Efco Manufacturing, Inc.

EFCO MANUFACTURING, INC. 245 Employer failed to file its objections within 5 days of the election as required by the Board' s Rules and Regulations, the objections were not timely filed . We find further, as the Regional Director did, that there were no extenuating circum- stances surrounding the failure to file the objections timely which would warrant a consideration of such untimely objec- tions. 2 Accordingly, we overrule the Employer ' s objections to the election. As a majority of the valid votes counted were cast for the Petitioner , and as the four unopened challenged ballots cannot affect the results of the election , we shall , as recommended by the Regional Director , certify the Petitioner as the bargaining representative of the employees in the appropriate unit. [The Board certified District No . 140, International Associa- tion of Machinists, AFL, as the designated collective-bargain- ing representative of the Employer ' s production and mainte- nance employees at its Grays Lake, Illinois, plant , including shipping , receiving, and stockroom employees , but excluding office clerical and plant clerical employees , professional employees , guards, and supervisors as defined in the Act.] Member Beeson took no part in the consideration of the above Third Supplemental Decision and Certification of Repre- sentatives. 2Cf. General Motors Corporation , Central Foundry Division , 107 NLRB 1096, where a union's objections were not filed within 5 days of the election , but were considered as timely filed because the Regional Director 's report on the employer's objections recommended a change in the results of the election , and the union's objections were filed within 5 days after service of the report. EFCO MANUFACTURING, INC. and UNITED STEELWORKERS OF AMERICA, CIO.' Case No. 1-CA-1296. April 15, 1954 DECISION AND ORDER On October 19, 1953, Trial Examiner W. Gerard Ryan issued his Intermediate Report in this case , finding that the Respondent had engaged in and was engaging in certain unfair labor prac- tices 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, the Union, and the General Counsel filed exceptions to the Intermediate Report . The Respondent and the Union also filed supporting briefs. The Board has reviewed the rulings made by the Trial Exam- iner at the hearing and finds that no prejudicial error was 'Herein called the Union. 108 NLRB No. 52. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committed . The rulings are hereby affirmed . The Board has considered the Intermediate Report , the exceptions and briefs, and the entire record in the case , and hereby adopts the find- ings , conclusions , and recommendations of the Trial Examiner with the following modifications: 1. The Trial Examiner found that the Respondent , on Feb- ruary 28 , 1952 , and at all times since , has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit , thereby violating Section 8 (a) (5) and ( 1) of the Act. In support of this finding he relied upon conduct which occurred after April 17, 1952 , namely, the solicitation of employees to return to work during the strike by advertisements in the Rhode Island Pendulum on April 17, 1952, and May 1, 1952 ; the solicitation by Respondent ' s Secre- tary and Treasurer Feiring of Patrick Fogarty to return to work during the strike ; a unilateral grant of a general wage increase on August 4, 1952, the day the Respondent received the Board' s decision in Case No . 1-CA-1149,2 finding it had refused on February 28, 1952 , and at all times thereafter, to bargain collectively with the Union in violation of Section 8 (a) (5); and by the Respondent ' s failure to reply to the Union's request for a bargaining conference based upon the Board's decision in,that case. Although the Respondent does not except to the findings of the facts upon which the Trial Examiner relied , it excepts to his conclusion that "on February 28, 1952 , and at all times since, the Respondent has refused to bargain collectively ," and to the recommendation that the Respondent be ordered to bargain collectively with the Union and embody any understanding reached in a signed agreement . In its brief, the Respondent argues that its refusal to bargain "was for a proper reason within the law of the case, " namely to secure review of the Board's alleged condonation of the Union ' s interruption of a peaceful labor -management relation during the term of the contract with the now defunct Efco Workers ' Union by its causing a schism among the employees . It also asserts that, having failed to sustain its views before the court of appeals, it has " complied withthe Court's mandate in every particular." The initial charge herein was filed on September 11, 1952, and served September 12, 1952 . The Trial Examiner , insofar as he finds a refusal on February 28, 1952, imports the date of the initial refusal to bargain as charged in the earlier com- plaint case . Although this case arose from that and involves conduct referable to the same certification , we think that the proscription in Section 10 (b) relates to "the charge" in a particular case, not to any charge of the same violation. As the 6 months prior to the filing and the service of the present charge began on March 12 , 1952 , the limitations in Section 2 Efco Manufacturing, Inc., 100 NLRB 423, enforced 203 F. 2d 458 (C. A. 1), decided March 22, 1953. EFCO MANUFACTURING, INC. 247 10 (b) require us to restrict our findings to refusals . there- after. Accordingly , we cannot adopt the Trial Exam- iner ' s finding of a refusal to bargain since February 28, 1952.9 During the hearing in the earlier case , on Thursday, April 10, 1952 , the Respondent' s representative , Attorney Milton G. Johnson , testified that "at no time after the certification of the Union should any action of the Respond- ent 'be understood to mean that at any point following certification did the Company adopt or acquiesce in the Board' s ruling . in that regard .' " 4 The strike in the present case had its inception in this testimony . The advertise- ments whereby the Respondent solicited the strikers to abandon the strike repeated the Respondent' s contention that the Union had been wrongly certified and urged the employees to rejoin those who were working "and leave a decision on the question of the C.I.O. status in the plant, to the courts where the matter is now pending." We think that such solicitation was clearly part of the pattern of illegal opposition to the recognition of the Union, and therefore violative of Section 8 (a) (1).1 However, we do not think that such solicitation can be regarded as evidence that the Respondent sought individual rather than collec- tive bargaining . Accordingly , we do not adopt the Trial Examiner ' s finding that it was also violative of Section 8 (a) (5). We agree with the Trial Examiner ' s findings that the Respondent violated Section 8 (a) (5) by its grant of a unilateral wage increase on August 4, 1952 , during the strike for recognition ; by stating that it would continue to refuse to deal with the Union until the Federal courts rule to the contrary ; and by failing to reply to the Union ' s bargain- ing requests of August 6 and 15, 1952.6 There remains the question of the effect to be given the fact that the Respondent has, since the issuance of the Interme- diate Report herein , complied with the court decree in Case No. 1-CA-1149 . 7 We find no merit to the Respondent' s conten- tion that such compliance purged it of all unfair labor practices of the same type committed before the date of its compliance 3International Union, U. A. W. -CIO, Local 291, et al. (Wisconsin Axle Division, Timken- Detroit Axle Co.), 92 NLRB 968 at 973, enforced 194 F. 2d 698 (C A. 7). 4Quoted in Efco Manufacturing, Inc., 100 NLRB 423 at 429. 5 See The Texas Company, 93 NLRB 1358 at 1361; West Coast Luggage Co., 105 NLRB 414. 6See N. L R. B v. Crompton- Highland Mills, Inc., 337 U. S. 217 at 223-226, rehearing denied 337 U. S. 950 , enforcing 70 NLRB 206. TSee supra footnote 2. On January 27, 1954, the Division of Operations of the General Counsel's office in Washington, D. C., received a final compliance report from the First Regional office in Case No. 1-CA-1149, indicating that the Respondent had posted the requisite notice and had held a series of negotiation conferences with the Union. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therewith. B However, we do think that there is little or no utility in a second affirmative bargaining order at this time. Accordingly, we shall only order that the Respondent cease and desist from the particular type of refusals involved herein. 2. The Trial Examiner found, and we agree, that the strikers, being unfair labor practice strikers, were entitled to immediate reinstatement upon application, and that the.Respondent should not have refused to offer reinstatement to those employees whose jobs no longer existed but who were qualified to perform available jobs at comparable pay or to those whose jobs were filled by replacements who were not discharged to make jobs available to them. 9 The Trial Examiner found that the Union letter of August 15, 1952, signed by Thomas Rusbino--notifying the Respondentthat the strike was officially terminated by a vote of the employees who had been on strike on Tuesday, August 12, 1952, and re- questing "in behalf of all the employees out on strike, whose names appear on the attached list . . . that they be immediately unconditionally reinstated"--constituted an unconditional appli- cation for the reinstatement of all those listed. The Respondent received this letter on Monday, August 18, when the plant resumed operations after the annual summer shutdown for vacation. On August 20, 1952, the Respondent's attorney, Milton G. Johnson, telephoned to Thomas Rusbino, the Union's repre- sentative. The Trial Examiner found it unnecessary to resolve the conflict in testimony as to whether or not Rusbino and Johnson agreed that the right to reinstatement of strikers should, thereafter, be limited only to those employees who applied individually, either in person or in letter, on the theory that the strikers' rights had already vested upon receipt of the Union's letter on August 18 by the Respondent and could not thereafter be waived by the Union. Sometime before this telephone conversation, Rusbino had provided employees with a standard form for individual applications. An unfair labor practice striker's tight to reinstatement arises upon an application to return. As a union may legiti- mately require that such strikers make individual application, we see no reason why it should not be permitted, absent in- jurious reliance by the employees involved or other discrimina- tory purposes, to agree to modify an earlier unconditional group request so as to require individual applications. m With- SOlin Industries, Inc., 86 NLRB 203 at 232-233, enforced 191 F. 2d 613 (C. A. 5). rehearing denied 192 F. 2d 799 (C. A. 5), petition for certification denied 343 U. S. 919, reconsideration denied 343 U. S. 970; Agar Packing & Provision Corporation, 81 NLRB 1262 at 1281, footnote 32. 