McCann Steel Co.

McCANN STEEL COMPANY 41 JOHN H. McCANN AND HAZEL E. McCANN D/B/A McCANN STEEL COMPANY and SHOPMEN'S LOCAL UNION NO. 733, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, A. F. of L. Case No. 10-CA-1259. July 9, 1953 DECISION AND ORDER STATEMENT OF THE CASE Upon a charge and amended charges duly filed by Shopmen's Local Union No. 733, International Association of Bridge, Structural & Ornamental Iron Workers, A. F. of L., herein called the Union, the General Counsel of the National Labor Relations Board, respectively herein called the General Coun- sel' and the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint, dated June 5, 1952, against John H. McCann and Hazel E. McCann d/b/a McCann Steel Company, 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 (a) (1), (2), (3), (4), 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 complaint, the charge and amended charges upon which the complaint was based, and notice of hearing, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint as amended alleged in substance that the Respondent: (1) On or about May 24, 1951, discharged Vernon Clardy and thereafter failed and refused to reinstate him because of his membership in and activities on behalf of the Union and because he appeared as a witness and testified ina Board proceeding ; ( 2) on or about January 26, 1951, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit; (3) in and around February 1951 and on or about May 9 and May 30, 1951, bargained directly and individually with its employees in the aforesaid unit and unilaterally granted them wage increases; (4) on or about November 17, 1950, initiated, formed, sponsored, and promoted a labor organization, herein called the Grievance Committee, and at all times since that date has assisted, dominated, contributed to the support of, and interfered with, the admin- istration of this Committee; (5) on different dates from January 15, 1951, through June 5, 1951, through its officers and agents, (a) threatened its employees with discharge and other reprisals because of their union membership; (b) interrogated its em- ployees concerning their union membership, activities, and desires; and ( c) conducted a poll or election among its em- ployees to determine whether they desiredtobe represented by the Union. IThe term specifically includes the counsel for the General Counsel appearing at the hearing. 106 NLRB No 6. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent ' s amended answer denied the commission of the alleged unfair labor practices , and admitted certain other allegations of the complaint. In addition , the answer averred that Section 10 (b) of the Act barred the allegations of the complaint because they had allegedly occurred more than 6 months before any charges specifically alleging them were filed and served. Pursuant to notice , a hearing was held at Nashville , Tennes- see, on November 12, 13, and 19, 1952, before the late J. J. Fitzpatrick, the Trial Examiner duly designated by the Chief Trial Examiner. ' The General Counsel and the Respondent were represented by counsel and the Union by representatives. All parties were afforded full opportunity to be heard , to examine and cross -examine witnesses , to introduce evidence bearing on the case , to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. Briefs were received by the Trial Examiner from the General Counsel and the Respondent , and have been duly considered. During the course of the hearing , the Trial Examiner made rulings on motions and on objections to the admissibility of evidence. The Boards has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. At the conclusion of the hearing , counsel for the Respondent moved to dismiss the complaint because the allegations therein were barred by Section 10 (b) of the Act. ' The Respondent contended , in sub- stance , that Section 10 (b) required the dismissal of the com- plaint because the alleged violations occurred more than 6 months before the filing and service of a charge specifically alleging these violations . The Trial Examiner reserved ruling on this motion. It is hereby denied.5 On January 30, 1953, the Board, acting pursuant to Section 102.36 of its Rules and Regulations , Series 6 as amended, 2 After the hearing had been concluded and before the filing of the intermediate Report became possible, Trial Examiner Fitzpatrick died. 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Houston, Murdock, and Peterson] 4 The Respondent had urged this contention in its answer and had renewed it in its brief to the Trial Examiner. 5 The original charge, filed on May 4, 1951, and served upon the Respondent on May 10, 1951, charged violations of Section 8 (a) (1), (3), and (4) of the Act Later amendments added charges of violations of Section 8 (a) (2) and (5). The complaint, based on all these charges, alleged violations occurring on or after January 1, 1951 Without considering the individual charges or the specific allegations of the complaint, we note that the earliest conduct alleged in the complaint as an unfair labor practice occurred during January 1951. well within 6 months of the service of the original charge on May 10, 1951. We have frequently held that "the filing and service of a charge stops the running of the 6-month limitation provisions of Section 10 (b), as to any unfair labor practice committed within the 6-month period preceding the filing and service of the charge and/or any period subsequent thereto, whether or not the charge particularly mentions the acts involved." Waterfront Employers of Washington, 98 NLRB 284. Accordingly, as there appears to be no persuasive reason for departing from this salutary rule, we have denied the Respondent's motion Cathey Lumber Company, 86 NLRB 157; Ferro Stamping Company, 93 NLRB 1459; Olin Industries, Inc., 97 NLRB 130; see also N.L.R B. v. Westex Boot and Shoe Co., 190 F 2d 12 (C.A. 5) McCANN STEEL COMPANY 43 issued an order providing that the case be transferred to and continued before the Board , that no Trial Examiner's Inter- mediate Report be is sued in the case , and that proposed findings of fact, proposed conclusions of law , and a proposed order be issued. On June 2, 1953, the Board issued its proposed findings of fact, proposed conclusions of law, and proposed order in this proceeding . Thereafter, the General Counsel filed exceptions thereto and a supporting brief. The Board has considered the proposed findings of fact, proposed conclusions of law, and proposed order , the exceptions and brief,' and the entire record in the case, and hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT John H. McCann and Hazel E. McCann d /b/a McCann Steel Company have their principal office and place of business at Nashville , Tennessee , where they are engaged in the fabrication and installation of structural steel and miscellaneous orna- mental ironwork . During the 12-month period ending April 1, 1952 , they purchased raw materials , equipment , and supplies valued in excess $ 400,000, of which more than 75 percent in value was purchased outside the State of Tennessee and shipped in interstate commerce to the Nashville plant. During the same period, they sold finished products valuedinexcess of $800,000, of which more than 40 percent in value was sold and shipped to customers outside the State of Tennessee. We find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Shopmen's Local Union No. 733 , International Association of Bridge , Structural & Ornamental Iron Workers , A. F. of L., is, and the Grievance Committee was, a labor organization as defined in Section 2 ( 5) of the Act, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and chronology of main events On or about September 15, 1950 , the Respondenthired George J. Hearn , a business counselor , to assist it out of its financial difficulties . As part of his plan of rehabilitation , Hearn in October proposed to the employees the formation of a grievance committee. Following his suggestions the employees named a 6 In view of our determination herein, we deny the Respondent 's request for special leave to file a reply brief. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee of five with Hearn as chairman . This committee processed grievances on behalf of employees. In the early part of November, Pat Williams, special repre- sentative and organizer for the Union , contacted employees Vernon W. Clardy and others with reference to organizing the employees .on behalf of the Union. Active organization started December 15 , when the Union began holding weekly meetings. By January 23, 1951, the Union succeeded in signing up a majority of the employees in the shop. On January 26 it so notified the Respondent. On January 31 the Union filed a petition for certification of representatives (Case No. 10-RC-1262). On May 9, the Board issued its Decision and Direction of Election in part finding the appropriate unit.' An election was accordingly scheduled for June 5. Before June 5, however , the Respondent, as hereinafter found, engaged in various unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act. At the Union's request, the election of June 5 was canceled, and on June 22 the Union withdrew its petition for certification of representatives. B. The formation and domination of the Grievance Committee For the most part, the facts with respect to the Grievance Committee are uncontradicted and undisputed. On or about September 15, 1950, the Respondent , finding itself in financial difficulties, hired Hearn to rehabilitate it. A week later Hearn advised the employees of his mission and informed them that he would submit a program for their approval at the next regular monthly meeting of employees . At the October meeting, Hearn, among other things , suggested the formation of a grievance or shop committee because the Respondent was going to institute safety and efficiency measures and "wanted somebody that they [the employees ] felt was going to represent them properly." As he admitted: I said to them, "Now, my suggestion to you is that you have a committee of five and then you make as many nominations as you want from the floor and then everybody you nominate we will send out of the room and then we will take a vote and the first five that is elected will be the committee to repre- sent you people, and then anything that you don't like in connection with McCann Steel Company you can present to them and the chairman then will calla meeting and we will work it out." John H. McCann,8 who was also present at the meeting, corroborated Hearn, testifying: 794 NLRB No. 65. 8 The reporter erroneously designated the witness as Charles H McCann McCANN STEEL COMPANY 45 Mr. Hearn suggested that they appoint this committee to take up any grievance the men had. In other words, they would have to go to somebody with a grievance. In other words, anything that they wanted to take up with the man- agement it would be taken up, handled through this com- mittee. The employees followed Hearn' s recommendation and elected a Grievance Committee of five, including Clardy, with Hearn as chairman. According to Clardy, the function of the Committee was "to take up just general grievances of the men and to pro- vide safety rules for the shop, and just anything that come to hand, any question that might arise , it was to come before us and we were suppose to work it out." At Chairman Hearn's call , the Committee met weekly in McCann's office to hear and settle the grievances. Generally, they dealt with pay increases for employees, although one in- volved the recommendation that Superintendent Hicks be dis- charged. The Committee continued to function with its original mem- bership until the May 15, 1951, monthly meeting, when Hearn had a new slate elected .' Except for Clardy, there was no change in the new personnel of the Committee . Hearn continued as chairman. Although in its answer the Respondent denied that the Grievance Committee was a labor organization within the meaning of Section 2 (b) of the Act, it made no effort in its brief to support this position. As indicated above, this Com- mittee represented employees with respect to their grievances. To the extent that the Grievance Committee thus represented the employees with management and functioned as a vehicle for the discussion, consideration, and improvement of the em- ployees ' working conditions , we find that it was a labor organi- zation within the meaning of the Act." The Respondent, however, contends that an 8 (a)(2) violation cannot be found against it, because the Grievance Committee (1) had been created before union activity began and(2) had not been served with the complaint herein. We disagree. While it is true that the Committee was created in October 1950, before union activity began, the fact remains that the Respondent initiated and sponsored the Committee and dominated it during 9Hearn testified that he took this action because Clardy had offered to resign from the Committee and perhaps others might also want to do so, and that he so told the employees Clardy denied that he had offered to resign and testified that Hearn "fired" the Committee. Clardy's testimony was corroborated by employee Dallas F Brown. Significantly, McCann admitted that the election of a new Committee was Hearn's idea and that Hearn did not discuss the reasons for his idea. In these circumstances, and upon the entire record, we credit Clardy's and Brown's version of what occurred at the May 15 meeting. It See Indiana Metal Products Corp., 100 NLRB 1040, enforced as modified on other grounds, 202 F. 2d 613 (C. A. 7). 46 DECISIONS OF NATIONAL LABOR RELATIONS BO'1RD its entire existence ." As indicated above, the Committee was suggested by the Respondent' s business counselor , Hearn; the committee chairman was Hearn; the weekly committee meet- ings were called by Hearn and held in McCann' s office; and Hearn had the original officers terminated and new ones elected, with himself continuing as chairman . The activities which Section 8 (a) (2) proscribes are nonetheless violative of the Act whether or not there is a rival union in the picture. In these circumstances and upon the entire record, we believe and find that the Respondent ' s domination of and interference with the formation and administration of the Grievance Committee constituted a violation of Section 8 (a) (2) and (1) of the Act.12 With respect to the contention that no 8 ( a) (2) finding or order based thereon can be made because of the failure to serve the Grievance Committee in accordance with Section 102.8 and 102.15 of our Rules and Regulations , we note the Committee is no longer in existence . The Board ' s proposed order hereinafter entered is limited to the Respondent only, and does not order withdrawal of recognition from, or disestablishment of, the Grievance Committee. In these circumstances and upon the entire record , we find no merit in the Respondent's position. In cases involving labor organizations found by the Board to be dominated by an employer, the Board customarily orders withdrawal of recognition and disestablishment .' However, because of the failure to serve the Committee in accordance with the Rules , and because the Committee is no longer func- tioning,14 we find it unnecessary to order withdrawal of recog- nition and disestablishment in this case. C. The alleged refusal to bargain On January 25, 1951, the Union wrote the following letter which the Respondent received the next day: Shopmen's Local Union #733 of the International Asso- ciation of Bridge, Structural and Ornamental Iron Workers affiliated with the American Federation of Labor hereby submit notice that by authorization of your employees at 400 South 2nd Street , Nashville , Tennessee , we are desired by a vast majority for the purpose of collective bargaining when certified by,the National Labor Relations Board. Will you kindly consent by return mail to a consent election and/or acknowledge receipt of aforementioned notice. "To the extent that the Respondent's activity in connection with the Comniittee occurred more than 6 months before the filing and service of the original charge Section 10 (b) of the Act prevents such activity from being utilized as a basis for an unfair labor practice finding However, such conduct may be, and has been. considered as background evidence to assist us in evaluating the Respondent's conduct which occurred after the 6-month period. See Sharples Chemicals Inc , 100 NLRB 20. 