Universal Food Service, Inc,.

UNIVERSAL FOOD SERVICE, INC. and BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 201, AFL and HOTEL AND RESTAURANT EMPLOYEES AND BAR- TENDERS INTERNATIONAL UNION, LOCAL 208, Party to the Contract . Case No . 19-CA-642. April 13, 1953 DECISION AND ORDER On January 16, 1953, Trial Examiner Irving Rogosin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board, has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby confirmed. The Board has considered the Intermediate Report, the Respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings,: conclusions, and recommenda- tions of the Trial Examiner with the following addition: The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (5) by refusing to bargain with Local 201 since on or about April 4, 1952, after Local 201 had made a sufficient and effective demand upon the Respondent to bargain. The Respondent excepts to this finding contending that because of the competing claim of Local 208 and the fact that Local 201 had filed a representation petition on March 31, 1952, a valid question concerning representation existed at the time of the alleged refusal to bargain, and therefore the Respondent was under no duty to bargain with Local 201 until that question was resolved by the Board. There would be merit in the Responden,'s position were this the ordinary case of an employer refusing to recognize and bargain with either of two rival unions until the questior concerning representation raised by their respective claims had been resolved by the Board.3 However, on the peculiar facts of this case, as in the recent Spitzer Motor Sales, Inc., ,Pursuant to the provisions of Section3(b)of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. =The Trial Examiner found that the provision of the union-security clause of the contract between the Respondent and Local 208, which requires all newly hired employees to apply for membership in Local 208 within 15 days from the date of hiring, does not contravene the Act. He also found that although certain other provisions of the union-security clause were illegal, the execution of the contract was not violative of Section 8 (a) (3) because the provisions were never enforced. As no exceptions to these findings were filed, we adopt them pro forma. sCf. Sunbeam Corporation, 99 NLRB 546. 104 NLRB No. 6. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case,4 we are convinced and find that the Respondent did not have and could not have had a bona fide belief that the bare claim of Local 208 raised a substantial question concerning repre- sentation or that Local 201 lacked a clear majority at the time of the refusal to bargains In these circumstances we find that the Respondent was under a duty to recognize and bargain with Local 201. Nor does the fact that Local 201 filed a repre- sentation petition excuse the Respondent from its obligation to recognize and bargain with it. Such an argument comes with ill grace from an employer which had engaged in unfair labor practices that made the holding of a fair election impossible.6 For these reasons we reject the Respondent's contention as being without merit. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Universal Food Service, Inc., North Richland, Washington, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Recognizing Hotel and Restaurant Employees and Bar- tenders International Union, Local 208, affiliated with the American Federation of Labor, as the exclusive representative of any of its employees in the unit herein found to be appro- priate, for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, or for purposes of collective bargaining, unless and until said labor organization shall have been certified by the Board as the exclusive representative of said employees. (b) Performing or giving effect to its contract, dated April 1, 1952, with said Hotel and Restaurant Employees and Bartenders International Union, Local 208, affiliated with the American Federation of Labor, or to any extension, renewal, modification thereof, or to any supplement thereto, unless and until said labor organization shall have been certified by the Board as exclusive representative of said employees. (c) Entering into, renewing, or enforcing any provisions in any collective-bargaining agreement with Hotel and Restaurant Employees and Bartenders International Union, Local 208, or any other labor organization, which requires its employees or applicants for employment to join, or maintain membership in, such labor organization as a condition of employment, unless such agreement shall have been authorized as provided in the Act. 4102 NLRB 437. SThe only claim of representation made by Local 208 was made at a time when the Re- spondent had no employees of its own and was based on a purported jurisdictional award made by AFL" President William Green in 1944. Clearly, such insubstantial claim did not raise a valid question concerning representation. 