Reeder Motor Co.

REEDER MOTOR COMPANY 831 vote for the MC&S, they will be taken to have indicated their desire to be added to the steward department unit of the SS Silver Bow and may be represented by the MC&S as part of such unit. The SUP would include the chief steward in the voting group. The Employer has no-objections to his inclusion and the MC&S would leave this question to the Board. The chief steward assigns all over- time schedules, subject to final confirmation by the captain. He effectively recommends promotions. He does not have the power to hire but does have the authority to discharge and to effectively recom- mend discharge. Under these circumstances, we are of the opinion that the chief steward is a supervisor within the meaning of the Act, and we shall exclude him from the unit.' We shall direct an election among the employees in the steward department aboard the SS Permanente Cement, excluding the chief steward, professional em- ployees, guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] e Cities Service Oil Co. of Pennsylvania, 80 NLRB 1512, 1514. REEDER MOTOR COMPANY and LOCAL 900, INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. L. REEDER MOTOR COMPANY and JACKSON THEODORE PATTY AND CHARLES F. JONES. Cases Nos. 10-CA-1011 and 10-CA-10P2. October 16, 1951 Decision and Order On April 11, 1951, Trial Examiner Allen MacCullen issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings of the Trial Examiner made 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 exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications. I The Respondent's request for oral argument is hereby denied because the record, the exceptions , and brief, in our opinion adequately present the issues and the positions of the parties. 96 NLRB No. 112. 832 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD 1. We agree with the Trial Examiner, but for different reasons, that the Respondent refused to bargain with the Union in violation of Sec- tion8 (a) (5) and8 (a) (1) of the Act. . The record clearly establishes that on March 10, 1950, the Union represented a majority of the employees in an appropriate unit and, that Union Representative Holbrook, had so advised Reeder, Re- spondent's general manager. The Trial. Examiner found that, . con- trary to Reeder's testimony, Respondent's general manager did not raise any question as to the Union's majority status on March 10, 1950, when he met with Holbrook. As we are satisfied that this credi- bility resolution is not in conflict with a preponderence of the relevant evidence, we adopt it.2 On March 14, 1950, the eight employees who were members of the Union, including one Williams, who had been designated as shop steward by the Union, asked for a meeting with general manager Reeder and sales manager Kirby. At the hearing, in response to a question as to why the employees decided to have a meeting with Reeder, employee Childers, who acted as spokesman at the meeting, testified in part that "we decided if we could, we would stand on our own feet." Later in answer to a question as to whether the employees decided as a group to make the same demands as the Union on the Company, Childers testified that they were just going to see what they could do. At the meeting with Reeder and Kirby, the employees asked for a guaranteed minimum wage of $60 weekly, the discharges of Jones and Patty, a continuation of their vacation arrangement, and that the Company furnish uniforms and launder them. Reeder told the group that as a result of checking the garages in the vicinity he thought that $55 was the amount of guarantee justified. Reeder and Kirby left the room and the employees voted whether the amount should be $55 or $60. They decided it should be $60 and when Reeder and Kirby were so advised upon their return to the meeting, the $60 demand was accepted. No change was made in the vacation plan. With respect to the uniforms it was agreed that the Company would furnish them and the employees would have them laundered at home.8 The record clearly establishes, as the Trial Examiner found, that the Union was not mentioned by any of the parties at this meeting. A few days after the meeting with Reeder, Williams exhibited to Reeder an envelope which he said contained the resignations of all the em- ployees from the Union. Subsequently, this was mailed to and re- ceived by the Union. On March .16, 1950, Union Representative Holbrook, having heard nothing further from Reeder, mailed a formal written request dated March 15 to the Respondent for a conference to negotiate a contract concerning wages, hours of work, and other 2 See Wood Manufacturing Company, 95 NLRB 633. 3 Two or three days later this agreement was modified to'the extent that uniforms were to be laundered outside and were to be paid for on a 50-50 basis by the Company and the particular employee. REEDER MOTOR COMPANY 833 conditions of employment. This letter was delivered to- the'Itespond. ent on March 17. On March 18, 1950, Respondent's' attorney wrote a letter to the Union stating that "we are advised by our employees that your Union has not been designated to .represent them,," and suggesting that a Board election be held. Once a union has been designated as a statutory representative and an employer is put on notice of the union's majority status, the- Act not only imposes upon him the affirmative duty to. bargain collectively upon request, but requires him to abstain from subverting the desig- nated representative by direct dealings with individual employees 4 Moreover, contrary to the Respondent's contention, the obligation to treat with no one other than the known designated representative is applicable even though there is no specific request by the representa- tive to bargain .5 Clearly, it is a violation of the essential principle of collective bargaining and an infringement of the Act for an employer to disregard the statutory bargaining representative by negotiating with individual employees, whether they constitute a majority or minority, with respect to wages, hours, and working conditions, unless prior to such negotiations the employees have revoked their designa- tion of the bargaining agents In the instant case, after being recently advised by Holbrook that the Union claimed to, as it in fact did, represent a majority of the Respondent's employees, Reeder neverthe- less, and without raising any question as to the representative status of the Union, dealt with the employees. Such direct dealings with employees in derogation of the Union's preexisting exclusive repre- sentative status can be justified only by a showing that the employees had in fact revoked their prior designation of the Union. We turn therefore to the issue as to whether the employees had re- voked their designation of the Union as their bargaining representa- tive prior to or at the time of their meeting on March 14, 1950, with Reeder. The Respondent contends that the employees were not satis- fied with the treatment they were receiving from their representative and they withdrew from the Union of their own accord. However, we agree with the Trial Examiner that the record fails to establish that the employees had revoked their designation of the Union before their economic demands were met on March 14, 1950. While Childers' testimony indicates some dissatisfaction by the employees with the bargaining representative, it fails to show that they had decided to abandon the Union. Nor do we believe that their objective conduct in seeking out the Employer on their own initiative and bargaining with the Employer as a group without reference to the Union was in itself necessarily inconsistent with their previous designation of the Union so as to constitute an implied revocation of their prior designa- 4 L. R B v. Crompton-Highland Mills, Inc., 337 U. S 217; Allis- Chalmers Mfg. Co. v. -N. L. R B., 162 F. 2d 435. N. L. R. B v. Valley Broadcasting Company, 189 F. 2d 582. Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678. 834- DECISIONS OF NATIONAL LABOR RELATIONS BOARD- tion. On the contrary, we infer from Childers' testimony and the entire record that the employees did not intend to withdraw from the Union unless and until their demands were met and that other- wise they would have,continued as union members with the hope that the Union could secure in the impending negotiations what they themselves had been unable to obtain. In our opinion it is highly significant that only after and not before the meeting did the em- ployees take any unequivocal steps, such as writing or advising the Union or the Employer that they had resigned or circulating a petition for withdrawal from the Union. If a recently selected bargaining .representative is to be divested of its authority, we believe it reason- able to require that the withdrawal of such authority be evidenced by clear and unambiguous conduct and with the degree of certainty required to establish the original designation, for surely the neces- sary standards of proof in both these situations should be the same.? In view of the foregoing, we find that on March 14, 1950, the em- ployees had not revoked their prior designation of the Union as their ,bargaining representative and that by dealing directly on that day -with the employees in derogation of the authority of the statutory -representative the Respondent violated not only Section 8 (a) (1), as found by the Trial Examiner,,but also 8 (a) (5) of the Act. We also find, as did the Trial Examiner, that the employees' subsequent defection from the Union was induced solely by the Respondent's conduct in dealing directly with them and therefore cannot be re- garded as impairing the Union's majority status." It follows, that the Respondent's subsequent refusal to comply with the Union's written request to bargain dated March 15, 1950, constitutes an addi- -tional and independent violation of Section 8 (a) (5) and (1), and we -so find. 2. The Trial Examiner found, and we agree, that the Respondent by discharging Jones and Patty violated Section 8 (a) (1) and (3) of the Act. However, as hereinafter indicated, our concurrence is for different reasons. • Briefly, the facts relating to the discharges are as follows : At the meeting of March 14, 1950, the, employees' first demand was that Jones and Patty be discharged. Their principal reasons were that Jones was not qualified to be service manager and that Patty, who was a body man, was performing mechanical work that should have gone to the mechanics in the shop. Jones testified credibly that, after some urging by the other employees, he signed a union card. Jones subsequently resigned from the Union about a week before I The Respondent cites N. L. R. R. V. West Ohio Gas Co., 172 F. 2d 685, as authority for its position that the employees withdrew from the Union. We believe that the West Ohio case is clearly distinguishable from the present one. Thus, in West Ohio the union had been inactive for some time and the withdrawal of the employees from the union was effec- tuated by the circulation and signing of a withdrawal petition before the employees' eco- nomic demands were met. - 8 See footnote 6, supra. • REEDER MOTOR COMPANY 835 the meeting of March 14, 1950. Patty never did join the Union and there is no evidence in the record that any union representative sought his membership. The following morning after the meeting, Patty and Jones were called separately into Reeder's office and, after they were given an opportunity to talk to the men, they were discharged. The Trial Examiner credits Patty's testimony that Reeder in referring to the meeting of March 14,1950, said to him that Patty knew Respond- ent was having union trouble and that the other employees had stated that they would forget the Union provided Reeder discharged Jones and Patty .9 Jones left the Respondent's employ immediately and Patty left about 2 weeks later. The Trial Examiner found that the Respondent knew that the rea- sons given by the employees in demanding the discharges of Jones and Patty were a mere pretext; and, that the Respondent knew or should have known that the employees' real reason for demanding the discharge of Jones- and Patty was the refusal of Jones and Patty to join in their concerted activities. In the Trial Examiner's view the Respondent, by agreeing to these demands, adopted the reason of the employees. However, our finding of discrimination is based upon our conviction that the Respondent was motivated in discharging Jones and Patty by its belief that such action would, as in part it did, induce the other employees to abandon the Union. This unlawful motivation is clearly established by Reeder's admission to Patty that the other employees had stated that they' would forget the Union provided Reeder dis- • cllarged Jones and Patty as well as by the record as a whole.10 As found above, the Respondent unlawfully bargained directly with its employees in derogation of the Union's representative status, thereby evincing a desire and an intent to eliminate the Union as bargaining representative. The employees' economic demands, including the discharges of Jones and Patty for the various assorted reasons made in these direct dealings, reasonably appeared to the Respondent as the price for the employees' withdrawal from the Union. Consequently, when the Respondent agreed to discharge Jones and Patty and to the other demands of the employees, it was virtually assured that they would repudiate the Union, as they subsequently did. We find there- fore that the Respondent in discharging Jones and Patty interfered with employees in the exercise of the rights guaranteed in Section 7, thereby violating Section 8 (a) (1) of the Act. Furthermore, we find that the Respondent discriminated against Jones and Patty in regard to their tenure or conditions of employment by discharging them in 0 As this credibility resolution of the Trial Examiner is supported by the preponderance of evidence, we adopt it. 10 While Reeder's statement to Patty is hearsay with respect to what occurred at the meeting and in no way militates against the Trial Examiner's other finding that the Union had not been mentioned at the meeting , it is an admission against Merest which we regard as of probative value in resolving the issue of motivation. 836 DECISIONS OF NATIONAL, ,LABOR, RELATIONS BOARD order, to discourage; membership ;ofthe other ,employees, in the Union, thereby violating, Section. 8 (a) (3) of the, Act.: Whether the, dis-. criminatory conduct is viewed, as„ a, violation of Section 8, (a) (1) or, 8 (a), (3) of, the, Act, we; find-that; effectuation of the policies of the. Act requires that Jones, and Patty, be offered' reinstatement, with back pay, as recommended by the, Trial Examiner.