12 Aerovox Corp , 102 NLRB 1526; Globe Products Incorporated, 102 NLRB 278; Indiana Metal Products Corporation supr; Rehrig-Pacific Company, 99 NLRB 163 13See cases cited in footnote 12, supra. 14 Both the Respondent and the General Counsel conceded in their briefs that the Conimttee is no longer functioning and has been dissolved McCANN STEEL COMPANY 47 McCann admitted having received this letter and making no reply thereto . He asserted that he made no reply because a few days later he received notice of the Union ' s representation petition filed on January 31. Williams, the union representative , credibly testified thathe had no dealings with the Respondent until early in March, when he discussed with McCann the layoff of employee Dale. With respect to this conversation , Williams testified as follows on direct examination: Q. (By Mr. Patton ) Did you have any conference with the Company after the layoff, discharge of Mr. Dale? A. Yes , I talked to Mr . McCann about that and we dis- cussed that problem quite thoroughly too. However, there was no one present but Mr . McCann and myself. Q. Well, now, aside from the merits of the case of Mr. Dale, the thing I am trying to get to is whether you or the Company, either one, said anything about the obligation to discuss the matter to bargain? A. Yes. Trial Examiner Fitzpatrick: Q. At this conference? The witness: A. Yes. I brought out the fact that we had the majority of people signed on cards and asked him to bargain on the fact that this man ' s seniority and he refused . ( Sic) Said he did not have to bargainwithme because of the fact we were not certified and that he would not bargain. McCann was not asked and did not testify concerning this conversation with Williams . However , he testified generally that at no time before June 5, 1951, did the Union request the Respondent to bargain collectively. Thereafter , on May 28 Williams againmet with McCann. This meeting concerned the reinstatement of Clardy , who had been discharged on May 24 . Also present at this meeting were Clardy and Union Representative Rutherford . Concerning this conver- sation Williams testified on direct examination: Q. . . . After the discharge of Mr . Vernon Clardy did you have any conferences with the Company? A. Yes. Mr. Rutherford and Mr. Clardy and myself went to Mr. McCann' s office. Q. I see. A. And we discussed the matter . And Mr . McCann was very antagonistic toward the fact that we wanted to put back 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work. We asked Mr. McCann if he would consider putting Mr. Clardy back to work and we discussed the matter quite thoroughly even though Mr. McCann was quite unreasonable a time or two about it. . . . He also made the statement when Brother Clardy told him that he had been told by Mr. Charles McCann to unload that car if at all possible, he told him whoever said that was a damn liar . And it was very--the meeting was very uncomfortable. (sic) Q. Did Mr . McCann say anything about his obligation to discuss the matter with you, bargain with you, anything of that kind? A. Yes , he very emphatically brought that point out. Q. What .,did he say? A. He said we had no bargaining rights within the Com- pany, within the plant , that we had not been certified , which, of course was true. We agreed with him we had not. But I brought the point forward that we did represent the people even though we had not been certified due to the fact these people had signed authorization cards for our representa- tion and I felt that due to that fact we could discuss the matter as gentlemen . And he said he did not have to sit there and talk to me or to Mr. Rutherford or any of the rest of us for that matter about the thing at all, that he had no reason to, and he didn't intend to discuss it as a matter of settling it. Clardy testified as follows: Q. Do you recall whether or not Mr. McCann said any- thing about his obligation to bargain at that time? A. I am afraid I don' t get you clear on that someway. Q. Well , do you know whether Mr. McCann said anything about whether he was obligated to bargain with the Union, or wasn't obligated to bargain with the Union, do you remember anything along that line happening? A. Well , I remember him saying that the Union wasn't going to tell him how to runhis business . I remember that. And he didn't have to negotiate and ask the Union anything. McCann confirmed Clardy's testimony respecting his refusal to let the Union runhis business . He further testified as follows: Q. When Mr. Williams came back with Mr. Clardy on Monday after Mr. Clardy had been discharged , didhe make any suggestion at that time that you engage in collective bargaining with him as representative of the Union? A. No, sir. Q. Did you state to him at that time in words or in substance that you didn ' t have to bargain with the Union? A. I can't recall just exactly the statement, but-- Q. Have you ever stated to anybody anytime that if the Union was certified that you didn ' t have to bargain with them? A. No, sir. McCANN STEEL COMPANY 49 The General Counsel contends that the Union requested the Respondent to bargain on three occasions : to wit, on January 26, sometime in March, and on May 28, and that the Respondent refused to do so. The Respondent denies that the record supports the General Counsel ' s position. For the reasons hereinafter set forth, we agree with the Respondent. " Before an employer normally can be found to have refused to bargain in violation of Section 8 ( a) (5) of the Act, the statutory representative of the employees in an appropriate unit must request the employer to recognize or bargain with it. While the request to bargain need not be formal, nor made in any particular manner , a union must clearly convey to the employer its desire to negotiate with him.16 We therefore proceed to examine whether this Union made a sufficiently clear request to the Respondent on any of the three occasions. The Union' s letter of January 25 recites that a majority of the employees desired to be represented by the Union when it was certified . This letter does not make apresent , clear demand for bargaining , but at mostasks the Respondentto consent to an election to ascertain the Union' s representative status. It is clear that the Union was not attempting to bargain collectively at this time, but was simply endeavoring to expedite the deter- mination of its majority status through normal Board channels. That this was the Union' s position is patently clear from Williams' admission on cross-examination: Q. . . . I am talking about January 25, 1951. A. No, I was asking for consent election or acknowledge receipt of this letter . That is all I was asking. Q. So, what you were asking [ them] to do was either consent to an election so you could have an election or in the alternative just acknowledge receipt of your letter. A. That's right. Further, the General Counsel, in oral argument before the Trial Examiner, admitted that "there may be some doubt as to the letter which was writtenbyMr. Williams to the Company constituting an inequivable ( sic) request to bargain ." Under all these circumstances , we find that the Union had not re- quested the Respondent to recognize or to bargain with it in its letter of January 25. Nor does the record establish a request to bargain collec- tively in March or on May 28. At most, it shows a request to bargain with respect to the discharges of Dale and Clardy--a ss In view of our determination herein, we deem it unnecessary to consider Respondent's other arguments that it had a bona fide doubt as to the Union's majority status or the appro- priate unit and therefore could not be found to have refused to bargain in good faith 16N.L R.B v. The Columbian Stamping & Enameling Co., 306 U. S. 292; The Solomon Company, 84 NLRB 226. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request that we find the Redpondent, in fact, honored--and not a request to bargain about anything else. As indicated above, Williams on direct examination testified that on the earlier occasion he asked McCann to bargain with respect to Dale's seniority. He confirmed this on cross-examination when he admitted: Q. So, you were not asking to engage in collective bargaining right at that time? A. I was asking him to bargain on that particular man (Dale) at that time, yes sir. This testimony clearly reveals that Williams was interested in bargaining only with respect to Dale. Similarly, Williams' testimony that on the later occasion he suggested to McCann that "we could discuss the matter as gentlemen" is much more susceptible, in the light of all the evidence, to an inter- pretation that he wanted to discuss Clardy's discharge and not any other subject of collective bargaining. It thus appears that Williams' and Clardy's testimony, upon which the General Counsel relies, does not spell out such a clear and unequivocal demand for collective bargaining as to support a finding of a violation of Section 8 (a) (5) of the Act. In the Solomon case 17 the Board refused to find a violation of Section (a) (5) of the Act where a union's request was not clearly and unequivocally for recognition and was susceptible of another reasonable interpretation. We believe that the principle in the Solomon case is applicable. Accordingly, we find that the Union made no request of the Respondent for recognition or for collective bargaining in March or on May 28.18 The General Counsel also argues that a specific request to bargain collectively would have been futile, and was therefore unnecessary, because the Respondent made it plain to the Union, by its actions and words, that it would not bargain with the Union even if duly requested. To support his position, the General Counsel relies upon our decision in the Old Town Shoe case.'9 In that case, the Board found a violation of Section 8 (a) (5) of the Act despite the absence of a request to bargain. However, the Board clearly indicated that "specific circumstances" took that case out of the general rule that a request to bargain is a condition precedent to a finding of a refusal to bargain. In the Old Town Shoe case, after an impasse resulted in a strike, the employer publicly stated its policy of not bargaining during a strike, and thus made it unequivo- cally clear to the union that a bargaining request would be futile during the strike. In the present proceeding, however, 17 The Solomon Company, 84 NLRB 226 i8See also Glass Fiber Moulding Company, 104 NLRB 383, in which Member Houston dis- sented. However, he now considers himself bound by that decision Nor can any violation be predicated on the Union's specific request to bargain about the Dale or Clardy discharges. As appears from Williams' admissions the Respondent did, in fact, thoroughly discuss these matters with Williams 19 91 NLRB 240. McCANN STEEL COMPANY 51 we find that there are no such specific circumstances which warrant removing the case from the general rule . We find no publicly stated policy or clearly evinced determination by the Respondent not to bargain with the Union . On the contrary, the two conversations on which the General Counsel relies disprove such a policy . In these conversations , the Union admits that the subject matter of its specific requests to bargain concerning Dale and Clardy was throughly discussed. While it may be true that the Respondent' s representative, McCann, was antagonistic and resented the Union , this is not sufficient to sustain the General Counsel's burden of proof that a request to bargain would have been futile. In these circumstances we believe and find that the principle of the Old Town Shoe case is not applicable to this proceeding. In these circumstances and upon the entire record, we believe and find that the Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act, and shall dismiss those allegations of the complaint." D. Interference , restraint , and coercion; the discriminatory discharge of Clardy 1. Summary of evidence As indicated above, in. the early part of November 1950, Union Organizer Pat Williams contacted employee Vernon W. Clardy with reference to organizing the Respondent's shop employees on behalf of the Union. Clardy spoke with the em- ployees , found they were interested in union organization, and reported such interest to Williams . Active union organization started December 15, when the Union began holding weekly meetings . Clardy attended practically all the meetings. He openly contacted Williams , who was organizing employees on the sidewalk in front of the plant . McCann admitted that he saw Williams standing on the sidewalk and "rather opposed the idea of his being out there ." Hearn first discovered the identity of Williams shortly after the 1950 Christmas party. He testified: Q. About how often did you see him ( Clardy ) out there talking to Mr. Williams? A. I went over there every week, every Tuesday from 3:00 until 5:00 and he was there sometime before I even knew who he was and I finally asked Mr. McCann who that fellow was and then he told me. I had no information, had no reason to believe that they were being organized. Didn't know a thing about it. Q. That is when you found out when you inquired as to who Williams was? 20 The General Counsel contends that, even if an 8 (a) (5) finding is not made, an affirma- tive order to bargain upon request should be entered against the Respondent under the authority of International Broadcasting Corporation, 99 NLRB 130 . We find no merit in this contention, as that principle of the International Broadcasting case is not apposite here. 322615 0 - 54 - 5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. That's right. That was after the little Christmas party that we had. I can nail it by that date. Clardy signed a union-application card on January 19, 1951, and testified on behalf of the Union at the representation hearing on March 29, 1951 .. McCann and Superintendent Hicks also testified at this hearing , and Hearn was present. On April 2 and 3, shortly after the close of the representa- tion hearing, Superintendent Hicks and McCann admittedly spoke to Clardy concerning his apparent dissatisfaction with his position. A similar conversation also took place between Clardy and Hicks on or about May 10, the day after the Board has issued its Decision and Direction of Election in the repre- sentation proceeding . According to Clardy , both Hicks and McCann questioned him inter alia concerning his interest in the Union , and McCann asked about his talks with Union Repre - sentative Williams. Concerning his conversation with Hicks on April 2 Clardy testified : Q. Just describe what was said in that conversation. A. He called me into his office and wanted to know what it was that I