9 Williams Motor Company v. N. L. R. B , 128 F. 2d 960, 966 (C. A. 8); Union Drawn Steel Co. v. N. L. R. B , 109 F. 2d 587, 592 (C. A. 3). io In this context we note that the cases cited by the Trial Examiner in support of his "vested right" theory are inapposite. There is an obvious distinction between a union's pro- vision for individual applications and a union's agreement that some of the individual strikers need not be reinstated at all. See Old Town Shoe Company, 90 NLRB 240 at 243, footnote 11, and cases cited herein. EFCO MANUFACTURING, INC. 249 out resolving the conflict in testimony , 11 the fact remains that all except 6 of 21 "strikers" listed inthe Union letter of August 15, 1952, made individual requests for reinstatement before the termination of the strike or between August 22 and 28, 1952, and a majority of these applied on the form-which Rusbino had prepared for that purpose . Under these circumstances , we think it reasonable to infer that, whatever Rusbino's intention, the Respondent at least had reason to accept Johnson's version of his conversation with Rusbino. Therefore, we consider it equita- ble to order that the back pay due those who individually applied but who were denied immediate reinstatement , or reinstatement for the reasons rejected above, be computed from the date on which they individually applied to the date on which they were reinstated or on which they are offered reinstatement . We also think it equitable under the circumstances to order that the Re spondent offer those who did not make individual application 12 immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority and other rights and privileges , dismissing , if necessary, any person hired by Respondent on or after April 14, 1952, within 5 days after their application for reinstatement and that they be made whole for any loss of pay which they may suffer there- after by reason of the Respondent ' s refusal to reinstate them upon such application. 3. As the Trial Examiner ' s finding in relation to Patrick Fogarty depends upon his resolution of credibility and we find no reason for refusing to accept his resolution , we find no merit to the Union' s exception thereto . Moreover, as we have found it inequitable to order the Respondent to award back pay to those who did not individually apply, we find that Patrick Fogarty is not entitled to be made whole for any loss of pay he may have suffered from August 22, 1952, to a time 3 weeks after the strike ended when the Respondent offered him reinstatement and he rejected the offer. 4. Although we do not pass upon the Trial Examiner ' s inter- pretation of the court decision in N. L. R. B. v. Longview Furniture Co., 206 F. 2d 274 (C. A.4), we agree with his finding that Donald Fulford's remark to Testoni exceeded the bounds of permissible , and predictable, picket- line abuse and warranted the Respondent ' s refusal to reinstate him upon his application. 13 "Member Murdock, however, does resolve the conflict in testimony . He credits Rusbino's clear and consistent testimony with respect to his conversation with Johnson as against the latter 's testimony which is confused and shifting. Accordingly, Member Murdock finds that there was no agreement to modify the earlier blanket unconditional request and to require individual applications for reinstatement. In his view, therefore, the rights of the unfair labor practice strikers to reinstatement and back pay must be measured by the Union 's unconditional request for reinstatement on August 12, 1952. II Paul Aslin or Eslin , Peter Dubuque, Joseph Molls, and Philip Wilcox. 13Although personally regarding such language as offensive , Member Murdock cannot agree that Fulford's profane characterization of Testoni constituted the kind of misconduct by a picket which justifies an employer in denying reinstatement to a striker . While the Board has 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Like the Trial Examiner, we find that Charles Arnold's alleged strike conduct differed significantly from that of Donald Fulford and that "if it did happen," it was insufficient to war- rant the Respondent ' s denial of reinstatement to him. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Efco Manufacturing , Inc., its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, CIO, or any other labor organization of their employ- ees, by discriminatorily refusing to reinstate any of its em- ployees or by otherwise discriminating in regard to their hire or tenure or conditions of employment. (b) Refusing to bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of the em- ployees in the appropriate unit by making unilateral wage in- creases and by ignoring requests for bargaining with respect to pay, wages, hours or employment , or other conditions of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to form labor organizations , to join or assist United Steelworkers of America, CIO, or any other labor or- ganization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such right maybe affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to employees Charles Arnold, John Clancy, James Cummisky, Eugene Jacques, and Raymond P. Reed immediate and full reinstatement to their former or substantially equiva- lent positions without prejudice to their seniority and other rights and privileges , dismissing , if necessary, any individual hired by the Respondent on or after April 14, 1952. (b) Upon application for reinstatement , offer to employees Paul Aslin, Peter Dubuque, Joseph Molis, and Philip Wilcox repeatedly stated it does not condone the use of profane epithets in the heat of picket- line animosity, it has nonetheless uniformly said that it does not ignore the realities of speech in the industrial world and has refused to hold that their use renders strikers unsuitable for further employment and justifies denial of reinstatement. Accordingly, Member Murdock would not undertake the job of drawing lines between profanity which may be deemed per- missible or not permissible as the basis for denial of reinstatement to strikers. EFCO MANUFACTURING, INC. 251 immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any individual hired by the Respondent on or after April 14, 1952. (c) Make whole the employees named inparagraph (a), above, and also John W. Bunnell, Sidney Ivens, Albert Leduc, John A. McKenna , Francis Earl Northrup , Ernest Provencher, and Joseph A. Trudell, in the manner set forth in the Intermediate Report in the section entitled "The Remedy," for any loss of pay which they may have suffered by reason of the Respondent's refusal to reinstate them within five (5) days after their indivi- dual applications for reinstatement , and make whole the em- ployees named in paragraph (b) above for any loss of pay which they may suffer thereafter by reason of the Respondent's refusal to reinstate them within five (5) days after their individual applications for reinstatement. (d) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-secu- rity payment records, timecards , personnel records and re- ports , and all other records necessary to analyze the amounts of back pay due. (e) Post at its plant in East Greenwich, Rhode Island, copies of the notice attached hereto marked "Appendix A." m Copies of such notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's authorized representative, be posted by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing 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. (f) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges discriminatory treatment of Armand Caron, Anthony Del Monico, Patrick Fogarty, Joseph E. Walsh, and Donald Fulford. Member Beeson took no part in the consideration of the above Decision and Order. JIn 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." 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in 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 agreement requiring membership in alabor organization as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of this union, or any other labor organization. WE WILL NOT discourage membership in United Steel- Workers of America, CIO, or in any other labor organiza- tion of our employees, by refusing to reinstate any of our employees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL OFFER the following employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed: Charles Arnold Eugene Jacques John Clancy Raymond P. Reed James Cummisky WE WILL make whole the foregoing five employees, and also John W. Bunnell, Sidney Ivens, Albert Leduc, John A. McKenna, Francis Earl Northrup, Ernest Provencher, and Joseph A. Trudell, for any loss of pay suffered by them as a result of the discrimination against them. Upon application for reinstatement, we will offer the following employees immediate and full reinstatement to their former or substantially equivalent positions without EFCO MANUFACTURING, INC. 253 prejudice to any seniority or other rights and privileges previously enjoyed: Paul Aslin ( Eslin ) Joseph Molis Peter Dubuque Philip Wilcox EFCO MANUFACTURING, INC., Employer. Dated . ............... By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges and amended charges filed by United Steelworkers of America, CIO, herein called the Union, the General Counsel oftheNational Labor Relations Board, herein called the General Counsel and the Board , respectively, by the Regional Director for the First Region (Boston, Massachusetts ), on January 21, 1953, issued a complaint against Efco Manufacturing, Inc., herein called the Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1). (3), and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, herein called the Act. Copies of the complaint , the charges and amended charges upon which the complaint was based, together with notice appearing thereon were duly served upon the Respondent and the Union With respect to the unfair labor practices , the complaint i alleged in substance that: On or about February 28, 1952, and at all times thereafter , in violation of Section 8 (a) (5) and (1) of the Act, the Respondent refused and continues to refuse to bargain collectively with the Union as the exclusive representative of all employees in an appropriate unit, such refusal caused the employees of the Respondent to strike on or about April 14, 1952, on or about August 7, 1952, and at all times thereafter , the Respondent, in violation of Sec- tion 8 (a) (5) and (1) of the Act, did again refuse and continues to refuse to bargain collec- tively with the Union and that such refusal to bargain prolonged the strike, on or about August 15, 1952, the Union in behalf of the employees who were on strike applied for re- instatement to their former or substantially equivalent positions of employment; and on or about August 22, 1952, the Respondent, in violation of Section 8 (a) (3) and (1) of the Act, refused and continues to refuse to reinstate certain named employees because they had selected or had become members of the Unionor had participated in the strike or had refused to work during such strike. The answer denied that the Union is a duly constituted repre- sentative of the Respondent , denied that the strikewas caused or prolonged by any unfair labor practice of the Respondent and denied that any of the employees named in the complaint were discriminated against in regard to hire or tenure or terms or conditions of employment. The answer also admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held before W. Gerard Ryan, the undersigned Trial Exam- iner , in Providence, Rhode Island, from March 4 to 11, 1953, inclusive. The General Counsel, the Respondent, and the Union participated in the hearing and were afforded full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues . The General Counsel's motion was granted to conform the pleadings to the proof with respect to minor matters relating to spelling of names not affecting any material mat- 'At the hearing, on motion by the General Counsel, the names of Douglas Arling and Roland Martin, alleged discriminatees , were stricken from the complaint. The complaint was further amended on motion by the General Counsel to allege, in paragraph 14 thereof , that Ernest Provencher was reinstated on August 31 instead of August 25, 1952; and that Albert Leduc was reinstated on October 14 instead of October 13, 1952. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ters alleged in the complaint. The parties were afforded an opportunity for oral argument and advised of their rights to file briefs, proposed findings of fact, and conclusions of law. The General Counsel participated in oral argument and filed a brief. The Respondent and the Union waived oral argument. The Respondent filed a brief. On the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT' L THE BUSINESS OF THE RESPONDENT 9 The Respondent is a corporation organized under and existing by virtue of the laws of the State of Rhode Island with its principal office and place of business at 60 Liberty Street in the city of East Greenwich, State of Rhode Island, where it is engaged in the manufacture, sale, and distribution of nuts and bolts and general machine work During the year 1952, a repre- sentative period, the Respondent purchased in excess of $ 50,000 of raw materials of which approximately 25 percent was shipped to the Respondent's East Greenwich, Rhode Island, plant from points outside the State of Rhode Island; during the same period the Respondent's sales exceeded $ 100,000 of which approximately 75 percent was made and shipped to points outside the State of Rhode Island IL THE ORGANIZATION INVOLVED United Steelworkers of America, CIO is a labor organization within the meaning of Section 2 (5) of the Act and admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Introduction and background On January 5, 1952, the Union was certified by the Board to be the statutory representative of the employees within a unit determined by the Board to be appropriate for the purposes of collective bargaining and described as follows: All production and maintenance employees of Respondent, including the shipping clerk, employed at its East Greenwich plant, exclusive of the assistants of the superintendent, the lead men, office clerical employees, professional employees, and all supervisors as defined in Section 2 (11) of the Act. The Respondent refused to recognize the Union or bargain with it and on July 31, 1952, the Board held that by refusing to bargain with the Union on and after February 28, 1952, the Re- spondent violated Section 8 (a) (5) and (1) of the Act 4 On April 14, 1952, some of the employees in the unit went on strike and stayed on strike until August 12, 1952, when the strikers voted to terminate the strike. By letter dated August 15, 1952, which the Respondent received on August 18, 1952, the Union notified the Respondent that the strike had terminated and requested reinstatement for all the strikers. B. The refusal to bargain 1. The appropriate unit The complaint alleged, the answer admitted, and I find that all production and maintenance employees of the Respondent, including the shipping clerk, employed at its East Greenwich plant, exclusive of the assistants to the superintendent, the leadmen, office clerical employees, 2In making the findings herein I have considered and weighed the entire evidence. It would needlessly burden this Report to set up all the testimony on disputed points. Such testimony or other evidence as is in conflict with the findings herein is not credited. 3 These findings are the same findings made in Efco Manufacturing, Inc., a proceeding in- volving the same parties which the parties stipulated apply herein (100 NLRB 423, enfd. 203 F. 2d 458). 4Efco Manufacturing, Inc., 100 NLRB 423, enfd. 203 F. 2d 458. EFCO MANUFACTURING, INC. 255 professional employees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2 The majority On January 5, 1952, the Union was certified by the Board as the exclusive bargaining repre- sentative of the employees in the foregoing unit. Accordingly, I find that since January 5, 1952, the Union has been and now is the exclusive representative of the employees of the Respondent within the above-described unit for the purposes of collective bargaining within the meaning of the Act. 3 The refusal to bargain The answer admitted the allegation in the complaint that on or about February 28, 1952, and at all times thereafter , the Respondent did refuse and continues to refuse to bargain collectively with the Union as the exclusive representative of all the employees in the unit above described. The answer denied that on or about August 7, 1952, and at all times thereafter, the Respondent did again refuse and continues to refuse to bargain collectively with the Union as the exclusive representative of all the employees in the unit above described. The record shows conclusively that at all times since the Union was certified by the Board the Respondent has refused to bargain with the Union; and that because of such refusal to bar- gain some of the employees of the Respondent, on or about April 14, 1952, went out on strike to compel the Respondent to bargain with theUnion The strike lasted until on or about August 15, 1952. During the course of the strike, Monroe J Feiring, the Respondent's secretary and treasurer, asked employee Patrick Fogarty to return to work and directed Fogarty's attention to the fact that there were a lot of tools on the floor to be ground. Fogarty refused to return to work during the strike. Such individual solicitation of an unfair labor practice striker to return to work has long been held to be violative of Section 8 (a) (5) and (1) of the Act (West Coast Luggage Co , 105 NLRB 414) 5 During the course of the strike and on August 4, 1952, the Respondent granted a general wage increase without consultattd►i with the Union Such unilateral institution of wage increases in itself violated Section 8 (a) (5) and (1) of the Act. See May Department Stores v. N. L. P. B., 326 U. S. 376, 383; N. L. R B. v. Dealers Engine Rebuilders. Inc , 199 F. 2d 249, 251-252. Following the Board's decision onJuly 31, 1952, in the prior complaint proceeding 6 ordering the Respondent to bargain with the Union, the Union wrote to the Respondent on August 6, 1952, requesting a meeting with the Respondent for the purposes of collective bargaining . The Union received no reply from the Respondent. On the basis of the entire record Ifind that on February 28, 1952, and at all times since, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the above-described appropriate unit, thereby violating Section 8 (a) (5) and (1) o{'the Act. C. The refusal to reinstate the strikers The complaint alleged that the Respondent in violation of Section 8 (a) (1) and (3) of the Act discriminatorily refused to reinstate 21 strikers following their unconditional application upon termination of the strike. Thirteen strikers, John W. Bunnell, Armand Caron, Charles Arnold, James Cummisky, John Clancy, Eugene Jacques, Raymond P. Reed, Donald Fulford, Philip Wilcox, Joseph Molls, Patrick Fogarty, Peter Dubuque, and Paul Aslin7 were not reinstated. Eight strikers were reinstated on the following dates: Anthony Del Momco, August 25, 1952, Ernest Provencher, August 31, 1952, Sidney Ivens and Joseph E. Walsh, September 5, 1952, Francis Earl Northrup,8 September 4, 1952, John A. McKenna, September 5, 1952,9Joseph 5 Further solicitation of the strikers to return to work is contained in the Respondent's newspaper advertisements (General Counsel's Exhibits Nos. 2 and 4). 6Refer to footnote 4. 7 Also referred to in the record as Paul Eslin. 8AIso referred to in the record as Earl Northrup. 9 Although the complaint alleged that John A. McKenna was reinstated on September 22, 1952, the General Counsel stated on the record that no discrimination is claimed after September 5, 1952. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Trudell, September 22,1952, and Albert Leduc, October 14, 1952 All 21 strikers were listed in the Union's letter requesting unconditional reinstatement which the Respondent received on August 18, 1952. In addition to the blanket request for reinstatement contained in the Union's letter, all the strikers, except Paul Aslin, Peter Dubuque, Patrick Fogarty, Joseph Molls, and Philip Wilcox made individual requests for reinstatement. The Respondent admitted it did not offer reinstatement to anyone as a result of the Union's letter but waited until the strikers applied in person or by individual letter From August 8 to 18, 1952, the Respondent's plant was closed for the annual summer vacation.10 During that week's vacation, the Union terminated the strike but it was not until receipt of the Union's letter on August 18 that the Respondent was aware that the strike had ended. After the strike commenced on April 14, 1952, and during the strike, the Respondent hired new employees to replace the strikers, 14 of whom were still working on and after August 18 when the Respondent received the unconditional application from the Union for reinstatement of the strikers. ii Feiring admitted that some of the persons hired during the strike remained at work several months after the strike ended, and some are still working for the Respondent. The strike which occurred on or about April 14, 1952, and lasted until August 15, 1952, was caused and prolonged by the unfair labor practices of the Respondent in refusing to bargain with the Union. It was prolonged after August 7, 1952, by the refusal of the Respondent to bar- gain following the Union's further request in a letter dated August 6, 1952. The Union as certified bargaining agent represented the strikers in respect to all matters of collective bargaining as well as those matters which pertained solely to the strike The Union as statutory bargaining representative of the strikers had the necessary authority to make application for reinstatement of the strikers, as was held in Brown & Root, Inc., 99 NLRB 1031, 203 F. 2d 139, where, at page 147, the court held that where the union had unequivocally demanded re- instatement for those whose names were listed, the strikers were not thereafter required to apply individually in order to be entitled to reinstatement. The court stated: We can think of no valid reason why a labor union which is the collective bargaining agent for employees who have been out on strike cannot effectively represent them in applying for reinstatement , even though the employer insists that they apply personally for reemployment Thus the Respondent was presented with a complete reinstatement request for all the strikers and nothing further was necessary to create an immediate obligation on the part of the Respondent to offer reinstatement to all the strikers and the strikers ' corresponding rights to reinstatement. The strikers' rights had already vested and could not be waived by the Union in the subsequent conversation between Thomas Rusbino, the Union's representative, and Milton G Johnson, the attorney for the Respondent12 (Old Town Shoe Company, 91 NLRB 240, Kansas Milling Company, 86 NLRB 925, N. L. R. B. v. Poultrymen's Service Corp., 138 F. 2d 204, enforcing 44 NLRB 444). 