert On November 5 and 6, Kostecka requested Arthur Johns, the Respondent's superintendent, to arrange for such a meeting Johns said that he would, as soon as possible, but that Wingert was not in Caldwell On November 7, Kostecka saw Wingert in Dexter City where the Respondent was unloading a drag line from a railroad car. Kostecka introduced himself, stating that lie represented the United Mine Workers and asked Wingert if he had the time to discuss "certain matters " Wingert stated that he did not have the tinge, that he as too busy Kostecka then asked foi a meeting with Wingert within a day or two, and Wingert said, according to Kostecka, "that he did not have time and would not have time for a week ; and that he did not have no business to talk over with me; that it was just a lot of bullshit, and he did not have time to discuss that." Kostecka told Wingert that it was a business matter with the Union on which an understanding was required' ' Within several hours after the above-noted conversation, the Respondent's employees held a meeting where it was decided to give Wingert 1 week within which to work out a satisfactory settlement. At the same time a committee of three employees' was appointed to wait on Wingert and notify him of the results ' The machinery which was shipped to West Virginia was leased by the Respondent to another party engaged in a strip-mining operation near Summersville , West Virginia. "The record reveals that for the pay-roll period October 1 to 15. when the Respondent started its operation in Noble County, of 7 employees, 6 had worked at the Lafferty opera- tion For the pay-roll period October 15 to 31, of 11 employees, 8 had worked at Lafferty, and for the November 1 to 15 pay-roll period, of 18 employees, 8 had worked at Laffeity ' Balbmot was employed by the Wingert Engineering Company at Lafferty and was one of the first to work at the Respondent 's operation in Noble County . His discharge from the Respondent's employ will be discussed hereinafter 8 Wingert admitted a conversation with Kostecka on November 7. In his version of the conversation Wingert testified that Kostecka introduced himself by name and said lie wanted to talk with Wingert Wingert said he was busy and would be real busy for the balance of the week, and Kostecka said, "I have something of interest to talk to you about" Wingert answered that he did not have the time The undersigned credits Kostecka's version of the conversation with Wingert. O The committee consisted of Harold Merritt , Dail McLaughlin and Sam Manghizi The latter's discharge will be discussed hereinafter 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the meeting After woiking hours that same day, the committee tried to see Wingert, who refused to talk to them, stating that he would not have anything to do with the committee 10 The committee called on Johns at his home that evening, told him of their desire to meet with Wingert for the purpose of dis- cussing a contract and the working conditions on the Caldwell operation. At the same time they advised Johns that if Wingert did not meet with the men by November 13, they were going to strike. Although Johns conveyed this message to Wingert, and told the committee that Wingert would meet with them, no such meeting was ever held, since Wingert left Caldwell either on November 7, or the day after and did not return until November 28. On November 13, after working hours, all of the employees again met, and were notified of the Respondent's refusal to meet with the committee or the Union, whereupon they decided to cease work Kostecka_ testified that prior to the November 13 meeting, he talked with Johns on several occasions to determine if Wingert was going to meet with the Union and he was told that Wingert could not be gotten hold of. Kostecka testified further, and the under- signed finds, that on these occasions he talked with Johns about recognizing the Union and was told by Johns that he (Johns) did not have the authority to deal with the matter of recognition and that Wingert would not deal with the Union'-' On the night of November 13, the union committee called on Johns at his home and notified him that the men were not going to work until they had a meeting with Wingert and some kind of an agreement. While the employees were thus engaged in the strike, Johns talked with Ralph Alishouse, a shovel operator for the Respondent, and president of the local Union, about the employees going back to work During this conversation at which several of the other employees were present, Johns told Allshouse that if the employees formed a company union things would go on as previously, that there would be no cut in wages, and working conditions would be better. They also discussed generally the advantages and disadvantages of the Union and of a company union's Johns testified that during the period of the strike he and a number of the employees had several "chance meetings" along the highway. On November 26, while Johns and about 8 or 10 of the employees were holding such a "chance meeting" alongside the highway on Route 21 between Caldwell and Dexter City, Kostecka happened along in his car and noticing the men congregated, stopped to inquire what was taking place. Kostecka testified that Johns told the men he had received instructions from Wingert to get them to form a company union, and go to work, and if the men did not conform, Wingert would park the machinery and leave it set for the rest of the winter."' 10 This finding is based on Manghrzi 's testimony which the undersigned credits Wingert denied that he was asked to meet with the men or with anyone representing the Union on November 7, after his talk with Kostecka . His denial is not credited. 