wasn't satisfied with around the plant or why it was that I wasn't satisfied . I told him I didn't know anything that I wasn't satisfied with . I asked him if he had heard any complaints out of me . He said he hadn't, but he said I seemed to be the only one that was very interested in a union , the only one that wanted a union. He wanted to know why I wanted a union. .. . And so he went on to say that he could tell I wasn't satisfied , that I seemed like I was the only one that was interested in a union and he felt -I ought to go back on the job or resign. Q. Do you remember anything that was said one way or the other about the representation hearing that had been held? A. He said he didn't appreciate me volunteer to testify in that hearing for the election. . . . According to him McCann is the one that made that statement. As to his conversation with McCann on April 3 , Clardy stated that he "asked me pretty much the same questions Mr. Hicks did"; but in addition "he wanted to know why it was I had to go out and talk to Mr. Williams every afternoon after working hours." McCann also asked Clardy at that time to resign. Clardy's conversation on May 10 with Hicks was "pretty much the same conversation there as we had had before." However, according to Clardy , Hicks also " wanted to know why it was I had to go out and talk to Mr . Williams every afternoon after work ," and offered to find Clardy a new job McCANN STEEL COMPANY 53 and give him $ 100 if he would resign. In reply to Clardy's refusal to leave his job and thereby lose his seniority, Hicks said "it would be better that way than it would the other" and that "McCann said he would personally see that I never got any further with the Company." Although both Hicks and McCann denied questioning Clardy concerning his union interest , both admitted they had spoken to him about his apparent dissatisfaction and suggested that he look for a job elsewhere . On direct examination Hicks testified: Q. Prior to that time had you had a conversation with Mr. Clardy relating to whether or not he was dissatisfied with his position there? A. Yes sir, I talked to him. Q. Why did you talk to him? A. Well, it just looked like he wasn't satisfied, he was doing a lot of standing around . . . he just wouldn't go on with his job and try to do it right for a while . . . he just didn't get his work out like he should for a while there and he was letting his men stand around too much. Q. When you asked him about whether or not he was satisfied what did he reply? A. He said "Oh, I am satisfied." Q. Did you ask him why he was trying to organize the Union? A. No sir. 0. Did you ask him to resign or quit his job? A. I didn't ask him to resign . I told him I would help him to get him another job if he wasn' t satisfied there and, that I would be glad to help him , recommend him. Hicks also denied that he offered Clardy $100 to quit and that he told Clardy that he or McCann "didn't appreciate him testi- fying as a witness in the representation hearing for the Labor Board." Hicks admitted that Clardy was a " good worker" and for that reason Hicks did not want to fire him or get rid of him. McCann testified concerning the conversation of April 3 as follows: Q. Did you ever attempt to get Mr. Clardy to quit his job or resign , did you ever talk to him about it? A. Yes, sir, I talked to him once . In fact, I called him in my office and asked him why he was dissatisfied. Q. Had you heard he was dissatisfied with the way the shop was being run? A. Yes; the way he was conducting his work and conduct- ing hisself it was very obvious he was dissatisfied ... and it has always been my policy if any of my employees want to . . . talk with me, they have full right to come to me ... so, in this instance I called him in and asked why 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was dissatisfied. I said "we don't want anybody working for us that is dissatisfied. If you are dissatisfied, I think the best thing to do is to find you another job some place." In addition, McCann denied that his conversation had any con- nection with Clardy's union activities. However, he admitted that he could not recall calling in other employees to discuss their work and that as of May 28 Clardy's work was satisfac- tory and McCann had not received any complaint about Clardy. According to the undisputed testimony," on May 23 Charles H. McCann, the regular assistant general manager who was also acting as plant superintendent due to the absence of Hicks, instructed Clardy to unload a carload of steel before quitting time so as to avoid paying demurrage . As it was near quitting time, Clardy told McCann that he expected to leave "when the whistle blew," but the latter insisted that the car be unloaded "if anyway possible." With the assistance of employee Dallas F. Brown and a 5-ton crane operated by Henry Manson, Clardy began unloading the steel. The crane, which traveled on over- head tracks, would drop a cable with a hook at the end of it. Clardy and Brown would attach the hook to another cable binding a bundle of steel, and signal Mansontolift the steel. The crane operator would lift the steel, carry it approximately 65 to 80 feet over the top of the shop, and then lower it in the proper storage spot. In this manner steel bars and beams weighing approximately 2 to 5 tons were unloaded. There remained 2 bundles of angle irons which, as indicated by the shipping notice that Clardy had, weighed approximately 9 tons each. Because of the position of the angle irons it would have been impossible to divide them into smaller loads and still complete unloading the car by closing time. Accordingly, Clardy and Brown, in order to finish the job before the end of the workday, attached the crane cable to the first 9-ton bundle. At the signal, Manson lifted the bundle and carried it away successfully. The second 9-ton bundle was also successfully lifted and carried to the spot where it was to be deposited, but then the crane's motor began smoking. Manson shouted to Clardy, "The motor is smoking, getting hot." Clardy said "Let's get it down as quick as we can," and immediately began placing timbers in position upon which Manson was able to lower the angle irons. The next day, May 24, Manson again used the 5-ton crane, this time to unload a truck of steel roof trusses. He spent approximately 1 hour unloading the trusses with the crane, which was not operating properly because "the motor would smoke ." Upon completion of the truss job, Manson reported to Hicks that the crane motor had been burned up the night before. According to Hicks, Manson reportedtohimas follows: 21 The findings as to what occurred on May 23 are based on the testimony of Clardy and Brown. Charles H. McCann and Manson, the only other persons involved in this incident, did not testify. 