10 Prior to vacation and in preparation for it, the routing of production scheduling was dis- rupted in order to complete as much work as possible for shipments. Much of the work was taken out of production to protect and preserve materials in,the process of manufacture which might be spoiled by the interruption of processing. Beginning August 18, it took until August 22 before normal operations at the plant were resumed. liThe 14 new employees retained in their jobs after August 18 were Stephen Boick, David Brogden, George Coleman, Cornelius Fitton, Paul Knapp, Edward La Colle, Leo La Flamme, Frederick Lake, Alcide Langevin, Russell Lund, William Masterson, Fred McLaughlin, and Joseph Molacone. 12 On August 20, 1952, the Respondent's attorney, Milton G. Johnson, telephoned to Thomas Rusbino, the Union's representative, and the testimony is in dispute whether Rusbino and Johnson agreed that the right to reinstatement should be limited only to those employees who applied individually either in person or by letter. I find it unnecessary to resolve such con- flict, since the strikers' rights had already vested upon receipt of the Union's letter on August 118 by the Respondent and could not thereafter be waived by the Union. The situation here is distinguishable from American Manufacturing Company of Texas, 98 NLRB 226, where the Board found the union's written request constituted an incomplete back-to-work application since the letter expressly confirmed an earlier telephonic conversation in which it was agreed that the strikers should report individually to, indicate their availability and to ascertain whether or not their jobs were still available. EFCO MANUFACTURING, INC. 257 The Respondent on September 5,1952, sent the following form letter to some of the strikers: Your letter of (date) requesting reinstatement , has been received along with those of 20 others who were on strike. Revision of plant operation is now in process, with a view to re-integrating as many of these applicants as the law and company policies encompass We will be in touch with you at the earliest possible date The Respondent on October 30, 1952, sent the following letter to Charles Arnold and Donald Fulford: The Company has carefully reviewed your request for re-instatement to employment, and has come to the conclusion that your conduct of intimidation, attempted violence and threats of violence, during the recent strike, was such, that you are not entitled to reinstatement and your application is herewith rejected The Leach grinding department was discontinued during the strike as an economic measure and at the time of the hearing had not been resumed . The General Counsel makes no claim that such discontinuance was discriminatory. The Respondent on November 14, 1952, sent the following letter to certain employees re- ferred to infra' This is to inform you that Efco has placed your name on a preferential hiring list In the event that Efco re-established the department you were working prior to our recent strike, you will be given the opportunity of being re-employed here, before Efco will seek any additional employees. We sincerely regret that Efco had to discontinue the assembly of Leach Grinders in our plant. The Respondent on November 19, 1952, sent the following letter to Eugene Jacques: We have just received your letter of November 17th, stating that you will soon be going into the Armed Services. As we told you, your name is on our preferential list, and if, when you return, you desire to again work at Efco, we will be glad to interview you for reinstatement We extend to you our wishes for the Best of Luck. Joseph A. Trudell Trudell did not testify. He was included in the Union's request for reinstatement received by the Respondent on August 18, 1952, following which Trudell also wrote an individual letter requesting reinstatement. 13 Fearing testified that he received Trudell's letter on August 22 and answered it by letter dated September 16 which was received on September 17, and that Trudell was returned to work on September 22. Feiring further testified that the delay in reinstating Trudell was occasioned by the problems presented in getting the plant back into operation after the vacation and further that he did not ask him to return sooner because Trudell had been agitating vigorously for the labor faction in the plant who went out on strike as against the faction that did not join the strike, that Trudell had actively represented a divisionof the employees as to union activities and that Feiring had decided as a matter of business policy not to reinstate Trudell until all the other employees whom he deemed to be entitled to reinstatement had been returned to work. As the strike of April 14 was anunfair labor practice strike, and as the Respondent's right to re- place the strikers was vulnerable, M the Respondent violated Section 8 (a) (1) and (3) of the Act by refusing to reinstate Trudell when unconditionally requested so to do by the Union Re- spondent's defense that some delay was occasioned by the exigencies arising at the plant in i3All dates hereinafter mentioned refer to the year 1952 unless otherwise stated, i4Seven-Up Bottling Company of Miami, Inc., 92 NLRB 1622; Black Diamond Steamship Corporation v. N. L. R. B. , 94 F. 2d 875; cert, den. 304 U. S. 579. 339676 0 - 55 - 18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD getting back into operation after the vacation period is without merit , first, because of the fact that the Respondent had decided that Trudell would be among the last reinstated ; and second, because of the Board 's usual rule that any loss arising from the Respondent' s delay in rein- stating the strikers should be borne by the Respondent , whose unfair labor practices caused the strike , rather than by the employees who went on strike in protest against those practices, and who fulfilled their obligation by making unconditional application for reinstatement.16 I shall therefore recommend that the Respondent make Trudell whole for any loss of earnings suffered by him between August 22 and September 22. Albert Leduc Leduc did not testify. Feiring testified that Leduc was hired to run a milling machine but for 2 or 3 months prior to the strike Leduc had been running a No. 3 Warner & Swasey machine in the turret lathe department. Leduc was included in the Union ' s blanket request for reinstate- ment which the Respondent received on August 18, 1952 , and in addition Leduc wrote a letter requesting reinstatement which the Respondent received on or about August 25. Feiring testified that the Respondent did not send a letter to Leduc ; that within 1 week after the end of the strike, Leduc telephoned to the plant and said he was interested in returning to work provided he worked only ona Warner & Swasey lathe Feiring replied he could not be sure of that and Leduc said he was not interested in coming back to work unless he had that machine to run. Leduc again telephoned a few days later; and, a few days following that telephone call , Feiring testified that an opening occurred in the turret lathe department and the Respondent notified him by letter Leduc returned to work on October 14, 1952. Feiring testified that when the strike ended there were several people in the turret- lathe department running lathes . The record further shows that the following employees who were hired during the strike were still operating lathes in the turret lathe department at the time of the hearing : Stephen Boick, Edward Amoroso, and William Masterson. Feiring further stated that he did not and would not transfer the person who was then workingon the No. 3 Warner & Swasey Machine to some other job or lay him off if necessary to make room for Leduc. As the strike of April 14, 1952, was an unfair labor practice strike and as the Respondent's right to replace the strikers was therefore vulnerable , 16 the Respondent violated Section 8 (a) (1) and (3) of the Act by refusing to reinstate Leduc when unconditionally requested to do so by the Union. I shall therefore recommend that the Respondent make Leduc whole for any loss of. earnings between August 22, 1952, and October 14, 1952. Ernest Provencher Provencher did not testify . His name was included in the Union 's written request for rein- statement of the strikers which the Respondent received on August 18 . He was reinstated to his job on August 25. Asanunfairlaborpractice striker, Provencher was entitled to reinstatement upon application , and the Respondent 's refusal to honor the application for reinstatement violated Section 8 (a) (1) and (3) of the Act. 17 Francis Earl Northrup Northrup did not testify. He was included in the Union's blanket request for reinstatement of the strikers, which the Respondent received on August 18. Northrup also applied individually by letter which the Respondent received on August 22. On August 29 the Respondent wrote to him to report to the officeatonce . He received the letter on September 2 and returned to work on September 4. Feiring offered theexplanation for the delay between August 22 and 29 when it sent him the letter by the fact that August 22 was Friday and he could not have done anything about Northrup's letter until the next Monday which was August 25 Feiring also testified that shop problems , the question as to how many men would return, etc , all accounted for the delay in notifying Northrup. Feiring testified that Northrup is one of the most versatile men in the plant and was never assigned to any particular department ; that his value to the company is that he can adapt himself readily to many different jobs. He was not returned to work in the is Universal Food Service, Inc., 104 NLRB 1. 16 See footnote 14. 