6 mid. UNIVERSAL FOOD SERVICE, INC. 3 (d) Discouraging membership in Building Service Employees International Union, Local 201, AFL, or any other labor organization of its employees, by failing or refusing to reinstate any of its employees, or in any other manner discriminating against any of its employees in regard to their hire or tenure of employment or any term or condition of employment. (e) Refusing to bargain collectively with Building Service Employees International Union, Local 201, AFL, as the exclusive representative of the employees in the unit herein found to be appropriate, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment. (f) In any like or related manner, interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Building Service Employees International Union, Local 201, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, 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) Withdraw and withhold all recognition from Hotel and Restaurant Employees and Bartenders International Union, Local 208, affiliated with the American Federation of Labor, as the exclusive representative of Respondent's employees in the unit herein found to be appropriate, for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board as such exclusive representative. (b) Make whole each of the employees who went on strike on April 10, 1952, and who made unconditional application for reinstatement on April 14, 1952, for any loss of earnings each may have sustained from April 16, 1952, the date on which Respondent received notice of such application, until April 30, 1952, or whatever date thereafter said employees were actually reinstated, less the net earnings of each of said employees during said period, as set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon request, bargain collectively with Building Service Employees International Union, Local 201, AFL, as the exclu- sive representative of the employees in the unit herein found to be appropriate, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, and if agreement is reached, embody the same in a written collective-bargaining agreement with said Union. (d) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. t(e) Post at its offices at North Richland, Washington, copies of the notice attached to the Intermediate Report herein and marked "Appendix A."7 Copies of said notice, to be furnished by, the Regional Director for the Nineteenth Region, shall, after being duly signed by Respondent's authorized repre- sentative, be posted by Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, insofar as it alleges violations of the Act, other than those found herein to have been committed by Respondent, be, and it hereby is, dismissed. 7 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report and Recommended Order STATEMENT OF THE CASE This complaint, based upon a second amended charge, filed June 20, 1952, i by Building Service Employees International Union, Local 201, AFL, herein called Local 201, or the Union, was issued August 8, 1952,2 by the General Counsel of the National Labor Relations Board, herein called the General Counsel, and the Board, respectively, against Universal Food Serv- ice, Inc., of Seattle, Washington, herein called Respondent. Copies of the original charge and the first and second amended charges were duly served on Respondent; copies of the complaint, accompanied by copies of the amended charges, and notice of hearing, were served on all parties, including Hotel and Restaurant Employees and Bartenders International Union, Local 208, party to the contract, herein called Local 208, or the Culinary Workers. The complaint, as amended at the hearing, alleges in substance that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1). (2). (3), and (5), and Section 2 (6) and(7)of the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, herein called the Act, by the following acts and conduct: (1) Since on or about March 10, 1952 , recognizing Local 208 as the exclusive bargaining representative of certain of its employees ; executing a collective-bargaining agreement with said union at a time when Respondent had no employees, and when said union could not, there- fore, have represented a majority of the employees in an appropriate unit; and implementing such contract, and the discriminatory union-security provisions, requiring preferential hiring of union members, contained in said contract. (2) By the foregoing conduct, and by warning and advising its employees that Respondent "was affiliated with," and had executed a contract with said union, notwithstanding that it did not represent a majority of its employees in an appropriate unit. i The original charge was filed April 16. 1952, and served on Respondent April 18, 1952. 2The original complaint, issued July 9, 1952, and notice of hearing thereon, were withdrawn by the Regional Director on August 7, 1952, and reissued on August 8, 1952. No objection was raised to this procedure and, by stipulation of the parties, Respondent's answer to the original complaint wi4s regarded as responsive to the complaint as reissued. UNIVERSAL FOOD SERVICE, INC 5 (3) Supporting and assisting said union in its attempt to organize said employees. (4) Since April 1, 1952, failing and refusing, after demand, to bargain with Local 201, the charging union herein, as the exclusive representative of said employees, notwithstanding that said Union was, on said date, and has, at all times material since, been the exclusive repre- sentative of said employees. Respondent's answer admits generally