22 In addition to the 5-ton crane, the Respondent had a 10-ton crane which was being re- paired and therefore not in use on May 23 and 24 McCANN STEEL COMPANY 55 A. . . . (Manson) said "I just barely did get the trusses off. The crane motor, there is something the matter with it. . . . I unloaded some angles last night and I told Mr. Clardy that the motor was smoking and he said 'Oh, to hell with it, we have got to get these angles off'." That is exactly what he told me. Q. So he didn't report it to you until after he had used it some the next morning? A. Get that truck off, yes, sir. Hicks then called the electrician to repair the crane," and reported to McCann that the crane was burned out. Hicks was instructed to investigate and find out whose fault it was that the motor on the crane burned out. Hicks testified that he talked to the electrician and then reported to McCann what Manson had previously told him concerning the unloading of the angle irons. Hicks did not talk to Clardy. According to McCann, Hicks re- ported that after the crane operator had told Clardy that the load was too heavy and that the motor was smoking, Clardy replied, "To hell, let it burn up, we have got to get the steel loaded." Hicks and McCann then discussed the incident as well as the safety of men working underneath the overloaded crane. McCann decided that if Clardy " wasn't more interested in the welfare of the business than to do such a thing as that, we felt like he ought to be discharged." Following instructions from McCann, Hicks called Clardy to his office and discharged him. He accused Clardy of overloading and thereby burning out the crane, although Clardy blamed the operator for burning it out. According to Clardy, Hicks at that time again questioned him about the reasons why he wanted the Union, why he was dis- satisfied, and why he was the only man going out to talk with Union Organizer Williams. At the time of the May 24 discharge, Hicks gave Clardy 3 checks, 2 dated May 24 representing paychecks, and the third, dated May 23, representing a payment for vacation. McCann admitted that there would have been no occasion to give Clardy a vacation check under normal circumstances, and that it had been given at that time only because Clardy was being dis- charged. But the Respondent did not explain why the vacation check was dated May 23, in view of the fact that it did not learn until the next day of the overloading incident which allegedly motivated the decision to discharge Clardy. As indicated above , Manson , despite his knowledge of the defective condition of the crane, proceeded to unload the truck of steel trusses before reporting to Hicks. Both McCann and Hicks admitted that they would have stopped operations if they had known that the crane's motor had been burned. However, when asked on cross-examination why Manson had not been 23The repairs cost $263.56. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disciplined , McCann attempted to justify the Respondent's inaction on the ground that "he is just the operator" who "evidently" was following Hicks ' instructions ; while Hicks explained that Manson " thought he was doing his duty " despite his failure to report the crane ' s condition before unloading the trusses. On Monday , May 28, Williams sought to have McCann reinstate Clardy. He argued that Clardy had been therefor several years, that this was his first offense , and that he should be given another chance . McCann admitted that Clardy ' s work up until then "had been satisfactory ," but he refused to reinstate Clardy on the ground that the statement Clardy allegedly made to Manson about letting the crane "burn up " indicated an improper attitude towards his work. The record is replete withtestimony of the General Counsel's witnesses that overloading of the Respondent' s two cranes was a commonplace occurrence (frequently causing fuses to blow), that none of the employees involved were ever criticized or reprimanded , and that Hicks himself had overloaded the cranes. Both Hicks and McCann categorically denied they knew about any overloading . However, McCann admitted that railroad girders weighing 20 tons hadbeenmoved. u As the Respondent's 2 cranes had a total rated capacity of only 15 tons , McCann must have been aware that on at least that occasion the cranes had been overloaded. 2. Concluding findings a. Discrimination The evidence summarized above discloses that the Respondent was well aware of Clardy' s leadership in the organizational activities on behalf of the Union. Clardy not only was frequently observed conversing with Union Organizer Williams , but was one of the Union' s witnesses at the representation proceeding and participated in a conference between the Union and the Respondent to arrange for the Board-directed election . Further, both McCann and Superintendent Hicks not only interrogated Clardy about the Union but also tried to get him to resign and threatened him with loss of advancement with the Respondent because of his interest in the Union . In these circumstances and upon the entire record, we are satisfied that the General Counsel has made out a .Prima facie case that the Respondent's action in discharging Clardy on May 24 was rooted in its desire to discourage his union membership and activities. There remains for consideration the question as to whether the Respondent' s evidence refuted the General Counsel's prima facie case and established its defense that Clardy was dis- charged for cause. The Respondent contended that Clardy was responsible for overloading the crane and thereby created a U After hearing the testimony as to overloading by the numerous General Counsel wit- nesses, McCann offered to reinstate Clardy fully as of November 17, 1952. McCANN STEEL COMPANY 57 situation that was dangerous to other employees.25 However, although Clardy had overloaded the crane, we believe that, upon the entire record, the conclusion is inevitable that the Re- spondent merely seized upon this incident as a pretext to dis- charge Clardy for his union activities and interest. We base our conclusion on the record as a whole and particularly on the following significant facts, which are substantially undis- puted: 1. Both McCann and Hicks admitted that Clardy was a satisfactory employee and a good worker. 2. Although the 5- and 10-ton cranes were frequently over- loaded, Hicks and McCann denied knowing that fact. Yet McCann himself admitted that railroad girders weighing 20 tons had been moved and, therefore, he must have been aware of over- loading on at least that occasion. Accordingly, the denial of Hicks and McCann that they did not know about any overloading is not credited. 3. No employee was criticized or reprimanded for overload- ing. 4. Hicks' investigation of the May 23 incident was limited to Manson's version--a version that Manson in fact volunteered. Significantly, neither Clardy nor Brown, the other employee involved, was questioned by Hicks in his investigation. 5. No disciplinary action was taken against Manson even though it admittedly was his duty to report the condition of the crane and even though he had failed in that duty until after he again operated the crane the next day. 6. Finally, although McCann and Hicks testified that they were unaware of this incident until May 24, when they for the first time determined to discharge Clardy, itis significant that the vacation check given to Clardy was dated May 23. Such vacation check would have been given to Clardy only if he were about to be separated from his employ with the Respondent. This latter determination, according to the Respondent's offi- cials , was not made until May 24. Yet no plausible explana- tion was offered as to why this check was dated May 23, the day before the Respondent allegedly decided to discharge Clardy. In these circumstances, and upon the evidence in its entirety, we conclude and find that Clardy's discharge was unrelated to the crane incident but was, on the contrary, motivated by the Respondent's desire todiscourage Clardy's interestinthe Union and to forestall organization of its employees by the Union, and u In addition, the Respondent apparently argued that Clardy's alleged supervisory status afforded a defense to his discharge. In its earlier Decision and Direction of Election (Case No. 10-RC-1262) the Board found that Clardy was a nonsupervisory employee. The record in that proceeding was made part of the record herein, by stipulation of the parties The Board has considered the evidence in both the representation and present proceedings and concludes, as it did earlier, that Clardy was not a supervisor within the meaning of the Act. Accordingly, we adopt and reaffirm our earlier determination, and find no merit in the Respondent's argument. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent thereby engaged in unfair labor practices proscribed by Section 8 (a) (3) and ( 1) of the Act. 26 b. Interference , restraint , and coercion It is concluded and found that by the following conduct, the Respondent engaged in interference, restraint , and coercion within the meaning of Section 8 (a) (1) of the Act: 1. Interrogation of Clardy concerning his interest in the Union, including why he wanted the Union, why he often spoke to Union Organizer Williams, n and why he was dissatisfied. Hicks and McCann admitted that they asked Clardy about his apparent dissatisfaction but denied they questioned him about his union activities . They explained that Clardy's attitude towards his work and his fellow employees appeared to have changed. Yet , both also admitted that Clardy was a satisfactory employee and a good worker, and offered no reason to explain Clardy's alleged dissatisfaction, which appears to have coin- cided with his'well-known union activities and interests. Fur- ther, McCann went so far as to call Clardy into his office and speak with him in this connection , although he could recall no other occasion when he called in an employee and discussed his work. Thus, in the eyes of the Respondent' s responsible officials , Clardy's so- called dissatisfaction was, in effect, equivalent to his interest in the Union. If Clardy had not engaged in union activities, the Respondent would not have discovered any "dissatisfaction ." This view is also supported by Hearn' s testimony that Clardy "was against everything I was trying to do" because he was the only employee who would talk to Union Organizer Williams. Accordingly, we do not credit the denials of McCann and Hicks. 2. The suggestion by dicks and McCann that Clardy resign because it would be better that way and because he had no future with the Respondent. As with the interrogation covering Clardy's alleged dissatisfaction, so, too , here , there does not appear to be any other reasonable explanation for the Respondent' s attempt to get rid of Clardy except his union activities and interest. Clardy admittedly was a good worker, and the Respondent, absent a discriminatory motive , would normally want to retain him in its employ rather than encourage him to leave. 3. The statement made by Superintendent Hicks to employee Brown that there "wouldn' t be no raise until this union business was settled." According to Brown , this statement was made to him after he was promoted to Clardy' s leadman job and had requested to be paid what Clardy had been paid . Hicks denied making this statement . In view of our previous findings, we do 26 In view of our Decision and Order herein, we find it would serve no useful purpose to consider the General Counsel's contention that Clardy's discharge also violated Section 8 (a) (4) of the Act. Accordingly, we shall dismiss that allegation of the complaint See Apex Toledo Corporation, 101 NLRB 316. 27 Hearn admitted that he frequently saw Clardy talking to Williams, and that that caused him to inquire from McCann about Williams At that time, McCann told Hearn that Williams was a union organizer. McCANN STEEL COMPANY 59 not credit Hick's denial. As this statement clearly indicates that the benefits of the increased salary incident to the lead- man's job to which Brown had been promoted was not available to Brown because of the Union , it is coercive and violative of the Act. 28 4. Hearn' s statement to employees at the May 15 meeting that McCann and he would leave if the Union came into the shop. According to Clardy , Hearn stated that " there wasn't going to be any union around there . . . and if the union come in he would just pack up his bag and leave and if McCann was smart he would do the same thing which he thought he was ." Employees Brown and Gafford corroborated Clardy's testimony . Brown testified that Hearn had said "he [Hearn] had to fight and get out of it" if Williams the union organizer "had anything to do with it"; while Gafford testified that Hearn said that " if the Union came in . . . he [Hearn ] would just have to packup and leave ." Hearn denied making such a statement at anytime. However, upon the entire record and particularly in view of the corroborated testimony of Clardy , as well as Hearn' s equating union activities with opposition to his program for rehabilitating the Respondent, we do not credit Hearn' s denial . We find that Hearn threatened the employees that he and McCann would leave if the Union was successful . This amounted to a threat to close the plant or at best to continue under the old financial difficulties , and thus constituted not only a threat of loss of benefits but also of employment to all employees. 5. Hearn' s oral polling of the employees at the May 15 meeting as to whether they wanted Union Organizer Williams to speak, and his oral polling of the employees as to whether they wished to proceed with the election of June 5 that the Board has previously canceled. 19 In these circumstances, the pollings of employees amounted to seeking, perhaps indirectly but no less in practical effect , to require the employees to reveal their prounion and antiunion sentiments. We find , however , that the Respondent did not violate the Act in two alleged respects: (1) According to employee Bush , a union member, Hearn threatened to deprive the employees of the established credit union (called the McCann Bank ) if the Union organized the Company. Bush stated that Hearn allegedly made this statement at the company meeting of employees he attended after he first came back to work sometime between November 1 and 15, 1950. Hearn denied making such statement. We credit Hearn' s denial, as no other witness was produced to corroborate or support Bush' s testimony , although the statement was alleged to have been made where it would been heard by as many as 35 to 50 employees . Under these circumstances , we believe and find that the General Counsel failed to gstablish , by a preponderance of the evidence , that Hearn made such threat." 28 See Allen Fruit Company , Inc., 101 NLRB 761; Western Cottonoil Company, 95 NLRB 1433 29 The facts of these pollings are not in dispute. 30Because of our determination herein, we deem it unnecessary to consider the impact of Section 10 (b) of the Act on this allegation. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) The complaint alleges that the Respondent unilaterally granted wage increases to employees while the Union was their statutory representative . However, the Union was not recog- nized by the Respondent as such representative , and had not even made any request for recognition . Moreover , we are not satisfied that in granting the increases the Respondent intended to undermine unionization particularly in view of other evidence that it had granted similar increases before the advent of the Union. Accordingly, we find that the General Counsel has not sustained his burden of proof in this respect. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that 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 com- merce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices , we shall order that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent discharged Vernon W. Clardy because of his union membership and activities, and offered him reinstatement on November 17, 1952. It will therefore be ordered that the Respondent make him whole for any loss of pay which he may have suffered by reason of the Respondent' s discrimination against him , by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to November 17, 1952, less his net earnings 31 during said period . The back pay shall be computed in quarterly periods in the manner established by the Board in F . W. Woolworth Company , and the Respondent shall make such reports available to the agents of the Board as are provided therein.'s It has been found that the Respondent initiated , sponsored, interfered with, and dominated the Grievance Committee. As the Grievance Committee no longer exists , it will serve no purpose to enter our customary order directing the Respondent to withdraw recognition from andtodisestablishthe Committee as the representative of employees with respect to terms and conditions of employment. Accordingly , no such order shall be entered . However, we shall order the Respondent to cease and desist from granting recognition to the Grievance Committee, 31Crossett Lumber Company, 8 NLRB 440, 497; Republic Steel Corporation v. N.L.R.B., 311 U.S 7. 