- Order Upon the entire record in the case and- pursuant to Section 10 (c) of the National Labor Relations Act,, as; amended, the, National Labor Relations Board hereby orders that the Respondent, Reeder Motor Company, Oak Ridge, Tennessee ; ,its ,officers, agents, successors,, and assigns shall: 1. Cease and desist from : - • (a) Refusing. to bargain collectively with, Local 900, International Union of Operating Engineers,, A. F. L., asthe exclusive bargaining representative of all employees in the appropriate, unit with respect to,rates of pay, wages, hours of employment, and other conditions of- employment. (b) Dealing individually with employees .in derogation of their ba.rgainnig representative, with respect to any matter properly the subject of collective bargaining. . (c) Discouraging membership in Local 900, International Union of Operating Engineers, A. F. L., or,in any other labor organization of its employees, by discriminating in regard to their hire or, tenure; of employment or any term or condition of their employment, except , to -the extent permitted by the, proviso to Section 8 (a) (3) of the amended Act. (d) In any other, manner, interfering with, restraining, or coercing its employees in .their exercise of their rights of self-organization, to form labor organizations, to join or assist Local 900, International Union of Operating Engineers, A. F. L., or any other labor- organi- zation, to bargain collectively through representatives of their own choosing,, to engage, in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an, agreement requiring membership in a labor organi- zation as a condition ition of employment, as authorized by Section 8 (a) (3) of the Act. - 2. Take the following affirmative action which the Board finds will efiectuate.the,policies of the Act: , '(a) Upon request bargain collectively with Local 900, International. Union of Operating-Engineers, A. F. L., as the exclusive representa- tive of the employees in the following bargaining unit, and embody any understanding reached in a signed agreement : All garage mechan- u Kennametal, Inc, 80' NLRB 1481. REEDER MOTOR COMPANY 837 ics, garage body men,,parts room employees, wrecker truck operators,- boiler room operators, and apprentices in the afore-mentioned classi- fications employed by Respondent in the Oak Ridge, Tennessee, plant,, excluding salesmen, office-clerical employees, service station em-- ployees,, professional employees, guards, and supervisors, -as defined by the.Act. (b) Offer to Jackson. Theodore Patty and Charles F. Jones imme- diate; and full reinstatement to their former or substantially equivalent positions„without prejudice to their seniority or other rights and privi- leges, and make each of them whole for any loss of pay each may have suffered by reason of the discrimination against him, in the manner provided in the section of the Intermediate Report entitled "The Remedy." . (c) Post at its plant in Oak Ridge, Tennessee, copies of the notice attached hereto and marked "Appendix A." 12 Copies of said notice,, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by a representative. of the, Respondent, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, in- eluding all places' where notices to employees are customarily posted. Reasonable steps shall be taken by the.Respondent to insure that-said notices are not altered, defaced,, or covered by any other material. (d) Notify the Regional Director for the Tenth Region in, writing, within ten (10.) days from the date of this Order, what steps, the. Respondent has.taken to. comply herewith. IT -IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent interrogated the, employees on or about March 4, 1950, solicited the employees to resign from, the Union on, or about March 6, 1950, and promised financial- and other benefits to employees on certain conditions on or about. March 8, 1950. CHAIRMAN HERZOO and MEMBER MURDOCK took, no part in the con- - sideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision, and Order of the National Labor Relations Board, and in order to effectuate the policies. of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT deal individually with our employees in deroga- tion of their bargaining representative with respect to any matter properly the subject of collective bargaining. "In the event that this Order is enforced by a decree of a United States Court of - Appeals, there shall , be.inserted before the words, "A Decision and Order," the words„ "A Decree of the United States Court of Appeals Enforcing." 974176-52-vol. 96-54 838 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD WE WILL bargain collectively upon request with LOCAL 900, INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. L., as the exclusive representative of all employees in the following bargain- ing unit, with respect to rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement : All garage mechanics, garage body men, parts room em- ployees, wrecker truck operators, boiler room operators and apprentices in the afore-mentioned classifications employed by us in the Oak Ridge, Tennessee, plant, excluding salesmen, office-clerical employees, service station employees, profes- sional employees, guards, and supervisors. WE WILL NOT discourage membership in LOCAL 900, INTERNA- TIONAL UNION OF OPERATING ENGINEERS, A. F. L., or in any other labor organization of our employees, by discharging any of our employees or in any other manner discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist LOCAL 900, INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. L., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Jackson Theodore Patty and Charles F. Jones immediate and full reinstatement to their former or- substantially equivalent positions without prejudice to any seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. REEDER MOTOR COMPANY, Employer. Dated -------------------- By ----------- --------- ---------- (I,epresentative ) ( Titre) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. REEDER-MOTOR COMPANY Intermediate Report STATEMENT OF THE CASE 839 Upon charges duly filed by Local 900, International Union of Operating En- gineers, •A. F. L., herein called the Union, and by Jackson Theodore Patty and Charles F. Jones, individuals, herein called Patty and Jones, respectively, the General Counsel of the National Labor Relations Board,' by the Regional Di- rector for the Tenth Region (Atlanta, Georgia), issued a complaint dated Febru- ary 13, 1951., against Reeder Motor Company, Oak Ridge, Tennessee, herein called the Respondent, alleging that Respondent had engaged in and was en- -gaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called.the Act. Copies of the charges, complaint, order consolidating cases, and notice of hearing were duly served upon the Respondent, the Union, Patty, and Jones. With respect to the unfair labor practices, the complaint alleged in substance that: (1) On and after March 3, 1950, Respondent refused to bargain collectively with the Union as the exclusive representative of all of its employees in an appropriate unit; (2) that on March 14, 1950, and thereafter Respondent bar- gained directly and individually with its employees in said unit concerning rates of pay, wages, hours of employment, and other conditions of employment, and concerning the discharge of its employees Patty and Jones, and unilaterally granted the employees in said rinit wage increases ; (3) about March 15, 1950, Respondent discriminatorily discharged Patty and Jones and thereafter failed and refused to reinstate them ; and (4) on and after March 4, 1950, Respondent interrogated its employees concerning union membership, etc., solicited its em- ployees to resign from the Union, and promised certain- benefits to employees refraining from union activities. The complaint charged that by the foregoing conduct Respondent violated Section 8 (a) (1), (3), and (5) of the Act. In its answer duly filed Respondent admits that it is engaged in commerce and that the Union is a labor organization as defined in the Act; denies that the unit alleged in the complaint is an appropriate unit for the purpose of collective bargaining;' and generally denies the other allegations in the com- plaint charging unfair labor practices. Respondent then affirmatively alleges that on or about March 3, 1950, it requested that the Union advise if it repre- sented a majority of the employees in the said unit, and if so to furnish evidence thereof ; that thereafter its employees voluntarily advised Respondent that the Union did not represent them for any purpose and by reason thereof Respondent has refused to bargain with the Union as the exclusive representative of its employees ; and that on or about March 14, 1950, the, employees in said unit demanded that Respondent discharge Patty and Jones, and that the latter upon being apprised of said demands voluntarily left Respondent's employ. Pursuant to notice, a bearing was held on March 5 and 6, 1951, at Oak Ridge, Tennessee, before Allen MacCullen, the undersigned Trial Examiner duly desig- nated bey the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by its agent, and all parties par- ticipated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded 1 The General Counsel and his representative at the bearing are referred to herein as the General Counsel. The National Labor Relations Board is herein called the Board. 