the allegations of the complaint regarding the nature of its operations, but denies that those operations affect commerce, and, therefore, denies the jurisdiction of the Board; contests the appropriateness of the unit, and describes the unit which it alleges to be appropriate, but requests the Board to determine the appropriate unit Further answering, Respondent admits that it entered into a collective-bargaining agreement with Local 208, prior to April 1, 1952, but alleges that it did so in good faith, in the belief that said union represented and "had jurisdiction" over a majority of the employees covered by said agreement, and before any knowledge or notice of any claim by Local 201 that it "had jurisdiction" over, or represented for collective bargaining, any employees covered by said agreement. In all other respects, Respondent generally denies the remaining allegations of the complaint, including those charging the commission of unfair labor practices. Pursuant to notice, a hearing was held at North Richland, Washington, on August 19 and 20, 1952, before the undersigned duly designated Trial Examiner. The General Counsel and Respondent were represented by counsel; each of the unions, by a representative. All parties participated in the hearing, were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence relevant and material to the issues. Although all parties were also afforded the opportunity of arguing orally on the record at the close of the hearing, and filing briefs and proposed findings of fact and conclusions of law, all declined. Upon the entire record in the case, and upon his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Universal Food Service, Inc., a corporation organized under the laws of the State of Wash- ington, with its principal office at Seattle, is engaged in the business of furnishing food and services in connection with the housing of construction workers on various projects in the United States, Alaska, and Canada. The general scope of its operations encompass the estab- lishment and operation of camps, including the feeding and housing of workers, the mainte- nance of power plants and equipment essential to the operation of such camps, and the maintenance and housekeeping services for the houses, barracks, trailer camps, and other living accommodations of the workers. Since April 1, 1952, Respondent has performed, under contract with the Atomic Energy Commission of the United States Government, dated March 24, 1952, the services of operating, managing, and maintaining residential and commercial facilities at the North Richland Con- struction Camp, in Washington. Under that contract, Respondent is required to manage, rent, collect rentals, clean and maintain the interior of, and furnish heat, housekeeping, and jani- torial services for said units. In connection with these services, Respondent employs various classifications of employees, and has collective-bargaining relations with representatives of the building crafts. The services performed under this contract do not entail the furnishing of food or any services in connection therewith. This proceeding is concerned only with em- ployees performing the duties of janitors and janitresses, designated by Respondent as "bull cooks," who generally make up beds, clean halls, bathrooms, bathhouses, showers, and perform similar tasks. Inasmuch as the services rendered by Respondent are performed, pursuant to contract with the Atomic Energy Commission, on a United States reservation devoted to the production of atomic energy, it is evident that the activities of Respondent constitute such an integral part of. and are so closely identified with, the national defense as to warrant the full exercise of the Board's power to assert the jurisdiction conferred by the Act The undersigned, therefore, finds that, at all times material herein, Respondent has been engaged in, and that its opera- tions affect, commerce within the meaning of the Act. 8 II. THE ORGANIZATIONS INVOLVED Building Service Employees International Union, Local 201, AFL, and Hotel and Restaurant Employees and Bartenders International Union, Local 208, affiliated with the American Fed- SSee Harvey Stoller, d/b/a Richland Laundry & Dry Cleaners, 93 NLRB 680. 283230 0 - 54 - 2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eration of Labor, are labor organizations admitting to membership employees of Re- spondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; support and assistance to the Culinary Workers; discrimination in regard to hire and tenure of employment 1. Introduction Prior to March 24, 1952. General Electric Company, herein called GE, the prime contractor for the United States Atomic Energy Commission, herein called the AEC, at Hanford Works, North Richland, Washington, had been operating and maintaining the housing and commercial facilities, and furnishing the housekeeping and janitorial services, at the installation known as the North Richland Construction Camp. In October 1951. GE had in its employ about 46 men and women who performed the functions of janitors and janitresses at this camp. 24 of whom had designated Local 201, the charging union herein, as their bargaining agent.4 GE, however, had not recognized any labor organization as exclusive bargaining representative of these janitorial employees, and had entered into no collective-bargaining agreement with any labor organization on their behalf. In October 1951, the Union filed a petition for investigation and certification of bargaining representatives for the janitorial employees. The petition was withdrawn when GE notified the Union that it contemplated discontinuing these services, and turning back the operation to the AEC, which would determine the manner in which these services were to be provided there- after. Late in January. or early February, 1952, the AEC invited bids from various contrac- tors, including Respondent, engaged in rendering services of the type here involved. 