32 See F W. Woolworth Company, 90 NLRB 289. McCANN STEEL COMPANY 61 if it revives , or to any successor thereto, as such representa- tive. Since the unfair labor practices found to have been committed by the Respondent go to the ve ry heart of the Act and indicate an intent to interfere generally with the rights of employees guar- anteed by the Act, the preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. There- fore, in order to make more effective the interdependent guarantees of Section 7 and to prevent a recurrence of unfair labor practices which burden and obstruct commerce, we shall order the Respondent to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. On the basis of the above finding of fact and upon the entire record in the case, we make the following: CONCLUSIONS OF LAW 1. Shopmen's Local Union No. 733, International Association of Bridge , Structural & Ornamental Iron Workers , A. F. of L., is, and the Grievance Committee was , a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Vernon W. Clardy, thereby discouraging mem- bership in the Union , the Respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 ( a) (3) of the Act. 3. By initiating , sponsoring , interfering with, and dominating the Grievance Committee, the Respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (a) (2) of the Act. 4. By interfering with, restraining , and coercing its employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and ( 7) of the Act. 6. The Respondent has not violated Section 8 (a) (4) and (5) of the Act. ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, John H. McCann and Hazel E. McCann d/b/a McCann Steel Company, Nashville, Tennessee , its officers , agents , successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Shopmen's Local Union No. 733, International Association of Bridge, Structural & Orna- 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mental Iron Workers , A. F. of L., or in any other labor organi- zation of its employees , by discharging any of its employees, or by discriminating in any other manner in regard to their hire or -tenure of employment or any term or condition of employment. (b) Dominating or interfering with the formation or admin- istration of, or contributing financial or other support to, the Grievance Committee , or any other labor organization , includ- ing any successor to the Grievance Committee. (c) Recognizing the Grievance Committee, if it revives, or any successor thereto , as a bargaining representative unless certified. (d) In any 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- Shopmen's Local Union No. 733, International Association of Bridge , Structural & Ornamental Iron Workers , A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection , 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 organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Make whole Vernon W. Clardy in the manner set forth in the section entitled "The Remedy," for any loss of pay he may have suffered because of the discrimination against him. (b) Upon request, make available to the Board or its agents for examination and copying , all payroll records , social -security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of back pay under the terms of this Order. (c) Post at its plant at Nashville , Tennessee, copies of the notice attached hereto marked "Appendix A." 33 Copies of said notice , to be furnished by the Regional Director for the Tenth Region , shall, after being duly signed by the Respondent' s repre- sentative , be posted by it immediately upon the receipt thereof and be maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Tenth Region, in writing , within ten ( 10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent violated Section 8 (a) (4) and (5) of the Act. 33 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." McCANN STEEL COMPANY 63 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 i.ct, we hereby notify our employees that: WE WILL NOT discourage membership in Shopmen's Local Union No. 733, International Association of Bridge, Structural & Ornamental Iron Workers, A. F. of L., or any other labor organization , by discharging any of our em- ployees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT dominate or interfere with the formation or administration of, or contribute financial or other sup- port to, the Grievance Committee, or any other labor organization, including any successor to the Grievance Committee. WE WILL NOT recognize the Grievance Committee, if it revives, or any successor thereto, as a bargaining repre- sentative, unless certified. 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 Shopmen's Local Union No. 733, International Asso- ciation of Bridge, Structural & Ornamental Iron Workers, A. F. of L., or any other labor organization, 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 and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make Vernon W. Clardy whole for any loss of pay he may have suffered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from becoming or remaining, members of Shopmen's Local Union No. 733, International Association of Bridge, Structural & Ornamental Iron Workers, A. F. of L., or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act. We will not discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee because of membership in or nonmembership in any such labor organization. McCANN STEEL COMPANY, Employer. Dated ................ By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. LATE CHEVROLET COMPANY, INC . and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Case No. 32-CA-285. July 9, 1953 DECISION AND ORDER On April 23, 1953, Trial Examiner Richard N. Ivins issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Late Chevrolet Company, 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. Thereafter, the Respond- ent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are 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, 2 conclusions, 3 and recommendations of the Trial Examiner, with the exceptions, modifications, and additions noted below. 1. While we find, in agreement with the Trial Examiner, that because the Respondent operates as an integral part of a multistate enterprise, the Board should assert jurisdiction in this proceeding , we find as an additional reason for asserting jurisdiction the fact that the Respondent's purchases and sales in commerce, respectively, together represent in excess of 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Peterson]. 2 We correct the following misstatement of fact in the Trial Examiner's findings, which does not affect the validity of his ultimate conclusions nor our concurrence therein. It ap- pears from the record that Owen, not Cook as found by the Trial Examiner, spoke with Barnes on June 28 as certain of the employees were leaving work at noon. (IR p. 70). 3 We find no merit in the Respondent's contentions (1) that the charging party is not a labor organization within the meaning of the Act and (2) that its Local, Lodge 924, has not complied with the filing requirements of the Act. 106 NLRB No. 9.