17 Home Beneficial Life Insurance company v . N. L. R. B , 159 F. 2d 280 , 291; cert. den. 332 U. S. 758. EFCO MANUFACTURING, INC. 259 grinding department although he had operated a Besley grinder in that department prior to the strike . The Respondent 's defense to explain the delay in recalling Northrup that it was because of the exigencies arising at the plant is not sufficient . ia As an unfair labor practice striker, Northrup was entitled to his job when the Union made unconditional application for his return to work . I find , accordingly , that the Respondent violated Section 8 (a) (1) and (3) of the Act by failing to reinstate him to his former position or substantially equivalent employment from August 22 to September 4. John A. McKenna McKenna was present at the hearing but did not testify . He was present when Feiring testified and the record shows that the General Counsel stated that he had conferred with McKenna and that McKenna confirmed Feiring 's testimony. While the complaint alleged that the Respondent discriminated against McKenna by not reinstating him until September 22, 1952, the General Counsel stated, after the conclusion of Feiring's testimony , that no claim was for discrimination against McKenna subsequent to September 5. He returned to work on September 22. McKenna was president of the Local , and was one of the Respondent 's oldest employees in point of service. For some time prior to the strike, McKenna had been working as an operator in the bench working department on a production basis. Later an arrangement was made with McKenna , since he did not want todo incentive work, that he get a higher level of base pay with the understanding that since he was a steady worker he would "hold his own " as far as his earnings in the plant were concerned TheCompanywas satisfied that he not do incentive work because, as Feiring testified, McKenna had always given a fair day's work for his pay When the Leach grinding department was opened McKenna did assembly work there for-several months before the strike. Feiring testified that when the strike was over he was presented with the problem of not having the type of work that McKenna had been doing prior to the strike because the Leach grinding department had been discontinued ; and Feiring did not want to put McKenna back to work in the bench department on a production basis where he had been doing most of his work before going into the Leach grinding department . Feiring thereupon on September 5 wrote a letter to McKenna who telephoned within a few days and made an appoint- ment for a date approximately 1 week after the September 5 letter . McKenna did not keep that appointment and it was almost 2 weeks later before he finally kept the second appointment to see Feiring Feiring explained to McKenna that all who were returning to work at their old jobs were getting an increase in pay of approximately 15 cents an hour because of the general wage increase Feiring offered to create a new job for McKenna , that of "tool crib attendant" and to pay him $1 25 per hour which wag, the rate McKenna was getting at the time of the strike The newly created job of tool crib attendant required McKenna to keep track of all the tools in the shop , giving a tool to an employee when needed and taking appropriate receipt therefor , and give out , as needed , certain supplies , in the form of perishables , e g., oil for machines , or compound to be used to prevent the floors from being slippery , and also to order such material when the supply gets low Fearing told McKenna that he wanted him to be happy at the job and did not want him to think he was taking anything from him McKenna replied that he thought it was an excellent job which he would understand easily as he knew his way around the shop, knew the men and the tools , and agreed that it was a happy arrangement McKenna asked as a favor that Fearing allow him an additional week before returning to work because he had a personal problem to take care of before returning to work and stated that problem was the reason he had not been able , to keep the original appointment with Fearing. Feiring was satisfied in view of the fact that the Respondent had been without a tool crib attendant for 6 years and felt it could wait another week Accordingly, on the foregoing basis, McKenna was returned to work in a jobhe wanted and at a salary rate McKenna admitted was fair. I find , accordingly , that by failing to gape to McKenna the general wage increase of 15 cents an hour the Respondent did not discriminate against McKenna McKenna, however, as an unfair labor striker whose name had been included in the Union 's blanket request for re- instatement which was received by the Respondent on August 18, was entitled to an offer of employment to his position or substantially equivalent employment . Since his job was no longer available in the Leach grinding department which had , for economic reasons, been discontinued, he was entitled to reinstatement to a job in the bench department where he had been working before he was transferred to the Leach department The Respondent's defense that it could >s See footnote 15. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not see putting him back to work in the bench department on a production basis where McKenna had been doing most of his work prior to transfer to the Leach grinding department is in- sufficient. As an unfair labor practice striker, McKenna, application having been made for his reinstatement, was entitled to an offer of reinstatement to his job or substantially equivalent employment. Accordingly, I find that by failing to offer him employment prior to September 5, the Respondent violated Section 8 (a) (1) and (3) of the Act. He should be made whole for any loss of earnings between August 22 and September 5 Sidney Ivens Sidney Ivens was included in the blanket list of strikers for whom the Union unconditionally applied for reinstatement in a letter received by the Respondent on August 18. Ivens also applied individually for reinstatement by letter which the Respondent received on August 22. He was reinstated on September 2. Feiring testified that prior to the strike, Ivens was doing most of his work making parts for the Leach grinders. Feiring further testified that becausethe assembly of Leach grinders had been discontinued, the actual type of work that Ivens was doing prior to the strike was completely upset when Ivens returned. Feiring further testified that he knew Del Monico was returning to work; and that he laidoffa new employee (Russell Lund) who had been hired during the strike, in order to reinstate Ivens since the type of work that Ivens had been doing before the strike was no longer available. Feiring testified that he knew that some of the strikers who sent in letters applying for reinstatement were not going to return to work, so he waited to see what would happen, and as soon as he heard that Ivens was returning to work, he laid off Lund. The record shows, however, that Ivens' letter was received on August 22, and Lund did not quit or was not laid off until August 29 In any event, Ivens was included in the Union's request which was received on August 18. As the strike was an unfair labor practice strike, the Respondent violated Section 8 (a) (1) and (3) by failing to reinstate Ivens before September 2 when unconditionally requested so to do by the Union The Respondent's defense that some delay was occasioned by the exigencies arising at the plant in getting back into operation is not sufficient. Any loss arising from the Respondent's delay in reinstating the strikers should be borne by the Respondent, whose unfair labor practices caused the strike, rather than by the employees who went on strike in protest against those practices, and who fulfilled their obligation by making unconditional application for reinstatement 19 Ishalltherefore recommend that the Respondent make Ivens whole for any loss of earnings suffered by him between August 22 and September 22, John W. Bunnell Bunnell did not testify at the hearing At the time he went out on strike, Bunnell was em- ployed in the shipping department, which at that time had 4 employees, including Bunnell. When the strike ended, Bunnell was included in the list contained in the Union's letter requesting re- instatement which the Respondent received on August 18, 1952, and in addition thereto. Bunnell wrote an individual letter requesting reinstatement which the Respondent received on August 22, 1952 During the strike the shipping department operated with 3 employees,West, Fishell, and Lillibridge, all of whom had been employed by the Respondent prior to the strike Bunnell was senior in point of service to West When the strike ended, there was not enough work in the shipping department to require more than 3 employees. The Respondent's policy on seniority with respect to layoffs was that "all other things equal," those with the least senior- ity would be the first to be laid off. Since Bunnell was entitled to reinstatement upon application as an unfair labor practice striker, he was entitled to his job in the shipping department even though that required the Respondent to lay off West if reduction in force was necessary. The record shows that approximately 1 week or 10 days after the strike ended, Edward C. Coleman, office manager and assistant treasurer of the Respondent, met Bunnell on the street and re- marked now that the strike was over he supposed he would see Bunnell back to work. Bunnell replied that he might as well forget about him that he was going to work the next morning at Ideal Windglass Company in East Greenwich Coleman reported the conversation to Fearing. Upon all the evidence and the entire record, I find that the Respondent violated Section 8 (a) (3) and (1) of the Act by refusing to reinstate Bunnell from August 22, 1952, until the time when he notified the Respondent it might as well forget about him as he was going to work the day following for Ideal Windglass Company. 19 See footnote 15. EFCO MANUFACTURING, INC. 2: 1 Paul Aslin, Peter Dubuque, Joseph Molts, and Philip Wilcox The Respondent's defense for not reinstating Aslin, Dubuque, Molts, and Wilcox is that they did not apply individually either in person or by letter for reinstatement Since I find that the Union's request for reinstatement for all the strikers contained in its letter received by the Respondent on August 18 was sufficient, there is no merit in the Respondent's defense. The strike was caused and prolonged by the Respondent's unfair labor practices and the strikers were entitled to reinstatement, upon the Union's request for their reinstatement I therefore find that in refusing to make an offer of reinstatement to Aslin, Dubuque, Molls, and Wilcox, the Respondent violated Section 8 (a) (3) and (1) of the Act. Charles Arnold The Respondent's defense to the reinstatement of Charles Arnold is that one day in the early part of the strike he called Mario Testoni a "wop-bastard" while Testoni was entering the plant. The second defense for not reinstating Arnold is that he rode as a passenger with Donald Fulford in Fulford's automobile and that Fulford's automobile in overtaking and pas- sing Feiring's automobile swerved to the right and cut across in front of Feiring's automobile, thereby causing Feiring to apply his brakes sharply and swerve to the right in order to avoid a collision. Fearing testified that Arnold laughed "with great glee" at Feiring's discomfiture. For the reasons stated infra in determining that episode, if it did happen, was insufficient to deny reinstatement to Donald Fulford, I find that it is insufficient to deny reinstatement to Charles Arnold. 