2. Subsequent events About February 10, 1952, President George S. Hiddleston, Vice-President Clyde L. Graves, Comptroller LeRoy A. Cook, and Project Superintendent Louis H deSilvia, officials of Re- spondent, arrived at Richland. During the next 10 days, these officials conferred with repre- sentatives of the AEC and of the building trades unions to obtain pertinent information as a basis for its bid. Hiddleston met with Business Representative Violet Alexander of Local 208, commonly referred to as the Culinary Workers, the party to the contract herein, and obtained from her wage rates and other relevant data. 5 On February 23, after having prepared Re- spondent's bid, Hiddleston and Graves returned to Seattle, leaving Cook and deSilvia to submit the formal bid. When this was accomplished, Cook and deSilvia also returned to Seattle The bids were opened publicly on February 26, when it became apparent that Respondent was the lowest bidder. Respondent was not officially notified, however, until March 10, 195?, that it had been the successful bidder. That day or the next, the press and radio carried announcements of the award. On March 11, Hiddleston, Graves, deSilvia, and Cook arrived in Richland to complete nego- tiations with representatives of the AEC, and to confer with various building trades unions involved in Respondent's undertaking. Learning that Respondent had been awarded the contract by the AEC. Miller communicated with Hiddleston at the Desert Inn, introduced himself as 4The findings regarding the number of GE janitorial employees at this time, as well as the number who had designated the Union, are based on the undisputed testimony of Union Business Representative Vernon R. Miller. 5Hiddleston had met Alexander in 1947, and again, in 1949, while he was investigating the possibility of taking over the operation involved herein. The venture failed to materialize at that time. UNIVERSAL FOOD SERVICE, INC. 7 representative of the Union, and explained his interest in the venture. 6 Hiddieston told him that there was "another union in the picture." which claimed jurisdiction over the janitorial employees under a letter from the American Federation of Labor. Miller stated that the question was not one of jurisdiction but of representation, that the Union represented the employees involved and expected to do so in the future. Hiddleston replied that the dispute would have to be resolved between the two unions, and that Respondent would remain com- pletely neutral until the issue was settled. Neither Hiddleston nor any other company repre- sentative requested the Union for proof of its claim of majority representation, and the union representatives volunteered no such proof The evening of the same day, March 11, Miller. accompanied by Building Service Employees International Representative Arthur Hare and David E. Williams, attorney for the Union, encountered Hiddleston, deSilvia, and their wives, and Cook or Graves in the cocktail lounge of the Desert Inn. Miller introduced his colleagues to the others, and pleasantries were exchanged. Before the Hiddleston party left. Hare reiterated to Hiddleston that the Union represented Respondent's janitorial employees and expected to do business with Respondent. Hiddleston repeated what he had told Miller earlier that day. There is a sharp conflict in the testimony as to the date these meetings occurred. According to Hiddleston, he met Business Representative Miller for the first time late in the afternoon of March 17, after he had executed the collective-bargaining agreement with the Culinary -Workers, presently mentioned, and the meetings described above occurred on March 17, rather than March 11, as Miller maintained. Testifying that Miller had telephoned him at his room at the Desert Inn and, after introducing himself, asked to talk to him, Hiddleston stated that he invited Miller to join him in the lobby. When Miller met him, he told Hiddleston that he had just learned that Respondent had been awarded the contract with the AEC and informed him that his union represented the janitorial employees on the job. Hiddleston told him that the Culinary Workers also claimed jurisdiction over those employees, and suggested that since both unions were affiliated with the A. F. of L., and since Respondent was indifferent to which union it dealt with, the unions resolve the issue between themselves. According to Hiddleston, Miller said he would investigate but that he was convinced that the Union was entitled to recognition. Except for the disagreement as