11 Johns testified that he told Kostecka that Wingert would not deal with the Union as long as the Union was represented by Kostecka . With the exception of the above state- ment, Johns corroborated Kostecka 's testimony regarding the several conversations prior to the November 13 meeting 12 The findings in this paragraph are based on a recapitulation of the testimony of Johns and Allshouse. 13 Although at one point in his testimony Johns denied that he told the men at this meeting they would have to form a union , that it was merely a matter of getting together and getting back to work, he in effect corroborated Kostecka ' s testimony as is evidenced from the following : Q It had gotten to the point , had it not where Mr Wingert felt something had to be done. He was either going to have to shut the operation down or form this new Union and go back to work? A That is right WINGERT CONTRACTING CO., INC. 251 Allshouse, in corroboration of Kostecka's testimony with respect to the Novem- ber 26 meeting, testified that Kostecka came along while the meeting was in progress, that Johns said that Wingert would not deal with the Union, but would recognize a company union. He testified further that Johns said if the men would organize a company union and go back to work, the scale of wages would be the same as it had been before the strike. Allshouse also testified that on another occasion he talked with Johns about the formation of a new organization. Johns admitted that he advised Allshouse that the employees might take a vote, then have an election of officers and form the new organization. The testimony of Kostecka and Allshouse is credited. On November 27, the employees met in a garage in Moundsville to vote on the question of a company union. The meeting was presided over by Allshouse who had called the employees together. No discussion was had on the question. The employees were given slips of paper on which they wrote yes or no, and the vote was in favor of the Company Union. The employees then proceeded to organize their new union and elected Allshouse as president and Starr as treasurer. A committee was appointed and met with Johns that evening, and arranged to meet Wingert the following day. Kostecka learned of the formation of the Company Union, the day it was organized. Late that evening, Kostecka called on Johns at his home and notified him that the Union had called off the strike and wanted all of the men to return to work. According to Kostecka's uncontradicted testimony which the under- signed credits, Johns said the Respondent needed 2 or 3 days before it could get into shape and would notify the men to report for work as they were needed" On the night of November 28, a committee of eight employees met with Wingert, Brandon, the Respondent's attorney, and Johns at the latter's home. The committee submitted a memorandum of wages and working conditions to Wingert. This memorandum was incorporated into a contract which was hand- written by Attorney Brandon that evening, as follows : Memorandum of Agreement made this 28th day of November 1945 by and between the Wingert Contracting Co Inc. herein referred to as the operator and the Company Union of the Wingert Contracting Co. herein referred to as the Union. It is hereby virtually agreed as follows: operator will pay the following schedule of wages- $1 92 per hour for all shovel and drag line operators $1.34 per hour for all oilers $1 25 per hour for all Bulldozer operators $1.50 per hour for apprentice operators for a period not to exceed 90 days $0 90 per hour for apprentice oilers for a period not to exceed 30 days All of the above wages to be paid on basis of 7 hours straight pay per day and one and one quarter hours at time and one half. $1 25 per hour for welders $1 00 per hour for supply men and drivers 800 per hour for all labor Footnote 13-Continued Q. And that is what you told the men at that meeting? A Yes and I was instructed to find out whether they were going to go back soon or get the machines into shape for the winter. . . . + * * s t w Q And con told them what lie wanted was some action, some kind of a union? A That is right 14 In corroboration of Kostecka's testimony, Johns testified that he promised to advise the men when to report back for work. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wages for welders, supply men and drivers and labor shall be on basis of 40 hours per week and time and one half for over time. No difference shall be paid on any wages for different shifts. In case of an employee feeling he had been unjustly dealt with in regards to employment or discharge he can present his case to the superintendent. If no satisfactory agreement is reached then his case can be presented to .the steward or committee and they in turn shall try to reach an agreement with the superintendent. If no agreement is reached then the committee shall wait on the head of the Company. If the head of the company and committee cannot reach an agreement and the employee and committee still feel there is not a satisfactory adjustment then there will be one member of the union, the bead of the company or his representative chosen to meet and select one person not interested to sit in on the case ano make a final de- cision. The union has fixed its initiation fee at $2 00 and monthly dues at $1.00 and authorized and directs the operator to deduct such fees and monthly dues from the employees pay and remit the same to the financial secretary and treasurer. Upon written notice delivered in personly (sic) or by registered mail to the operator and union either side shall after twenty days fix a day for meeting for discussion of changes in the scale of wages or other provisions of this agreement. WINGERT CONTRACTING Co. INC, By (S) L. I. WINGERT, Pres. COMPANY UNION, (S) RALPH E. ALLHOUSE, President. (S) J. HERMAN STARK, Secretary. The following morning November 29, all of the employees with the exception of Balbinot