2 At the hearing Respondent stipulated that the unit alleged in the complaint con- stituted a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all parties. No oral argument was-made by any of the parties at the hearing- Respondent filed a brief with the undersigned. Upon the entire record in the case and from observation of the witnesses, and; consideration of Respondent's brief, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Reeder Motor Company is a Tennessee corporation, having its principal place- -of business in Oak Ridge, Tennessee, where it was engaged at all times material herein in the business of purchasing, servicing, and selling new and used auto- mobiles, trucks, arid' parts thereof'8perating under a direct dealer selling agree- ment with the Chevrolet Motor Division of General Motors Corporation. 'During- the year 1950, Respondent purchased from out of the State of Tennessee, new cars and parts for automobiles of the value of $495,400.11 and tires, gasoline, ands other materials manufactured out of the State of Tennessee and purchased by Respondent from local distributors in Tennessee of a value in excess of $5,000; and during the same period Respondent serviced and sold finished products„ consisting principally of the new cars purchased from out of the State of Tennes- see, and in addition used automobiles and trucks and repair parts thereof, -valued in excess of $700,000, all of which were sold within the State of Tennessee. The undersigned finds that Respondent is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED Local 900, Inter"national`Union of Operating Engineerq,, A. F. L., is a labor or- ganization admitting to membership employees of Respondent. - III. THE UNFAIR LABOR PRACTICES A. Setting and issues During the month of February 1950 a representative of the Union called on -Respondent's employees in an attempt to organize them. By March 1, 1950, 9 • of the 12 employees in the bargaining unit herein mentioned had signed union- authorization cards. *On March 3 and 10, 1950, a representative of the Union called on Richard D. Reeder, Respondent's general manager, and informed Reeder that the Union represented a majority of•its emplb'jees in said unit; and conducted certain negotiations as herein found. On March 17, 1950, Respond- ent received a letter from the Union, dated March 15, 1950, requesting a confer- ence for the purpose of conducting collective bargaining on behalf of the em- , ployees. Respondent's attorney replied to this letter on March 18, 1950, advising - the Union that Respondent's employees had advised that the Union had not been designated to represent the employees, and stating that Respondelt would -cooperate in arranging for a Board election. The issue of refusal to bargain is -thus raised. On March 14, 1950, Respondent met with its employees, and discharged two of its employees upon the demand of its other employees, and bargained with its em- ployees concerning vacations, wages, and other conditions of employment, thus Eleven employees actually signed union-authorization cards, but 2 of these employees, R: E. Jones and K. King, were service station employees and not included in the unit. There was also some question if the Union had jurisdiction over these 2 employees. . REEDER MOTOR COMPANY 841 ]raising the issue as'to ,whether Respondent discriminatorily discharged the said two employees, and interfered with, restrained, and coerced its employees. B. Refusal to bargain The complaint alleges, the Respondent has stipulated , and the Trial Exam- iner finds that the following unit of Respondent's employees is appropriate for ,the purpose of collective bargaining as defined in Section 9 of the Act : All garage mechanics , garage body men, parts room employees , wrecker truck operators, boiler room operators and apprentices in the afore -mentioned classi- -fication employed by Respondent in the Oak Ridge , Tennessee, plant, excluding salesmen, office-clerical employees, service station employees, professional em- ployees, guards, and supervisors as defined in the Act. On March 1, 1950, there were 12 employees in the above-mentioned unit. On this date 9 of these employees had signed cards authorizing the Union to repre- sent them in matters of collective bargaining. It is therefore found that on March 1, 1950, and for such time thereafter as is material . to these proceedings, the Union was and continued to be the duly designated collective bargaining representative of a majority of the employees in said unit.' On March 3, 1950, Fella H. Holbrook, business agent for the Union, called at the office of Richard D. Reeder, general manager for Respondent, and informed 'Reeder that the Union represented the majority of the employees in the above- ,described unit.' Reeder made no reply. Holbrook gave Reeder a history of the Union, but made no request for bargaining at this time. On March 10, 1950, Holbrook again met with Reeder. Holbrook was accom- panied by a representative of the International. At this meeting Holbrook ad- -vised Reeder that Ray Williams, one of the shop employees, had been elected shop steward ; and gave Reeder a specimen of the form of contract which he intended to use in the organization of all of the garages in Oak Ridge, which form of contract, among other things, set forth grievance procedure, seniority, promotions :and demotions,. hours of work, vacations, rates of pay, and other conditions of em- ployment. Holbrook and Reeder did not discuss the contract at this meeting for the reason, as testified by Holbrook, "I believe he [Reeder] said he would turn it over to his attorney." This was not denied by Reeder. Reeder testified it was at this meeting that Holbrook first mentioned that the Union had a majority of the employees signed up. Reeder then gave the follow- ing testimony : Q. What response, if any, did you make to that statement? A. Well, naturally, I didn't think that he had a majority, and I asked for a N. L. R. B. vote, which I thought,I had the right to see if he had a majority. Q. Was there any further discussion then between you as to the vote- the ballot-the election? * On March 6 , 1950, Charles F. Jones prepared and signed a resignation from the 'Union as hereinafter related . It is not clear from the record when this was delivered to the Union . On March 16 and 17, 1950, the other eight employees in the unit who had previously joined the Union signed resignations from the Union , which resignations were received by the Union on March 18, 1950, all as hereinafter mentioned. 0 The findings as to the conferences between Holbrook and Reeder are based on the credited testimony of these two witnesses . Generally there was no conflict between such testimony. Reference will be made to any conflicts. Reeder testified that he did not think Holbrook mentioned the fact that the Union represented the employees at this first meeting. It is not necessary to decide whether this occurred at the meeting on March 3 or 10, as the first request for bargaining by Holbrook did not occur until the next sleeting on March 10. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. No, sir. I think the conversation went on like it started ; nothing was ever done or accomplished on the vote-never did notify me of any call for any vote of any kind. On cross-examination, Reeder was asked : Q. You didn't believe Holbrook's statement that he had a majority of your employees signed up? A. I wouldn't say it that way. He made the statement that he did, and I just more or less told him that if he had a majority-if he had a majority, as he said, I would like an N. L. R. B. vote.e Holbrook gave no testimony that Reeder ever asked for an election, and his subsequent conduct clearly indicates that he had no such understanding with Reeder. I am convinced from all of the testimony that Reeder knew at least by March 10 that the majority of his employees had joined the Union, and it did not occur to Reeder to question Holbrook's statement or to request a Board election, and I so find. After the meeting on March 10, Holbrook heard nothing further from Reeder, and on March* 16 he mailed a formal written request to Respondent for a con- ference to negotiate a contract concerning wages, hours of work, and other condi- tions of employment. This letter was dated March 15 and was delivered to - Respondent on March 17'. On March 18,1950, Respondent's attorney sent a letter to the Union advising that "we are advised by our employees that your Union has not been designated '.to represent them," and suggesting that a Board election be held. After the receipt of this letter the Union received information of certain unfair labor practices by Respondent as hereinafter related, and on March 30, 1950, the Union filed its charge against Respondent alleging refusal to bargain and other unfair labor practices. C. Interference, restraint, and coercion On March 14, 1950, the employees asked for a meeting with Reeder and Kirby_ There were eight of the employees. in the above-mentioned unit present at this meeting. The employees first demanded that Jones and Patty be discharged, and gave as their reasons that Jones was not qualified to be service manager, and that Patty, who was a body man, was performing mechanical work that should have gone to the mechanics in the shop.' The employees demanded a On examination by the Trial Examiner, Reeder rather reluctantly admitted that he had received information from. Edward E. Kirby, Respondent's sales manager , of the union activity of the employees in the middle of February. Kirby, who Respondent stipulated was a supervisor within the meaning of the Act, admitted that the employees had dis- cussed the union organization very freely with him in February Patty testified credibly and without contradiction that about March 4 he had a talk with Kirby in which Kirby said that he (Kirby) was surprised that Jones had joined the Union as Respondent was going to make Jones shop foreman, and further that Kirby wished the boys had not joined the Union as he believed that he could get them more than the Union would get them. Reeder admitted that he was not surprised when Holbrook came to him on March 3, and that there was some foundation for the information he had received from Kirby. 7It is clear from all of the testimony that there was no merit in the reasons advanced by the employees for the discharge of Jones and Patty and that Reeder realized it. Jones was not then acting as service manager, having been relieved of those duties earlier in the month by the appointment of a permanent service manager. The mechanical work by Patty was in accordance with an agreement Patty made with Reeder's predecessor, and while the employees may have had cause to protest about this arrangement, Patty was not a fault and the matter could have been straightened out without discharging Patty. According to Reeder, this matter was straightened out in January 1950. Reeder testified that both Jones and Patty were competent and efficient employees and that he was sur- prised at the employees' demand. From all of the evidence, it is clear, and I fim1 that the real reason for the demand of the employees was the refusal of Jones and Patty to join in their concerted activities and that Reeder was fully advised as to this reason. REEDER MOTOR COMPANY 843 weekly guarantee of a minimum -of $60 and that vacations previously arranged for be continued. Reeder testified that he bad for some time been studying the wage situation , and had concluded that $55 a week minimum was proper, but he readily agreed to the demands of the employees. N The following morning after the meeting with the employees , Jones and Patty were discharged. Jones left immediately , and Patty was permitted to complete a job upon which he was working , and left Respondent's employment about 2 weeks later. When asked as to what occurred when Reeder called him to the office on March 15 and discharged him, Patty testified credibly as follows : A. And when I went in, Reeder said to me-said, "Jack, you know we have been having union trouble ." I said I knew there was talk about it, but I didn't know there was trouble. Well, he was considering the talk-and he said, "The boys and I"-and he named Ed Lawhorn-Edward and Edsul Lawhorn, and Johnnie Leonard, and the two Childers boys, and Ray Wil- liams, and he said they stated that they would forget the union provided he discharged me and Jones. And Mr . Kirby spoke up and said, "Dick, the union wasn't mentioned ," he says. Mr. Reeder said, "Well-", and went on and told me he had lost a lot of sleep thinking about it, .. . Reeder denied making the statement that the other employees said they would forget the Union if he would discharge Patty and Jones. Asked on cross-exami- nation as to what he said to Patty, he replied : A. I don't remember the exact wording of it. Q. Did you say something about not having slept the night before thinking about it-something like that? A. Well, naturally, I was a little bit upset. I might have made that statement. Maybe I didn't sleep so good , or something about it. I might have. . Q. In other words, you don't deny that you might have done so? A. That is right. When questioned further as to the conversation with Patty, Reeder pretended not to understand the questions When his attention was directed to the testimony given by Kirby shortly before Reeder was called to the witness stand to the effect that at the meeting with Patty on the morning of March 15, Kirby made the statement that no mention was made of the Union at the meeting the night before, Reeder then testified : At the meeting when we called Jack Patty in and Charlie Jones, I do. recall now that-I believe it was Jack Patty asked Mr. Kirby, and myself, if the reason we were going to let him go-I do recall now, lie mentioned something-was it on account of whether he belonged to the union or didn't belong to the union And I believe Mr. Kirby answered him that the union was not even mentioned at the meeting the night before. Neither Reeder nor Kirby was questioned as to the first part of the statement attributed to Reeder by Patty that "we have been having some union trouble" Kirby was asked if he recalled Reeder making any statement that the employees would drop out of the Union "If we would discharge you and Jones" and replied : "I don't remember that statement." He was asked if he remembered any men- tion of the Union at the meeting with Patty, and replied, "I remember making the statement that there was no - union mentioned at the meeting" ( meaning the meeting on March 14). He was not asked nor did he given any explanation as to why lie made this statement. ,844 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD- That something prompted the making of this'statement by Kirby-is clear, and Reeder's attempted -explanation of it is not convincing. Patty's 'testimony on the other hand was rather frank, and is therefore credited by me. A day or two following the meeting with Patty and Jones, Ray Williams ex- -hibited to Kirby and Reeder an envelope which -he said contained the resignation -of all of the employees from 'the Union 8 This was mailed to and received by -the Union shortly thereafter. Jones was appointed acting service manager in January 1950 which position he :held until early in March when a permanent service manager was appointed. Jdiles' testified that