to the date of the meeting between Hiddleston and Miller, and the chance encounter later that evening, there is no substantial dispute as to what took place Miller 's testimony as to the date was corroborated by Attorney Williams who, though he testified that he had no certain recollection of the date, explained that he had con- firmed the date by reference to International Representative Hare's visit to Richland on that date, his only visit there on that matter On the other hand, LJiddleston's testimony as to the date in question was uncorroborated. Notwithstanding that at least one other company repre- sentative, Superintendent deSilvia , who had been present at the latter meeting , testified at the hearing, he was not questioned about the date of these meetings. Moreover, it is undisputed that Hiddleston and his associates returned to Richland on March 11, following official announcement of the award the day before, to consummate the contract with the AEC. In view of the Union's persistence in attempting to gain recognition, and its evident awareness that it could scarcely expect to be recognized until Respondent was awarded the contract , it is reasonable to infer that the Union would have acted as soon as it learned of the award through the press release. It is, therefore, more probable that Miller would have sought out Hiddleston as soon as he learned of the latter's arrival in Richland, rather than wait until March 17, nearly a week later, before doing so. 6 Miller testified that on about March 4th or 5th, after learning that Respondent was assuming the operation, he telephoned the Union's Seattle office and suggested that the Union communi- cate with Respondent. Informed that Graves was in Richland, Miller telephoned him at the Desert Inn and introduced himself as representative of the Union. According to Miller. Graves expressed pleasure at meeting with a representative of the Union and stated that he hoped to do business with the Union in the future, but that Respondent had merely submitted a bid on the contract and had not yet signed a contract. Graves did not testify but, according to Hiddleston, neither Graves nor any other company official had been in Richland on March 4th or 5th, all its representatives having left for Seattle before February 26, when the bids were opened, without returning until March 11. Since Miller testified that he first learned that Respondent was taking over the maintenance of the North Richland Construction Camp from accounts in the press, the earliest of which could not have appeared before March 10, it is obvious that Miller was mistaken in fixing the date of his conversation with Graves as March 4th or 5th. Although this discrepancy was not explained, it is probable that Miller's conversation with Graves took place on the occasion of Graves' prior stay in Richland, late in February, when Respondent's bid was being prepared, and that Miller had erroneously concluded that it had occurred after he read the notice of the award in the press. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, it would seem that if the meetings had actually occurred on March 17. and after the collective-bargaining agreement had been signed withtheCulinary Workers, as Hiddleston maintained, ordinary candor would have required that Hiddleston disclose this fact. His failure to do so suggests either that the contract with that union had not yet been signed or that Hiddleston was deliberately withholding this information in an attempt to lull the Union into a false sense of security by fostering an impression that Respondent intended to observe strict neutrality between competing labor organizations, while permitting the Culinary Workers to consolidate its position as collective- bargaining agent. The undersigned is unable to impute such a sinister purpose to Hiddleston at the time in question , and finds that he was mistaken in his testimony, and that the date of his meetings with Miller occurred on March 11, and not March 17. Hiddleston remained in Richland until March 13, leaving that evening, and returning in the early afternoon of March 16. On March 12, after learning that Respondent had been awarded the contract with AEC, Business Representative Violet Alexander of the Culinary Workers, Local 208 , met with Hiddleston to negotiate a collective - bargaining agreement covering the janitorial employees to be employed at the North Richland Construction Camp. Hiddleston asked her for proof that the Culinary Workers had jurisdiction over these employees, and Alexander submitted to him a photostaticcopyofa letter from the late AFL President William Green, dated January 15, 1944, purporting to award jurisdiction over the employees involved to the Culinary Workers. Hiddleston testified that he was unable to state affirmatively that he had asked Alexander whether the Culinary Workers represented a majority of the employees involved, but that he assumed that it did from the fact that she had told him that her organiza- tion had jurisdiction over those employees. Hiddleston disclaimed that he had any knowledge at the time that any other union was claiming to represent these employees , and testified that he had had no reason to believe such a claim existed, particularly since GE had