and Manghizi returned to work. On November 30, Kostecka went to Caldwell to find out how things had worked out, and while there, was told by one of the employees that Balbinot and Mang- hizi were nct working. Kostecka then notified them at their homes on December 2, that the operation had resumed and to report to Caldwell to see about their jobs.16 In the late afternoon of December 3, Balbinot and Manghizi reported to Johns in Caldwell and told him they were ready to report for work. According to both men, Johns said that he had hired other men in their places, that they were "troublemakers" and "agitators" and he had no jobs for theca. Both Balbinot and Manghizi then left and have not worked for the Respondent since.1e 16 Balbinot and Manghizi resided in Lafferty, Ohio, which is about 75 miles from Cald- well. While on the job in Caldwell, they lived in a boarding house nearby. During the strike, however, they returned to their homes, and it is undenied that no one in Re- spondent's supeivisory hierarchy notified them to return to work. 16 Johns, testifying regarding his veision of the conveisation with Balbinot and Manghizi on Decembet 3, stated that both men met him about 4: 30 p in and asked if the employees had returned to work Johns asked if they had not known the job had started. When they answered "No," Johns said they surely must have known, since they had been at the roadside stand on the night of November 28, when the signed contract was read, and at that time it was generally known among the men that they were going to return to work the next day Johns categorically denied that the Union was mentioned in this conversa- tion. The undersigned does not credit his denial and finds that in substance he made the statements attributed to him by Balbinot and Manghizi. 0 WINGERT CONTRACTING CO., INC. Conclusions A. The retusal to bargain 1. The appropriate unit 253 The complaint alleges and at the hearing the parties stipulated that all of the production and maintenance employees of the Respondent including the supply truck driver, exclusive of all supervisory employees with the right to hire, promote, discharge, discipline or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. The undersigned finds that the above-described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes 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 At the hearing the parties entered into a stipulation as follows: that the Re- spondent's pay roll for the period October 1 to October 15, 1945, inclusive, shows that 7 persons were employed in the appropriate unit, and that all 7 employees had signed membership cards designating the Union as their collective bargaining representative ; that the Respondent's pay roll for the period October 16 to 31, 1945, inclusive, shows that 11 persons were employed in the appropriate unit, and that 10 of the 11 employees had signed membership cards designating the Union as their collective bargaining representative ; that the Respondent's pay roll for the period November 1 to 15, 1945, inclusive, shows 17 employees in the appropriate unit, and that all 17 employees had signed membership cards designating the Union as their collective bargaining representative ; that the Respondent's pay roll for the period November 16 to 30, 1945, inclusive, shows 15 persons employed in the appropriate unit, and that 14 of the said 15 em- ployees had signed membership cards designating the Union as their collective bargaining representative's The undersigned finds that during October and November 1945, and at all times material thereafter, the Union was and now is the duly designated representative of a majority of the employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act, the Union at all such times was and now is the exclusive representative of all its employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. The refusal to bargain The Respondent defends its refusal to bargain upon the following contentions : (1) that since the contract between the Union and the Wingert Engineering Company did not carry over to the Respondent's operation at Caldwell, there " In connection with the above stipulation , the parties further stipulated that of 16 union membership cards of employees of the Respondent, 8 of said cards were signed in January 1945, listing the employer as Wingert Engineering Company, and the remaining 8 cards were signed during October or November 1945, listing the Respondent as the em- ployer. Kostecka's u neon tradicted testunonv , which the undersigned credits, is that the Union did not at any time receive a resignation either orally or in writing from any of the Respondent's employees who had become members of the Union either at Lafferty or -at Caldwell. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was no bargaining agent named by a majority of its employees whom it was bound to recognize or with whom it could deal; and (2) that the election at which the employees voted on the question of whether or not to form a company union resulted adversely to the Union. When Kostecka learned that union dues were riot being checked-otf , he went to see Wingert on November 7, for the purpose of ascertaining why the Union was not being recognized by the Respondent Although Kostecka at this meeting was evidently under the misapprehension that the Union 's contract with the Wingert Engineering Company carried over to the Respondent , nevertheless, the adamant and arbitrary position taken by Wingert in refusing to discuss the Union at all , prevented Kostecka from exploring this problem arid of learning the Respondent's position that the Caldwell operation was being run by a different entity than the Wingert Engineering Company and that the latter's contract did not apply to it. However , it is clear from what occurred thereafter, that the Union