early in March he asked Kirby what would happen to him _(Jones) when the new service manager was appointed and Kirby asked him how lie would like to be shop foreman under the new service manager. Nothing further came of this. Jones further testified credibly that in February 1950 while the union organization was going on, he told Kirby several times that he did not believe he, Jones, would join the Union; that the reason he told Kirby this was "that I thought Mr. Kirby and Mr. Reeder would rather I wouldn't. I was trying to hold my job, and I got in the middle on both sides." Jones further testified credibly that in the latter part of February, after some urging by the other employees, he signed a union card and that he informed Kirby of this fact, and asked Kirby what he thought, and Kirby replied that he did not have to belong to the Union to work for Respondent. Jones *as then questioned by General Counsel as follows : Q. All right. Anything else said, that you recall? A. Nothing. No. Q. Anything said about resignations'from other people? A No. Q. Anything said about 50 percent of the employees? A. Oh, yes. In the conversation, Mr. Kirby asked me how Bobby stood. Q. Is that your brother, Bobby? A. Yes. And I said, "I can handle Bobby." And other than that, it was all that was said. Q. And you said you told Mr. Kirby on that occasion that you could handle Bobby? A. Yes, sir. - Q. What did you understand-what do you mean- A. The majority rules-to rule out the union. The majority of us would rule it out, if we could work it that way. Q. Well, when you meant you could handle Bobby, how could you handle- A. I could get him to resign from the union. Q. Did Mr. Kirby say anything about 50% in that conversation? A. No, just the majority rules in anything. That is the only statement that was made. I said I could handle Bobby, and he said, "The majority rules in anything." [Emphasis supplied.] Kirby denied that he ever suggested to Jones that he ask his brother to resign from the Union. Robert E. Jones testified that his brother suggested that he -resign from the Union, and said his brother told him that Kirby had said "a majority rules." 8 Kirby testified that this was probably March 15. That he was mistaken as to the date is shown by the resignations which are dated on March 16 and 17, 1950 As hereinafter mentioned, Charles F. Jones resigned from the Union on March 6, 1950, and Robert E. Jones and Kenneth King, service station employees, resigned on March 6 and 10, 1950. REEDER MOTOR COMPANY* 845 This testimony is too vague and indefinite to make any-credible finding. It is clear from Jones' testimony that he was seeking favors -from Kirby, -that he 'hoped to get the promotion to shop foreman. Jones admits that he went to Kirby and volunteered the information first about not joining the Union and later that he was forced to join. Kirby's reply that he did not have to join the Union to retain his position with Respondent, that "if it were me, I wouldn't be forced to do it" was proper, and cannot be construed as a solicitation by Kirby to resign from the Union. Shortly after his conversation with Kirby, Jones gave Reeder an envelope which he testified contained his resignation, and that of his brother, from the Union. Reeder returned the envelope to Jones and told the latter that he wanted nothing to do with it, and Jones then mailed the envelope to the Union. D. Conclusions Respondent has urged that the Respondent at no time refused to bargain with ,the Union. I cannot agree. The uncontradicted testimony shows that on March 10, 1950, the Union - informed Respondent that it 'represented a majority of the employees in an appropriate unit, that the employees had elected a shop steward, and discussed the plans of the Union generally to organize all of the garages in- Oak Ridge and the vicinity, and at that time left with Respondent a specimen contract outlining in some detail hours of work, wages, vacations, and other- conditions of employment, which the Union understood the Respondent would consider with its attorney. If Respondent entertained any bona fide doubt as to the Union's representation claim, this was the time to raise that question, and not later after the majority status of the Union had been dissipated by the acts of the Respondent as herein found e Reeder's testimony that he did raise the question at the meeting on March 10 is not credited by me for the reasons herein 'indicated. In addition, if Reeder entertained any bona fide doubts at that time as to the Union's majority claim, why did he not end the conference, thereby making his demands for a Board election rather than continue the negotiations with the Union as shown by the evidence. It is clear from the evidence that at this meeting Reeder was undecided what steps to take and he accordingly took no action. He admitted that Kirby had talked to him about the union activities of the employees, and there is little doubt that Kirby had told him of his conversations with Jones and Kirby's statement to Patty that he (Kirby) wished the employees had not joined the Union as he thought he could get more for them. Later when he received the formal request from the Union for further negotiations, he then for the first time entertained a bona fide doubt as to the Union's representation claim. He was then certain that Respondents' antiunion conduct had precluded any likelihood that the Union would win the election. The evidence convinces me, and I find, that on March 10 Respondent recognized the Union as the bargaining representative of the employees in the above- mentioned unit, and thereafter refused to bargain with the Union in violation of Section 8 (a) (5) and 8 (a) (1) of the Act. Respondent contends that the granting of the employees' demand on March 14 to discharge Jones and Patty, and to give the employees a wage increase was not in violation of the Act for the reasons that the employees were dissatisfied with the Union and requested the conference ; that there was no request from Re- spondent that the employees resign from the Union, and no promise from the employees that if their demands were granted they would resign from the Union. The Cullman Lumber Company, Inc., 82 NLRB 296; Artcraft Hosiery Company, 78 NLRB 333; Dtismuke Tire and Rubber Company, Inc., 93 NLRB 610. :846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent contends that the facts in this-case bring it within the rule announced in N. L. R. B. v. West Ohio Gas Co.,.172 F. 2d 685. I do not agree. In the West Ohio Gas Co. case, the employees indicated a dissatisfaction with the union, and after all employees had been afforded an opportunity to withdraw or remain in the union, and all of them voted to withdraw from the union, a conference was then arranged with management and a wage increase was granted. The court held that at the time the increase was granted the employees had withdrawn from the union. In the present case, at the time the wage increase was granted, and the other demands of the employees complied with, the employees were still members of the Union. Respondent has also, cited Artcraft Hosiery Company, 78 NLRB 333; The Loudonville Milling Company, 79 NLRB 304; and Joy Silk Mills, Inc., 85 NLRB 1263. None of these cases are in point. In Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678, the evidence disclosed that 18 of 26 employees in an appropriate unit had designated the union as their representative, and respondent recognized the union as the bar- gaining representative of the employees at meetings on June 4 and 5, 1941. The -union had proposed a contract providing for an increase in wages, and respond- ent was to meet with the union's representatives later to begin collective bar- 'gaining. On June 7, 12 of the employees who were members of the union con- -ferred with respondent and stated that they and the other 6 members of the union had no desire to remain in