never recog- nized any union as bargaining agent for its janitorial employees on the project . T On the basis of the evidence of the so-called jurisdictional award, which Alexander had furnished Hiddleston, Respondent recognized the Culinary Workers . Negotiations , begun on March 12, and continued on the morning of March 13, were completed on Hiddleston's return to Richland, on March 16. Alexander drafted the collective-bargaining agreement, which she submitted to Hiddleston for his signature, and during the forenoon of March 17, the contract was executed. Next day, according to Hiddleston, he attempted to reach Alexander at the union hall, but learned that she had left for Seattle. Though informed where she could be reached, after con- ferring with other company officials, he decided not to get in touch with her, and to "remain neutral," leaving the two unions to resolve their differences.$ The collective-bargaining agreement between Respondent and the Culinary Workers, executed on March 17, 1952, was dated April 1, 1952, for a term of 1 year, automatically renewable T Hiddleston 's testimony that he was unaware of any other claim of representation is, of course, based on his contention that the first intimation he had of the Union's claim of majority was in the first meeting with Business Representative Miller , which, according to Hiddleston, occurred on March 17, and after the contract with the Culinary Workers had been signed. For reasons already stated, the undersigned has found that this meeting occurred on March 11, and on this basis it is evident that Respondent was aware of the Union's claim prior to its recognition of Culinary Workers and the signing of a contract with that labor organization. I This, according to Hiddleston, was the day after he first learned of the Union's claim of majority, and after he had signed the contract with the Culinary Workers on behalf of Re- spondent. Although Hiddleston's testimony regarding his efforts to communicate with Alexander after signing the contract appears to lend support to Respondent 's contention that it learned of the Union's claim after it had signed the contract with the Culinary Workers, the under- signed regards this evidence insufficient to overcome the more positive and convincing proof that Respondent was aware of the Union's claim at the time it signed the contract with the other union. In any event, in view of the ultimate disposition of the issue of support and assistance to the Culinary Workers, the undersigned regards it immaterial whether Re- spondent recognized that union, and executed a contract with it, before or after it learned of the Union's claim of majority representation. For, the issue, here, is not whether the Union's assertion of claim of representation and request for recognition could forestall the operation of a contract, subsequently entered with another union , as a bar to an election. Neither the Board's Midwest Piping doctrine (63 NLRB 1060) nor the General Electric X-Ray rule (67 NLRB 997) are relevant here. The issue on this aspect of the case is merely whether Re- spondent accorded the Culinary Workers unwarranted recognition , and executed a bargaining agreement with that organization, at a time when it did not represent a majority of the employees in an appropriate unit, without regard to whether any other union was seeking recognition at the time. UNIVERSAL FOOD SERVICE, INC. 9 annually thereafter in the absence of at least 60 days' notice . Included in the contract was a wage scale which, while enumerating various cuhnaryandother job classifications , apparently represented by the Culinary Workers and not here involved , contains classifications and corresponding wage rates for head bull cook and bull cook, designations used by Respondent to describe the janitorial employees involved herein. With regard to union security, the contract contained the following provisions: Section 2: HIRING AND UNION MEMBERSHIP: All employees, steady or extra, covered by this Agreement, may be hired through the offices of this Union or through the person- nel office of Universal Foods (sic) Service, Inc. (b) In the event the Union is unable to supply satisfactory help to the Employer, then the Employer may hire outside of the Union, provided such hired persons make applica- tion to join the Union within fifteen (15) days from date of employment and complete same within a period of thirty ( 30)"days from date of employment . Such persons so employed shall also maintain their membership in the Union as a condition of employment during this Agreement and must obtain a work slip from the Union before going to work. (c) It is agreed that should any work sentence or section of this Agreement in any way conflict with any laws, State or National, then that work sentence or section shall be inoperative. Section 2: DISCRIMINATION: There shall be no discrimination against any employge because of membership in or activity in behalf of the Union. By letter, dated March 21, 1952, Business Representative Miller , on behalf of the Union, wrote Respondent, enclosing a proposed collective -bargaining agreement, and demanded bar- gaining rights on behalf of Respondent's janitorial employees , all of whom, the Union asserted, performed work