abandoned its reliance on the Wingert Engineering Company contract , because as shown above, the union committee which saw Johns on the evening of the same day that Kostecka was met with Wingert 's refusal to discuss the Union , told Johns in no uncertain terms that unless the Union could meet with Wingert and obtain a new contract concerning the working conditions at the Caldwell operation they would go on strike." Furthermore, the Union's request for a new contract was conveyed to Wingert by Johns . During the period from November 7 to 13, Kostecka on several occasions talked with Johns about recognizing the Union and was told that Wingert would not deal with the Union Again on November 13, the Union informed Johns that the employees were going to cease work until they could reach some agreement with Wingert While it is a bargaining representative 's duty, when an employer in good faith questions its majority status , to offer proof, in the instant case the Respondent did not at any time dispute that the Union represented a iajority of the employees Furthermore, Wingert's conduct at the November 7 meeting, and his departure from Caldwell, designedly and effectively prevented any % further discussion on this issue In any event , it is clear that at all times pertinent herein , the Union represented a majority within an appropriate unit When on November 13, all of the employees ceased work because the contract which the Union had requested for the Caldwell operation was not forthcoming, then certainly the Respondent could not have had any doubt with respect to this issue. It is clear from all of the facts and the undersigned finds that the Respondent knew that the Union was requesting exclusive recognition and its majority status was demonstrated in no uncertain manner when all of the employees struck on November 13. The undersigned finds the Respondent 's first contention without merit. During the strike, as hereinafter found, the Respondent initiated and sup- ported a company dominated union As a result of such unfair labor practices the Union 's majority was dissipated . The Respondent 's second contention that the employees voted adversely to the Union does not require any extended dis- cussion, for it is clear that where the Respondent 's conduct has brought about the loss of the Union 's majority status it is not available as a defense to the charge that there had been an unfair labor practice committed under Section 8 (5) of the Act .18 This contention is without merit. 18 That Johns was the proper Respondent's official upon whom a request to bargain should be made by a labor organization is clear. Not only was Johns the superintendent and during Wingert 's absences in complete charge of the operation, but in fact he was the Respondent's only supervisory employee at the operation. 1° See Medo Photo Supply Corp. V. N. L. R B., 321 U S. 678. WINGERT CONTRACTING CO., INC. 255 To the undersigned it appears clear that the Respondent's acts demonstrate that it never intended in fact to bargain with the Union. As was stated by the Court in the Remington-Rand case," the Respondent "made no effort to learn the facts and took the chance of what they might be." In view of the foregoing and upon the entire record herein the undersigned finds that the Respondent on November 7, 1945, and all times thereafter refused to bargain collectively with the Union as the exclusive representative of its em- ployees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Domination and support of the Company Union It is undisputed that during the period of the strike, Johns told a number of the employees that if they formed a company union, working conditions would be better and the employees would not suffer any cut in wages. Further, as heretofore found, Johns threatened that if the men did not organize a company union and return to work, they would lose their employment because the Re- spondent would store the machinery for the rest of the winter. In furtherance of its plan, Johns gave Allshouse advice as to the method the employees might use to form the Company Union. Shortly thereafter, Allshouse called a meeting of the employees where the only business conducted was the vote on whether or not to form a company union, without any discussion on the subject. It is clear from the above and from the further fact, as heretofore found, that the Respondent refused to recognize and bargain with the Union, that the em- ployees had no alternative other than to vote for a company union if they wanted to continue their employment. In marked contrast to the Respondent's tactics of being "too busy" to meet with the Union, and of having no business whatsoever to discuss with it, Wingert, upon being notified by Johns on November 27, that a company union had been organized, retuined to Caldwell the following day to meet with the Company Union committee and draw up a contract. In fact, no time was lost in granting the Company Union a contract when Wingert, without controversy, accepted the memorandum on wages and working conditions submitted to him by the committee and incorporated the same in a contract which was written in long- hand by the Respondent's attorney who had come to Caldwell with Wingert to attend this meeting Nor did the Respondent rely entirely upon the prestige thus given the Com- pany Union, but insured the Company Union's financial stability by granting it a check-off of dues. It is evident from the testimony as a whole that the Company Union, although taking the form of a labor organization, was conceived and organized solely as a counter to the Union rather than as an organization intended to assume the role of a truly active independent bargaining agency. That it was so understood by the employees is proved by the inactivity into which the Company Union lapsed soon after its organization 21 The Respondent raised the contention during the hearing and in oral argument that the Company Union was spontaneously formed by its employees without any interference or suppoit on the part of the Respondent. The facts out- lined above, particularly those showing the active inteivention of Johns in the 10 N. L R. R . V. Remington Rand, Inc, 94 F (2d) 862 (C C A 2) 21 The Company Union does not have a constitution or bylaws . It has not held any meetings . nor has it taken up any grievances with the Respondent The only use to which it has put the check-off dues has been to purchase flowers on two occasions. 