the union if through their own efforts, they could obtain wage increases, a list of which they submitted. Respondent de- clined to discuss the union, but stated it would consider the wage increases. On June 9, respondent granted the employees' requests, and the employees accepted. The employees then advised respondent that they felt they had no need of the union and would resign. Later that day the employees notified the union that they no longer desired the union to represent them. Respondent then advised the union that it understood the employees did not wish the union to represent them, and declined to negotiate further with the union unless it was established by an election that the union represented the employees. The Board held that the employees had not revoked their designation of the union as their bargaining representative before the wage increase and that the -employees' defection from the union was induced by respondent's conduct in -dealing directly with the employees. The Supreme Court in enforcing the Board's -Order said, "The National Labor Relations Act makes 'it the duty of the em- -ployer to bargain collectively with the chosen representatives of his employees. The obligation being exclusive, see sec. 9 (a) of the Act, 29 U. S. C. sec. 159 (a), it exacts `the negative duty to treat with no other.' " The Court said further, "The' statute was exacted in the public. interest for the protection of the em- ployees' right to collective bargaining and it may not be ignored by the employer, even though the employees consent, Labor Board v. Newport News Co., 308 U. S. 241, 251, or the employees suggest the conduct found to be an unfair labor prac- tice, National Licorice Co. v. Labor Board, 309 U. S. 350, at least where the em- ployer is in a position to secure any advantage from these practices, H. J. Heinz Co. v. Labor Board, 311 U. S. 514." In all material respects the present case is on all fours with the Medo case. The only difference is that in the present case the employees did not announce to Respondent their alleged dissatisfaction with the Union and that they would withdraw from the Union if they could get what they wanted., Respondent was advised of the representation by the Union, and had started negotiations with the Union. Respondent was informed of the demands made by the Union, and the advantages to be gained by direct negotiations with the employees was ap- parent. The Union was demanding a minimum wage of $63 a week, as against the $60 granted by Respondent to the employees. The vacation demands of the REEDER MOTOR COMPANY 847, Union were in excess of those granted by Respondent. The contract proposed by the Union also contained many other material advantages to the employees covering the handling of grievances, arbitration of disputes, seniority, hours of work, sick leave, and other matters not covered in the settlement with the em- ployees. On all of the evidence, I find that the employees in the above-mentioned unit had not revoked their designation of the Union as their bargaining agent before the wage increases were granted by Respondent on March 14, 1950; that Re- spondent's determination to increase wages' was occasioned solely by Respond- ent's expectation that the employees would withdraw from the Union if the raises were granted ; and that the employees' defection from the Union was induced by Respondent's conduct in dealing directly with the employees, and that Respondent thereby violated Section 8 (a) (1) of the Act. The evidence also convinces me and I find that Respondent knew that the reasons given by the employees in demanding the discharge of Jones and Patty were without merit and a mere pretext ; that Kirby was fully advised about Jones' early refusal to join in with the concerted activities of the other em- ployees, and of Jones' later abandonment of participation therein after signing a union card ; that Kirby was fully informed that Patty had refused to join the activities of the other employees ; and that Kirby conveyed this information to Reeder ; and that Respondent, knew, or, should have known, that the real, rea- son for the, employees' demanding the discharge of Jones and Patty was the refusal of Jones and Patty to join their concerted activities. By agreeing to these demands, under the circumstances, Respondent has adopted the reasons of the employees. The concerted activities of the employees in this case were for their mutual aid or protection, and the right to refrain from such activities is protected by 'Section 7 of the Act. A discharge for having refused to engage in such activities violates Section 8 (a) (1) of the Act1° By gathering together to present a wage demand the employees constituted themselves a "labor organization" within the meaning of the Act." The discharge of Patty and Jones therefore also amounts to a discrimination in hire and tenure of employment, thereby encouraging membership in a labor organization, and violates Section 8 (a) (3) of the Act. 12 In support of charges in the complaint that Respondent, acting through Kirby, interrogated employees concerning their union membership, activities, and sympathies ; solicited its employees to resign from the Union; and promised financial and other benefits to its employees on condition that they refrain from joining or retaining membership in the Union, General Counsel offered the testi- mony of Jones hereinabove related as to the conversation between Jones and Kirby in the latter part of February or early March, and Patty's testimony that Kirby stated to him about March 6 that he did not see why Jones had joined the Union since Reeder was going to make him shop foreman. General Counsel urged at the hearing that Kirby's conversation with Jones was a "very adept means of testing the depth of the sympathies which Jones had In being a Union member," and that Kirby's statements "had the effect, or were designed, to bring out from Jones just how sincere a union member he was-how much the company could depend on him." And further that as a result of such statements "Jones very promptly prepared and served his resignation from the Union." General Counsel stated that it was upon this statement that the allega- tion of interrogation in the complaint is based. The statements made by Kirby io Cullett Gin Company, 83 NLRB 1 , 179 F. 2d 499. n Ever Ready Label Corporation, 54 NLRB 551; Duro Test Corporation, 81 NLRB 976; Oullett Gin Company, supra. 12 Cullett Gin Company, supra. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . were certainly not coercive per se, nor did they offer any reward , or threaten or intimidate Jones or any other, employee . Jones had volunteered information to Kirby for the obvious purpose of seeking Kirby 's reaction thereto, and Kirby's statements were clearly privileged speech, and not violative of the Act. As to the remaining testimony by Jones it was rather vague and indefinite, and was clearly in response to leading and suggestive questions propounded by General Counsel. When asked if anything else was said, Jones replied, "Nothing. No." General Counsel then suggested the subject of "resignations from other people," and again Jones replied, "No."' Again General Counsel resorts to suggesting that something may have been said by Kirby "about 50 percent of the employees " which resulted in an answer from Jones which was not responsive that "Kirby asked me how Bobby stood." Not satisfied, Gen- eral Counsel repeats, "Did Mr. Kirby say, anything about,50% in that con- versation," to which Jones replied that Kirby said, "The majority rules in anything." Jones admitted that he attempted to appease Kirby and Reeder. Having failed in his purpose, was he now attempting to appease General Counsel? Such 'broken and disconnected'statements in response to leading and suggestive ques- tions are not convincing and are not credited by me. In addition, General Counsel urges that Kirby's