within the "established jurisdiction " of the Union, and the "bulk" of whom it represented. Miller testified that Hiddleston telephoned him shortly afterward that he was considering the Union 's proposal, but, according to Hiddleston , himself, he made no reply to this communication, having decided, after failing to reach Business Representative Alexander of the Culinary Workers , and upon advice of counsel, not to reply to Miller 's demand, but to maintain a position of "neutrality." The undersigned credits Hiddleston 's testimony , and finds that he ignored the Union's demand. On March 24, 1952, the formalcontract was executed between the AEC and Respondent, under which Respondent, as contractor , agreed to "operate, manage and maintain the barracks buildings , trailer spaces , trailer bath houses , residential housing units and garbage collection and disposal for thirteen commercial facilities of the North Richland Construction Camp," for a period of 6 months , beginning at 12:01 a.m., April 1, 1952. A week later, on March 31 , the Union filed a petition for investigation and certification of representatives , in Case No. 19-RC-1049. The petition was subsequently withdrawn. Meanwhile, on March 24, the day the contract between Respondent and the AEC was signed, or the following day, the janitorial employees then employed by GE, numbering about 35, were assembled and notified by GE Supervisor Ed Sullivan that after April 1, 1952, they would no longer be employed by that company . Sullivan introduced Superintendent deSilvia to the em- ployees, who addressed them briefly and told them that he would be pleased to have them work for Respondent. According to employee Effie O . Ralston, deSilvia stated that his company had bargaining relations with the Culinary Workers , and that the employees would be classified as bull cooks.9 He then distributed employment applications to all the GE employees present, and asked them to return them, signed or unsigned , the following day. 9Eula D. Doerge, the only other employee who testified in this connection , stated that it was at the second meeting of the employees , on April 1, presently discussed , that deSilvia men- tioned the Culinary Workers . According to her, he stated on this occasion that he did not know with which union the employees were affiliated, but that Respondent was affiliated with the Culinary Workers , that Respondent had dealt with that union, which would represent the employees , and that Mrs. Alexander "would be around" to see them. According to deSilvia, he was asked at the March 24 meeting if Respondent did business with the Culinary Union. He told them that the company had a contract with that union in Alaska, but did not state that the company had a contract with the Culinary Workers here. With respect to the statements attributed to him at the April 1 meeting , deSilvia testified that he was asked if the employees were required to join a union. He told them they were not. He denied that he told the em- ployees that they would be represented by the Culinary Workers, that he mentioned Mrs. Alexander 's name, or that he said that she would be out to contact them. Since it Is a fact that Respondent had actually entered into a contract with Local 208 on March 17. as deSilvia knew at the time of the first meeting with the employees , which provided for a type of union 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 1. another meeting of the former GE employees was held with Project Superin- tendent deSilvia . A total of 35 employees had returned signed employment applications. In a space provided for the purpose on the application , 15 of these had signified that they were affiliated with the Building Service Employees Union at the time . Some 10 others , including Ralston and Doerge, also members of that Union , did not'divulge that information on their applications . All 35 were hired , and there was no showing that any of them were required to join Local 208, Culinary Workers. Between April 1 and April 10, deSilvia testified, he hired about 10 additional employees in the same category. According to Business Representative Miller , a comparable number of employees joined the Union during the same period. 3. Issues ; contentions ; conclusions It is incontestable from the foregoing that , on March 17, 1952. when Respondent entered into the collective-bargaining agreement with the Culinary Workers, that union did not represent and could not have represented a majority of Respondent 's employees in an appropriate unit, without regard to the definition or scope of the unit . For not only did Respondent have no employees in the classifications involved on that date, but also it had not even signed its contract with the AEC. Nor is Respondent aided by the fact that operation of both the collective- bargaining agreement and the contract with the AEC was postponed until April 1. Even if the Culinary Workers had numbered among its members persons employed by GE as janitors at the North Richland Construction Camp prior to April 1 , which the record does not establish, this could have afforded Respondent no basis for recognition on March 17. Nor does the fact that the AFL, with which bothLocals involved herein are affiliated, may have seen