731242-47-col 72--18 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formation of the Company Union, effectively refute that contention. The fact that no supervisory personnel were present at the time the employees actually voted to form the Company Union does not absolve the Respondent of responsibility. For Section 8 (2) of the Act is not so narrowly interpreted as to require that direct link between the employees and the outlawed organization, but, must be broadly construed to cover any conduct upon the part of the employer which is intended to and has the normal effect of bringing into being, even indirectly, an organization which the employer considers favorable to his own interest. It is clear that the Company Union came into existence under "conditions or circum- stances which the employer created or for which [he] was fairly responsible and as a result of which it may be reasonably inferred that the employees did not have that complete and unfettered freedom of choice which the Act contem- plates." 22 Upon the entire record, it is concluded and found that the Company Union, a labor organization, is the creature of the Respondent, and that the Respondent has dominated and interfered with its formation and has contri- buted support to it, thereby interfering with, restraining, and coercing its eni- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discrimination as to Fred Balbinot and Sam Manghizi Balbinot and Manghizi were first employed by the Wingert Engineering Com- pany at Lafferty. Balbinot was one of the first employees to be transferred from the job at Lafferty to the Respondent's operation at Caldwell Manghizi was laid off by the Wingert Engineering Company after it terminated its job at Lafferty and about a month later was notified by Respondent's superintendent to report for work at the operation in Caldwell Both men were oilers and have had more than 30 years' experience in the coal mines and in stripping operations No question was raised by the Respondent as to the quality and quantity of their work. Balbinot was secretary of the local Union Manghizi was on the union coin- mittee which tried to-meet with Wingert and when rebuffed in this effort, spoke to Johns about the Union's demands and of their intention to strike Thus there can be no question concerning the Respondent's knowledge of their union menn- bership and activities. In fact, at or about the time the Company Union was formed, a sign "Unfair to Organized Labor" was painted on the Respondent's garage in Caldwell, and although Johns was not certain that Balbinot and Manghizi had painted the sign, he concluded, as he testified, that it must have been they.' Balbinot and Manghizi, who were members of the Union over 40 years, were also outspoken in their views against the Company Union, and since admittedly Johns was on very friendly terms with most of the other employees and openly discussed the formation of a company union with them, it is the reason- able inference that he became aware of this fact and the undersigned so finds The Respondent contends that Balbinot and Manghizi were not discharged ; that they were present at the election when the employees voted on the question of whether or not to form a company union and knew the results ; that they were present at a roadside stand after the Company Union had signed its con- tract with the Respondent and the men generally decided to return to work the following morning; that they refused to work under the Company Union ; that although work was resumed on November 29, Balbinot and Manghizi did not return until the evening of December 3, after they knew that the job had zz N L R. B v Link Belt Co., 311 U S 584, 588 za Johns' conclusion was based on the fact that the sign was painted with black paint which was seen in Balbinot's car, when both men were in it. WINGERT CONTRACTING CO., INC. 257 been started ; and their jobs were filled only after Johns had inquired of one of the other employees who said they should be replaced.24 The undersigned finds these contentions without merit. As found heretofore, Johns told Balbinot and Manghizi that he had no jobs for them because they were "troublemakers" and "agitators." Moreover, although the other employees returned to work on November 29, and there is testimony that Balbinot and Manghizi were at the roadside stand when the men discussed the contract that the Company Union had obtained, and it was generally understood that they would return to work the next morn- ing, November 29, nevertheless, the Respondent admittedly did not notify Bal- binot or Manghizi that the job was to start again, despite the fact that Johns told Kostecka that lie would notify the men when to return to work. That the strike of November 13, was an unfair labor practice strike is clear. Further- more, it is uncontradicted that Kostecka did not notify Balbinot and Manghizi until December 2, that the job had started again and the following day they left their homes in Lafferty to report to work. So that, in any event, when on December 3, Balbinot and Manghizi unconditionally applied for their jobs, they were still in the category of unfair labor practice strikers and as such were entitled to reinstatement, and