alleged statement to Jones "The majority rules in anything" was a solicitation to the Respondent's em- ployees to resign from the Union. General Counsel also contends that Kirby's statement to Patty "that he did not see why Jones had joined the Union since Reeder was going to make him.shop foreman " was a solicitation to em- ployees to withdraw from the Union . I cannot agree , and find that such argu- ment merits little consideration. General Counsel offered no testimony that Respondent, through Kirby, on or about March 8, 1950, promised financial and other benefits to its employees on condition that they refrain from joining or retaining membership in the Union or engaging in activities on behalf of the Union. For the reasons stated above, I shall recommend that paragraphs 13, 14, and 15 of the complaint, alleging that Respondent interrogated its employees concerning union membership, etc., solicited its employees to resign from the Union, dad promised benefits to its employees on condition that -they refrain from union activities, be dismissed. General Counsel offered the testimony of Johnnie Leonard, one of the em- ployees who attended the meeting on March 14, 1950" Leonard testified that at the meeting he asked Kirby if all of the garages in Oak Ridge were organized, what did he think would happen to the shop at Reeder Motor Company, and Kirby replied, "Well, if we come to that, he believed we could get in the union." Kirby denied making any such statement, and all other witnesses who testified agreed that the Union was not mentioned at the meeting on March 14. On cross-examination Leonard was asked if anything was said to him by either Kirby or Reeder about resigning from the Union, and he replied by shaking his head in the negative and saying, "The only time the union was mentioned, Mr. Kirby asked me one time when we were riding out the highway-he asked me if I had joined the union and I told him yes." On 'the whole, Leonard's testimony was very weak and not at all convincing. Ac- cordingly I do not credit his testimony. "At the conclusion of General Counsel 's case, the Trial Examiner raised some question as to the evidence to `support paragraphs 13 and 14 of the complaint , and suggested that General Counsel interview several employees then present at the hearing who attended the meeting of March 14 and who had participated in the union activities prior thereto. It was following this suggestion that General Counsel called Leonard who proved to be a very poor witness. REEDER ,MOTOR. COMPANY' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 849 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 to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Because it has been found that the Respondent has engaged in certain unfair labor practices, it will be recommended 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 has refused to bargain collectively with the Union, thereby interfering with, restraining, and coercing its employees. It will therefore be recommended that the Respondent cease and desist therefrom and, also, that it bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed contract. It has been found that the Respondent has bargained unilaterally with some of its employees and ignored the exclusive bargaining representative selected by the employees thereby inducing the employees to resign from the Union. It will be recommended that Respondent cease and desist from infringing upon the rights of the employees prescribed in Section 7 of the Act. It has been found that the Respondent has discriminatorily discharged Jackson Theodore Patty and Charles F. Jones. It will be recommended that Respondent offer the said Patty and Jones immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and to make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them by payment to each of them of a sum of money equal to that which they-normally would have earned as wages from the respective dates of the discrimination against them to the date of Respondent's offer of reinstatement, less their net earnings during said period. Said loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from Respondent's discriminatory action to the date of a proper offer of reinstate- ment. The quarterly periods, herein called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each said employee would normally have earned for each such quarter or portion thereof, his earnings, if any, in other employment during said period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. In order to insure compliance with the foregoing back-pay and reinstatement provisions, it is recommended that Respondent be required, upon reasonable request, to make all pertinent records available to the Board and its agents. F. W. Wool- worth Company, 90 NLRB 289. It has been found that Respondent did not interrogate its employees, solicit its employees to resign from the Union, or promise financial and other benefits to its employees to refrain from joining or retaining membership in the Union as alleged in paragraphs 13, 14, and 15 of the complaint ; will be recommended that paragraphs 13, 14, and 15 of the complaint be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Local 900, International Union of Operating Engineers, A. F. L. is a labor organization within the meaning of Section 2 (5) of the Act. 2. Kenton R. Champion, Gordon Champion, Raymond Williams, Robert R. Childers, H. It. Childers, Johnnie Leonard, Edsuel W. Lawhorn, and Edward Lawhorn, in the exercise of their concerted activities, constituted a labor organi- zation within the meaning of Section 2 (5) of the Act. 3. By refusing to bargain collectively with Local 900, International Union of Operating Engineers, A. F. L., as the exclusive bargaining representative of the employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 4. By bargaining unilaterally with some of its employees and ignoring the exclusive bargaining representative selected by its employees, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (1) of the Act. 5. By discriminating in regard to the tenure of employment of Jackson Theo- dore Patty and Charles F. Jones, the Respondent encouraged membership in a labor organization in violation of Section 8 (a) (3) of the Act, and has inter- fered with, restrained, and coerced the said employees in the exercise of rights guaranteed to them by Section 7, in violation of Section 8 (a) (1) of the Act. 6. All garage mechanics, garage body men, parts room employees, wrecker truck operators, boiler room operators, and apprentices in the afore-mentioned classification employed by Respondent in the Oak Ridge, Tennessee, plant, exclud- ing salesmen, office-clerical employees, service station employees, professional employees, guards, and supervisors as defined by the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 7. On March 10, 1950, Local 900, International Union of Operating Engineers, A. F. L., was, and at all times since, has been, and now is, the exclusive repre- sentative of all employees in the unit for the purpose of collective bargaining within the meaning of Section (9) (a) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 9. Respondent has not engaged in unfair labor practices by interrogating its employees on or about March 4, 1950, by soliciting its employees to resign from the Union on or about March 6, 1950, and by promising financial and other benefits to its employees on condition that they refrain from joining or retaining membership in the Union on or about March 8, 1950, as alleged in the complaint. [Recommended Order omitted from publication in this volume.] REED & PRINCE MANUFACTURING COMPANY and UNITED STEELWORKERS OF AMERICA, CIO. Case No. 1-CA-865. October 16, 1951 Decision and Order On June 5, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in this case, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices in viola- 96 NLRB No. 129.