20 The third defense relied upon by the Respondent is that one day in the early part of the strike, Charles Arnold invited Feiring to go with him behind the telephone com- pany's garage and that Arnold would " beat him up" as a means of settling the labor strike Felting testified that Arnold repeated the challenge and when Feiring did not accept inquired if Feiring were "yellow." Fearing thereupon turned and walked away. While such invitation may have been impolite , I find that it is not sufficient to deny to Arnold reinstatement rights. Nor is the fact that Arnold called Testoni the impolite name referred to sufficient to deny him reinstatement. N. L. P. B, v. Deena Artware, Inc., 198 F. 2d 645, 652, cert denied , 345 U. S. 906; N. L. R. B. v. Reed & Prince Mfg , 118 F. 2d 874, 887-888 (C. A. 1), cert. denied, 313 U. S. 595. Accordingly I find that the Respondent discriminatorily refused to reinstate Charles Arnold following application for his job, since August 22, 1952, thereby violating Section 8 (a) (3) and (1) of the Act. Raymond P. Reed Reed had two periods of employment at the Respondent 's plant. The first period was from October 1950 to March 1951. The second period was from November 26, 1951. Beginning November 26, 1951 , until he joined the strike on April 14, 1952, Reed was employed exclu- sively as a scraper in the Leach grinding department As already shown above, the Leach grinding department was discontinued during the strike for economic reasons and at the time of the hearing had not been resumed . Reed was included in the Union ' s request for reinstate- ment of the strikers received by the Respondent on August 18, and an individual request by letter from Reed was received by the Respondent on August 22. There is no dispute concerning the fact that when the strike ended there was no job for Reed as a scraper because the Leach grinding department had been discontinued The Respondent notified him by letter dated November 14 that his name had been placed on a preferential hiring list and in the event that the Leach grinding department is reestablished he will be given the opportunity of reemploy- ment before the Respondent seeks any additional employees The critical issue presented here is whether there is any substantially equivalent work to which Reed may be reinstated . It is conceded that there is no substantially equivalent job to that of scraper. However, during the first period of Reed's employment from October 1950 to March 1951, he had worked in the bench department, the handworking department, and the drill department. In the bench department hehad done various jobs, such as snagging and filing. Feiring testified that Reed had received an increase in pay from $1 per hour to $1 05 per hour on January 28, 1951, and that Reed quit in March 1951, when the Respondent refused to give 20 Feiring's testimony that Arnold laughed at the time is evidence as to what Feiring observed; but that he was laughing at Feiring's discomfiture is a conclusion of Feiring's which may or may not be a fact. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him a further increase in pay. Feiring further testified that the Respondent advertised for scrapers some months before the strike and that Reed applied for a scraper job Feiring fur- ther testified that he told Reed that hehad been unsatisfactory but Reed replied that he did not want his old job--that he wanted the Respondent to give him a "try" as a scraper . Feiring testified that he told Reed he would give him a trial as a scraper only, that thereafter Reed's work as a scraper was "not too good" and that in order to stay as a "re-work" scraper, he took that demotion and a small cut in salary rather than be discharged. Feiring testified that Reed was not qualified for any other job. Reed testified that no one ever told him his work was unsatisfactory when he left after giving notice to the Respondent inMarch1951 . He testified that when he applied for the job of scraper on November 21, 1951, he had no conversation at all with Feiring, but was hired by Charles Ward who was the foreman in the Leach department at a rate of $1.30 as a scraper after Ward had obtained permission from theoffice Reed testified further that he worked as a scraper for about 6 weeks and then Ward told him he wanted Reed to assist Ward in the grinding and final assembly operations in the same department and that Reed then did that other work ; that after he had been doing grinding and assembly work for approximately 1 month, Ward informed him that Feiring said Reed 's rate should have been cut when he went from scraping work to assem- bly work , and after some talk about it, Reed accepted a cut in pay to $1 . 10 per hour , protesting to Ward, however , that if Reed had not been building up for an old -age pension, he would quit on the spot Reed remained on the job at $ 1 . 10 per hour until he joined the strike on April 14, 1952. As an unfair labor practice striker , he remained an employee of the Respondent during the strike and was entitled to reinstatement upon conclusion of the strike and after proper appli- cation To provide employment for the strikers, if necessary , the Respondent was obligated to discharge replacements hired after the strike began , and to demote or transfer other em- ployees who had been promoted or transferred into the positions of strikers, back to their former positions or classifications It appears clearly in the record that Reed had worked in other classifications or positions with the Respondent , other than as a scraper. He was not discharged for unsatisfactory work in those other positions but had quit after he had given his second notice to the Respondent. The Respondent had prevailed upon him not to quit when he gave his first notice but within a few days notified the Respondent he would definitely quit and not to ask him to change his mind about it. Upon all the evidence and the entire record, I find that the Respondent 's defense that there was no job available for Reed is not sufficient for there were jobs in the Company for which he was qualified , and which he had done during his first period of employment with the Respondent in the bench department , handworking department , and the drill department. I credit Reed's testimony that he did not speak with Feiring when he applied for work as a scraper in November 1951 and that he was not told at any time that any of his work had been unsatisfactory . Under the law, the Respondent was required to reinstate the strikers in any classification for which they were qualified , if their services were not required in their primary classification . Y1 Accordingly , I find that by refusing to offer employment to Raymond P. Reed the Respondent has violated Section 8 (a) (3) and (1) of the Act. James Cummisky Cummisky did not testify. The Respondent received theUnion's request including application for Cummisky 's reinstatement on August 18, 1952, and also received an individual application for reinstatement from Cummisky on August 28, 1952 . The Respondent's brief states that the record is silent as to the reasons why he was not reinstated , and that when the Respondent in preparation for the hearing was unable to substantiate its position , reinstatement was offered forthwith Accordingly , I find that by its failure to reinstate Cummisky , the Respondent violated Section 8 (a) (1) and (3)ofthe Act As an unfair labor practice striker , he was entitled to reinstatement upon the Union's unconditional application in his behalf. 21 Lewis & Holmes Motor Freight Corporation , 63 NLRB 996, 998-999, where the Board ordered the employer to reinstate the discriminatees to other jobs for which they were qualified, and to return them to their jobs when they again opened up. There the company claimed it could not reinstate the 8 (a) (3)'s because their jobs had been eliminated but the Board held that defense was insufficient inasmuch as there were jobs in the company for which the employees discharged were qualified. EFCO MANUFACTURING, INC. 263 John Clancy The Respondent defends its failure to reinstate Clancy to his job on the grounds that he was hired to paint Leach machines and then was later used for electrical maintenance work; that the Leach grinding department has been discontinued and the electrical work which he did was temporary work and consequently since the Leach grinding department has not been reopened and the temporary electrical work was finished, there is no job available for Clancy. The Union in its letter received by the Respondent on August 18 requested reinstatement for Clancy and the Respondent also received an individual letter from Clancy requesting reinstatement Clancy testified that he was hired by Tom Reynolds, assistant superintendent, in September 1951 to do the spray painting on Leachmachines, that he sprayed some machines with lacquer finish and some with lacquer base . He also was assigned to assembly work assembling shafts, bearings, and wheels used for "running-in" motors Clancy testified that he continued with the painting and assembly work in the Leach department until January 1952, at which time Fearing told him he was worth more money to him downstairs than he was in the assembly department; and that Fearing assigned him to maintenance work, moving all machinery from inside the old plant to Supervisor Paul Baker's new department outside, where he with the aid of Baker set up all the machines. He also did some electrical wiring and installed an electrical box. He testified further that he helped out in the shipping department, shipping the4reight out and taking it in, brought stock from the floor to the threading machines and when the stock was finished took it to the shipping room where he set it up, put heads on it, tagged it, and shipped it out Clancy testified that he never againworked in the leach department after he was trans- ferred downstairs in January 1952. He testified further that after he had writtenhis individual letter for reinstatement and after receiving the Respondent 's form letter reply , referred to supra, dated September 5, he spoke to Fearing at the plant who told Clancy that he had not put anybody on his job yet; remarked to Clancy that he was foolish to have gone out on strike in the first place, and that just as soon as things straightened out and everybody was back to work, Fearing would take him back to work. About 3 weeks later, Clancy telephoned to the plant and when told that Feiring was out, spoke toSylvester Pezzulo, the Respondent's planning manager, told him what Feiring had said previously, whereupon Pezzulo said he would speak to Fearing About 2 days later, Clancy received a letter dated November 14, referred to supra that the Leach department had been discontinued and that he was on a preferential list, Paul Baker , Respondent' s supervisor in the methods and inspection department and in charge of general maintenance, testified that Clancy never worked in his department; that when Clancy did the electrical work and other matters, he was working for Feiring. When asked if Clancy was ever assigned to the threading department, he