Respondent's refusal to reinstate them was a violation of Section 8 (3) of the Act 26 Upon the entire record the undersigned is convinced and finds that Balbinot and Manghizi were discharged on December 3, 1945, because of their member- ship and activities in behalf of the Union and their opposition to the Company Union. D. Intertei ence, restraint, and coercion The Board alleged in its complaint that the Respondent by the acts and con- duct of Lloyd Wingert on or about November 7, 1945, deprecating and vilifying the Union, its members and representative, and by the statements of Johns on or about November 26, 1945, urging, persuading, and ordering its employees to cease their activity in behalf of the Union, to withdraw their membership in the Union and to join the Company Union, violated Section 8 (1) of the Act. The facts set forth in the section "Sequence of Events" establish these allegations. The foregoing review of the evidence convinces the undersigned, and the under- signed finds, that the Respondent, through the activities and statements of President Lloyd Wingert and Superintendent Johns, interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed under Section 7 of the Act. IV. THE EFFECT OF' THE UNFAIR LABOR PRACTICES UPON COMMEROE 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 tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow thereof. 21 Johns testified that he inquired of employee Herbert Merritt what to do about replac- ing the men since the job had started up again on Thursday and they were not there Monday. Merritt, according to Johns, said, "It looks as if we will have to get somebody else," and they were replaced . Merritt was asked his opinion because of his position as a committeeman of the Company Union en Ritzwoller Co. v N. L. R.. B , 114 F ( 2d) 432 (C. C. A. 7) , Stewart Die Casting Corporation v N. L. R B ., 114 F (2d) 849 (C. C. A 7). 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in 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 refused to recognize and bargain collec- tively with the Union ; therefore an order requiring the Respondent to bargain collectively, upon request, with the Union as the exclusive representative of the employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment, is necessary to effectuate the policies of the Act and will so be recommended. It has been found that the Respondent has dominated and interfered with the formation of the Company Union and has contributed support thereto. The effects and consequences thereof, as well as any continued recognition of the Company Union as the bargaining representative of its employees, constitute a continuing obstacle to the free exercise by its employees of their right to self- organization and to bargain collectively through representatives of their own choosing. Because of the Respondent's illegal conduct the Company Union is incapable of serving the Respondent's employees as a genuine collective bargaining agency. Moreover, the continued recognition of the Company Union would be obstructive of the free exercise by the employees of the rights guaranteed to them under the Act. While it is true that the Company Union has not functioned since November 28, 1945, after it entered into a contract with the Respondent, it has, nevertheless, never been dissolved and, as a matter of fact, still continues to receive the checked-off dues, and, in the eyes of the employees, is still viewed as the recognized exclusive bargaining agent. Accordingly, it will be recom- mended that the Respondent completely disestablish and withhold all recognition from the Company Union as the representative of any of its employees, for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment It is clear that the Respondent's contract of November 28, 1945, with the Company Union constituted and was part of the unfair labor practices. It will therefore be recommended that the Respondent be ordered to cease and desist from giving effect thereto. Nothing herein, however, shall be taken to require the Respondent to vary those wages, hours, seniority, and other such substantive features of its dealings with the employees themselves, which the Respondent has established in the performance of the said contract, or any revision, extension, renewal or modification thereof. It has been found that the Respondent discriminated in regard to the hire and tenure of employment and terms and conditions of employment of Fred Balbinot and Sam Manghizi. It will be recommended that the Respondent reinstate them to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and that the Respondent make them whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned- as wages from December 3, 1945, to the date of the Respondent's offer of reinstatement, less his net earnings during said period. 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. R B 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v. N L R. B., 311 U. S. 7. WINGERT CONTRACTING CO., INC. 259 As has been found above, the Respondent has employed diverse illegal methods, including refusal to recognize and bargain with the Union, domination and interference with the formation of a labor organization, and discriminatory discharges in furtherance of a general effort to frustrate and discourage union organization by its employees The varying methods employed by the Re- spondent disclose a propensity and a determination on the Respondent's part to engage in persistent efforts, although not necessarily by the same means, to continue to defeat self-organization by its employees. Because of the Respond- ent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices committed by the Respondent are related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the Respondent's conduct in the past The .preventive purposes of the Act will he thwarted unless