replied, "Not that I know of." Upon consideration of all the evidence and upon the entire record, I find that Clancy had been transferred from the Leach department in January 1952 and never worked again in that department, so the discontinuance of the Leach department in itself would not be a valid reason for not reinstating Clancy. I further find that Feiring told Clancy, when he called at the plant following receipt of the Respondent' s letter of September 5, that Clancy had been foolish to go out on strike; and that as soon as things were straightened out and every body was back to work, Felting would reinstate him. In failing to reinstate Clancy, an unfair labor practice striker, following unconditional application, the Respondent violated Section 8 (a) (1) and (3) of the Act. Eugene Jacques Jacques did not testify. He was an operator, third grade, and for most of his employment prior to the strike operated a thread-rolling machine under the direct supervision of Ernest Wilson who was the supervisor in the grinding and precision finishing department. Fearing testified that he was not reinstated because his job no longer existed in the shop and there is no substantially equivalent employment, that he was skilled only in the operation of the thread-rolling machine making precision fastenings; and that work is now done by the super- visor and 1 other employee since there is not enough work for 3 men. Feiring further testified that no one since the strike has run the thread-rolling machine except Supervisor Wilson Edward C. Coleman, office manager and assistant treasurer of the Respondent, testified that Edward La Colle, who was hired 3 days after the strike started, is the employee who has been and is doing that work with Supervisor Wilson. On the credited testimony of Coleman, I find that Jacques has not been reinstated and that a new employee, La Colle, has been doing the work formerly done by Jacques. I further find 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, if necessary, La Colle should have been dismissed following Jacques' unconditional re- quest for reinstatement made in his behalf by the Union and also individually by Jacques, and that by continuing a new employee at work, who was hired during the strike, in preference to reinstating Jacques, who was an unfair labor practice striker, the Respondent violated Section 8 (a) (1) and (3) of the Act. Patrick Fogarty Fogarty worked in the tool grinding department prior to the strike and has not been re- instated. He was included in the Union's letter requesting reinstatement for the strikers which was received by the Respondent on August 18. He did not individually apply for re- instatement.22 On July 22 Fogarty went to work for the King Fastener Company. Feiring testified that prior to the end of the strike and before the plant closed for vacation, Fogarty told him that he did not plan on coming back to work for the Respondent; that Feiring pleaded with him to come back because the Company had trained him in his particular job of tool- maker, that Fogarty said he had another job, had had his "full of trouble" in the shop, and would rather work elsewhere. Paul Baker, supervisor in the methods and inspection department, corroborated Feiring by testifying that about 1 month before the strike ended, Fogarty came to the plant, asked for and was given his toolbox, said he had a job and did not think he would be back; and further testified that Fogarty talked with Feiring on that occasion in the plant (although Baker did not hear their conversation). Baker further testi- fied that 3 weeks after the strike was over he met Fogarty on the street and told him that anytime he was ready to come back his job was available, and asked Fogarty what he in- tended to do, that Fogarty said he had a better job and was going to stay there. Baker re- ported his conversation to Feiring. Baker further testified that a new employee, McDonald, had been hired shortly before the strike ended with the understanding that it was a temporary job until Fogarty returned: that thereafter when Fogarty did not return McDonald was continued at work. Fogarty testified but I consider his testimony so unreliable, replete as it is with self- contradiction, that I reject it as incredible. 23 His demeanor on the witness stand impressed me as an untruthful witness. I find that the Respondent offered reinstatement to Fogarty when Baker met him 3 weeks after the strike had ended, and that Fogarty refused the offer, stating that he had a better job and intended to stay there. As an unfair labor practice striker, Fogarty was entitled upon the Union ' s application to be reinstated to his former or substantially equivalent position. I find that an offer of re- instatement to his former job was made to him by the Respondent and rejected by Fogarty when Baker met him on the street 3 weeks after the end of the strike, and that in failing to offer Fogarty reinstatement to his job from August 22 to 3 weeks after the ending of the strike, the Respondent violated Section 8 (a) (1) and (3) of the Act 22 The fact that he did not make individual application for reinstatement is immaterial as it was in no way necessary in view of the fact that the Union, in his behalf, had included him in its letter requesting reinstatement, which was sufficient as a complete back-to-work appli- cation. 23 For example (without detailing all his testimony), on direct examination Fogarty testified that he never told Feiring he had a job elsewhere and denied saying to Feiring that he would not come back because of all the trouble that had happened in the' shop; on cross-examination, he admitted that he might have said there was too much trouble involved and he was going to get a job elsewhere. He testified that Ambrose B. Reisert who operates the King Fastener Company interviewed him for employment and asked if he could take permanent employment and that Fogarty replied in the affirmative and that he did intend to take permanent employment when he went to work there; on re-cross-examination he admitted that Reisert told him if he wanted a job he would have to take it permanently and he told [teisert he would take the job permanently. He then testified that he intended to take the job permanently and told Reisert so; then he added that he did not mean to take it permanently; later, he testified that he "believes" Reisert discussed whether he could take permanent employment, and would say he is certain; then he added that he does not believe he did but if Johnson (counsel for Respondent) insists "let's say no" that he did not discuss it and there was no question of his taking permanent employment. EFCO MANUFACTURING. INC. 265 Joseph E. Walsh Walsh did not testify. Walsh was out on strike and was included in the Union's blanket re- quest for reinstatement which the Respondent received on August 18, 1952. A day or two after August 18, Walsh visited theplant togethis tools and told Feiring he was not returning to work because he thought he would be unfairly treated because he had been an officer in the Union. Feiring testified that he pleaded with him to return, assuring him that he would not be dis- criminated against or unfairly treated as Fearing recognized that he had been within his rights in striking. Walsh then replied that he wanted to talk the matter over with his wife and tele- phoned the following day to say that he would return to his job He requested and obtained per- mission from Feiring to give the employer for whom he was then working 2 weeks' notice. Walsh returned to work on September 2, 1952 On the basis of the foregoing, I find that the allegation in the complaint that the Respondent discriminatorily refused reinstatement to Walsh until September 2, 1952, has not been proved. I find that he returned to work on September 2, 1952, pursuant to his own request for an extension of time, that his rein- statement on September 2 was entirely disassociated from any discrimination on the part of the Respondent, and, accordingly, I shall recommend that the complaint with respect to Walsh be dismissed. Armand Caron Caron did not testify at the hearing. Prior to the strike he was employed as a scraper in the Leach grinding department and was not qualified to perform any other job in the shop except his trade of scraper which involved a skilled operation Within 3 weeks after the strike began, Caron went to the plant and told Fearing that he was leaving permanently to take a job elsewhere at higher pay and requested Fearing then not to tell them he was out on strike, to which Fearing agreed. During the course of the strike, the Respondent for economic reasons discontinued the Leach grinding department. Caron's name was included in the blanket request for reinstatement for all strikers by the Union in its letter received by the Respondent on August 18, 1952, and Caron sent an individual letter for reinstatement which the Respondent received on August 22. He was not reinstated because of the discontinuance of the Leach grinding department and he is not qualified to do any other work. On November 14, 1952, the Respondent wrote to him that it had placed his name on a preferential hiring list and that he will be given the opportunity of being reemployed before the Respondent will seek any additional employees in the event that the Leach grinding department is reestablished. On the basis of the entire record, I conclude and find that he was not denied reinstatement for the discrim- inatory reasons alleged in the complaint and, accordingly , I shall recommend that the com- plaint with respect to Armand Caron be dismissed. Anthony Del Monaco Del Monico did not testify Feiring testified that prior to the time when the vacation period for the plant began, Del Monaco notified him that he was no longer staying out on strike and would be in when the vacation period was over On Monday, August 18, when the vacation ended and the day on which Del Monico was to return, Del Monaco telephoned to Fearing that his legs were bothering him and it would be a few days before he would be able to return to work, but he was not to be considered any longer on strike. Del Monico returned to work on August 25 Upon the foregoing facts, I find that the allegations of the complaint that Del Monico was discriminatorily refused reinstatement have not been sustained I shall, accordingly, recommend that the complaint with respect to Del Monico be dismissed. Donald Fulford The Respondent offers two defenses for not reinstating Fulford to his job, following un- conditional application for his job at the end of the unfair labor practice strike. The first defense is that Fulford was driving his automobile on the highway and while overtaking and passing an automobile driven by Fei ring swerved his car to the right, cutting in front of Feiring and causing Fearing to brake sharply and swerve to the right to avoid contact with Fulford's automobile The circumstances of the episode are fully set forth in the record. The episode 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred while Fulford and Feiring were following a truck which had taken material from the