the recommended order is coextensive with the threat In order, therefore, to make effective the inter- dependent guaranties 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 infring- ing upon the rights guaranteed in Section 7 of the Act 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 Mine Workers of America, Division 5-District No. 6, and Company Union of Wingert Contracting Company, unaffiliated, are labor organizations within the meaning of Section 2 (5) of the Act 2. All the Respondent's production and maintenance employees, including the supply truck driver, excluding supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of said employees, or effectively recommend such action, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. United Mine Workers of America, Division 5-District No 6, was on No- vember 7, 1945, and has been, at all times thereafter, the exclusive representa- tive of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4 By refusing to bargain collectively with the Union as exclusive representa- tive of all the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5 By dominating and interfering with the formation and administration of the Company Union and contributing support to that organization, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 6. By discriminating with regard to the hire and tenure of employment of Fred Balbinot and Sam Manghizi, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. The foregoing unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Wingert Contracting Co., Inc., Butler, Pennsylvania, its officers, agents, successors and assigns , shall: 1. Cease and desist from : (a) Refusing to bargain collectively with the United Mine Workers of America, as the exclusive representative of all the production and maintenance employees, including the supply truck driver, excluding supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Dominating or interfering with the formation and administration of or contributing support to the Company Union of the Wingert Contracting Coin- pany, or any other labor organization of its employees ; (c) Giving effect to any and all contracts, supplements thereto or modifica- tions thereof with the Company Union of the Wingert Contracting Company ; (d) Discouraging membership in United Mine Workers of America or in any other labor organization of its employees, by discriminating with regard to the hire, tenure or any term or condition of employment of any of its employees ; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act. (a) Upon request, bargain collectively with the United -Mine Workers of America as the exclusive representative of all production and maintenance employees, including the supply truck driver, exclusive of supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment and if an understanding is reached, embody such understanding in a signed agreement ; (b) Withdraw all recognition from and completely disestablish Company Union of Wingert Contracting Company as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (c) Offer to Fred Balbinot and Sam Manghizi immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (d) Make whole Fred Balbinot and Sam Manghizi for any loss of pay they may have suffered by reason of the discrimination against them , by payment to each of them of a sum of money equal to an amount determined in the manner set forth in the Section entitled "The remedy," above ; (e) Post at its raining operation in Noble County, Ohio, and at its office in Caldwell, Ohio, copies of the notice attached hereto and marked "Appendix A." Copies of the notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's representative, be posted by it 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 WINGERT CONTRACTING CO., INC. 261 by the Respondent to insure that said notices are not altered, defaced or covered by any other material ; (f) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith It is further recommended that unless on or before ten (10) days from the re- ceipt of this Intermediate Report, the Respondent notifies said Regional Director 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. 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 Ptules and Regulations, file with the Board, Rochanibeau 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 statement 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 pasty 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. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) clays from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director SIDNEY LINDNER, Trial Examiner. Dated August 13, 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 bargain collectively upon request with the United Mine Workers of America, Division 5-District No. 6, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including the supply truck driver and excluding supervisory employees with the right to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. We hereby disestablish Company Union of Wingert Contracting Company as the representative of any of our employees for the purpose of dealing with us con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. 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 or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Fred Balbinot Sam Manghizi 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 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. All our employees are free to become or remain mem- bers of this union, or any other labor organization. We will not discrimifiate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. Dated ------------------------ WINGERT CONTRACTING CO., INC., 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 accordance 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 be altered, defaced, or covered by any other material.