Respondent's plant for delivery to the Respondent's customers. When all the evidence is evaluated, and assuming arguendo that Fulford when overtaking and passing Feiring's auto- mobile did cut in front of him thereby causing Feiring to brake and swerve to the right to avoid a collision, there is no evidence in the record that it was an intentional act on the part of Fulford; and it may not be inferred to be intentional from the fact that the "near-miss" may have occurred Such occurrences occur daily where one driver does not allow sufficient room when overtaking and passing an automobile before driving in front of the automobile which he has passed I therefore find such defense to reinstatement to be insufficient. The second defense of the Respondent is that while on the picket line one morning during the early part of the strike,. Donald Fulford called to Mario Testoni (a nonstriker) who was on his way to enter the plant and ascribed to Testona the capability of committing an act so foul as to be unmentionable.24 Fearing who was present at the time prevented personal encounter between Testoni and Fulford by taking hold of Testona, turning him around, and telling him to go into the plant. Fulforddenied that he had used the language attributed to him I have carefully weighed all theevidence, including Fulford's denial From Fulford's demeanor as a witness, I do not credit his denial. I find that he did make the remark attributed to him The General Counsel contends, however, that, even if the remark were made, the Respondent has condoned it by failing to mention the matter until it was advanced in the Respondent's letter of November 14 to Fulford. There are many cases where the Board and the courts have held that the use of vilifying and disparaging language by a striker on the picket line does not affect his right to reinstatement. E. g , N. L. R. B. v. Deena Artware, Inc., 198 F. 2d 645, 652 (C. A. 6), cert. denied 345 U. S 906, N. L. R. B. v. Reed & Prince Mfg , Co., 118 F 2d 874, 887-888 (C. A. 1), cert. denied 313 U. S. 595, Republic Steel Corp. v. N. L. R B.. 107 F. 2d 472, 480, cert. denied on this point 309 U. S. 684; Kansas Milling Co. v. N. L R B., 185 F. 2d 413, 420, enforcing as modified 86 NLRB 925, 928. While the Board does not condone the use of abusive and in- temperate language, it has recognized that in a strike where vital economic issues are at stake, strikitlg employees resent those who cross the picket line and will express their senti- ments in language not altogether suited to the pleasantries of the drawing room. It is, however, the function of the Board to weigh the conflicts which arise from time to time and to determine in each case whether the interest of the employees or the interest of the employers should be held paramount. (Republic Aviation Corporation, supra ) In the recent case of N. L. R. B. v Longview Furniture Co., 206 F. 2d 274, (C. A. 4), the court said: We think it equally clear that the Act does not protect them [strikers] in using insulting and profane language calculated and intended to publicly humiliate and degrade employees who are attempting to work in an effort to prevent them from working. They are no more privileged to infringe upon the rights of fellow employees than upon the rights of the employer. As in the Longview case, I believe that the employment of Donald Fulford would have a dis- ruptive effect on the Respondent's business as the result of the feelings and antagonisms there- by engendered, and to reinstate Fulford could not reasonably be said to be proper action to effectuate the policies of the Act. The court further held in the Longview case- .... From the standpoint ofdischargeor reinstatement there is no difference in principle between engaging in acts of violence and using profane and insulting language towards fellow employees in an effort to drive them from work. . . In my opinion there is a limit to indecent language and that limit has been reached in Fulford's remark to Testona. On the basis of all the evidence and on the entire record, I find merit in the Respondent's defense that Fulford's remark to Testoni was an offense so flagrant that he should be denied reinstatement Nor do I find that the Respondent has condoned such behavior. Accordingly, I find that the Respondent did not discriminatorily refuse to reinstate Fulford and the complaint therefore with respect to Donald Fulford should be dismissed 24The exact language appears in the record at, page 578, line 3. EFCO MANUFACTURING, INC 267 IV. The Effect of the Unfair Labor Practices Upon Commerce The activities of the Respondent set forth in section III, above, occurring in connection with the operatiojis 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 thereof. V. The Remedy Having found that the Respondent has engaged in certain unfair labor practices. I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I shall recommend that the Respondent, upon request, bargain collectively with the Union and, if an understanding is reached, embody such understanding in a signed agreement Having found that the Respondent discriminated in regard to the hire and tenure of employ- ment of certain employees. I shall recommend that the Respondent offer reinstatement to their former or substantially equivalent positions to Charles Arnold, Paul Aslin (Eslin), John Clancy, James Cummisky, Peter Dubuque, Eugene Jacques, Joseph Molis, Raymond P. Reed, and Philip Wilcox, without prejudice to their seniority or other rights and privileges, dis- missing, if necessary, persons hired on or after April 14, 1952, the date on which the unfair labor practice strike began. I shall also recommend that the Respondent make them whole for any loss of pay they may have suffered by reason of the Respondent's refusal to reinstate them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from August 22, 1952, to the date of the Respondent's offer of reinstatement, less his net earnings, if any, during said period. Loss of pay shall be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As the record shows that at least two of the strikers not reinstated have entered the Armed Forces of the United States25 since August 22, 1952, and, accordingly, may not be available for immediate reinstatement, I shall recommend that, in order to restore them to their positions and thus effectuate the policy of the Act, the Respondent, upon application by any one of the nonreinstated employees at present serving in the Armed Forces, made within 90 days of his discharge from the Armed Forces, offer such employee reinstatement without prejudice to his seniority or other rights and privileges. I shall also recommend that the Respondent be ordered to notify any of the employees ordered reinstated, who may be serving in the Armed Forces, that they will be reinstated upon application within 90 days of their discharge from the Armed Forces; and that the Respondent make any such employee whole for any loss of earnings he may have suffered because of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages during those periods (1) between August 22,1952, and the date when he entered the Armed Forces, and (2) between a date 5 days after his timely application for reinstatement and the date of offer of reinstatement by the Respondent, less his net earnings during these periods. I shall also recommend that the Respondent be ordered to pay him immediately that portion of his net back pay accumulated between August 22, 1952, and thedate when he entered into the Armed Forces, without waiting a final determination of the full amount of his award Stationers Corporation, 96 NLRB 106. Having found that the Respondent reinstated Ernest Provencher on August 31, 1952, Sidney Ivens on September 2, 1952; Francis Earl Northrup on September 4, 1952, John A. McKenna on September 5, 1952, Joseph A. Trudell on September 22, 1952, and Albert Leduc on October 14, 1952, no offer of reinstatement to them need be made by the Respondent I shall recommend that the Respondent make each of them whole for any loss of pay suffered from August 22, 1952, to the respective date of reinstatement by payment to him of whatever sum he would have earned as wages, less his net earnings, if any, during that period. Having found that the Respondent discriminated in regard to the hire and tenure of employ- ment of John W. Bunnell, I shall recommend that the Respondent make him whole for any loss of pay he may have suffered from August 22, 1952, to the time when he notified the Respondent that lie was going to work elsewhere. Having found that the Respondent discriminated in regard to the hire and tenure of employ- ment of Patrick Fogarty, I shall recommend that the Respondent make him whole for any loss 25 Eugene Jaques and Philip Wilcox. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of pay he may have suffered from August 22, 1952, to a time 3 weeks after the strike ended when the Respondent offered him reinstatement and he rejected the offer. Having found that the Respondent did not discriminate with regard to the hire and tenure of employment of Armand Caron, Anthony Del Monico, Joseph E. Walsh, and Donald Fulford, I shall recommend that the complaint with respect to them be dismissed. It is apparent from the entire record that there is danger of the commission in the future by the Respondent of other unfair labor practices proscribed by the Act. In order to make effec- tive the interdependent guarantees of Section 7 of the Act and to effectuate the policies of the Act, I shall recommend that the Respondent cease and desist from infringing in any manner upon the right of employees guaranteed in Section 7. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of Respondent, including the shipping clerk, employed at its East Greenwich plant, exclusive of the assistant to the superintendent, the leadmen, office clerical employees, professional employees, guards, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since January 5, 1952, the Union has been and now is the exclusive repre- sentative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since February 28, 1952, to bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of the employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Charles Arnold, Paul Aslin (Eslin), John Clancy, James Cummisky, Peter Dubuque, Joseph Molis, Raymond P. Reed, John W. Bunnell, Patrick Fogarty, Sidney Ivens, Albert Leduc, John A. McKenna, Francis Earl Northrup, Ernest Provencher, Joseph A. Trudell, Philip Wilcox, and Eugene Jacques, thereby discouraging membership in United Steelworkers of America, CIO, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not violated Section 8(a) (3) and (1) of the Act as alleged in the com- plaint with respect to Armand Caron, Anthony Del Monico, Joseph E. Walsh, and Donald Fulford. [Recommendations omitted from publication.] CLEARWATER FINISHING COMPANY and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case No. 11-CA-572 (For- merly 10-CA-1532). April 15, 1954 DECISION AND ORDER On October 27, 1953, Trial Examiner David London issued his Intermediate Report in the above-entitled proceeding, 108 NLRB No. 55.