fit to award jurisdiction to the Culinary Workers rather than to the Union afford any justification to Re- spondent for recognizing the former union as exclusive representative of Respondent's employees in the unit involved. For, in determining whether a labor organization is entitled to the status of exclusive representative , the issue is whether that organization represented a majority of the employees in an appropriate unit at the time of recognition by the employer, and not what determination the parent of such labor organization may have made in assigning jurisdiction between constituent locals. And the fact that Respondent, in recognizing the Culinary Workers , may have been relying in good faith upon the purported award of jurisdiction by the AFL to that union, affords Respondent no ground of defense. By recognizing the Culinary Workers as exclusive bargaining representative of Respondent's employees involved herein, at a time when said union did not represent, and, indeed, could not have represented a majority of said employees , and by executing a collective-bargaining agreement implementing said recognition. Respondent has accorded said union unwarranted recognition, thereby depriving employees later employed in said classifications of the right of self-determination guaranteed by the Act, substituting its choice of bargaining representative for that of its employees, and furnishing unlawful support and assistance to said Culinary Workers . By said conduct, and by the statements of Project Superintendent deSilvia to the prospective employees , on March 24, and April 1 , 1952, to the effect that Respondent had dealt with the Culinary Workers in the past on other projects , had recognized said union as bar- gaining representative of its employees , that the employees would be represented by, and that Business Representative Alexander would approach them about joining, said union. Respondent has furnished illegal support and assistance to said union , thereby engaging in unfair labor practices within the meaning of Section 8 (a)(2); and by the foregoing conduct, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. It should be noted , also, that Respondenthas further engaged in unfair labor practices within the meaning of said sections by including in said collective-bargaining agreement union- security provisions exceeding the permissible limits of the Act . The provisions whereby Respondent is permitted to hire employees through the offices of the union, as well as through its own personnel office, and, upon failure of the union to furnish employees satisfactory to Respondent, to hire from other sources , do not contravene the Act. Nor does the requirement that all employees so hired apply for membershipin said union within 15 days , complete their membership within 30 days of the date of their employment, and maintain their membership security, and since the employees involved had not been covered by a collective-bargaining agreement while in the employ of GE, it is entirely plausible that deSilvia would have made the statements to them as testified to by employees Doerge and Ralston. Although the record does not clearly establish on which of said meetings the particular statements were made, the undersigned concludes and finds that deSilvia made the statements substantially as attributed to him by those employees on either or both said dates. UNIVERSAL FOOD SERVICE, INC 1 1 as a condition of employment during the term of the agreement, conflict with the Act. The further requirement , however , that such employees obtain a work slip from the union as a con- dition of employment is clearly violative of the Act. The statute prohibits the granting of preference in hiring or terms of employment to an employee because of his union membership or lack of membership, except that an employee may be discharged for failure to tender his initiation fees or periodic dues under a valid union-shop agreement. Although the Board has held that this does not prevent an employer from utilizing a union as a means of recruiting employees , to the employer may not impose as a condition of such hiring the requirement that the employee procure "clearance," "referral," or a .work permit from the union. By imposing such a requirement , the employer violates the Act, even though there may be in existence a valid union-security agreement authorized by the statute. It should be noted, moreover , that the general savings clause included in the contract does not suspend the operation of the illegal union-security provision , or absolve Respondent from the consequences of its unfair labor practices in executing the unlawful provisions. ii Respondent contends, however , that it has not applied or enforced the collective-bargaining agreement, or any of its provisions , since April 1, 1952, when it assumed the operation, and when the contract itself became effective. In particular . Respondent denies that it has hired any employees through the Culinary Workers or required membership in or work referrals from the labor organization as a condition of employment. The Board has held, however, that: As the mere execution of an unlawful union -security contract constitutes a violation of Section 8 (a) (1), (2), and (3) of the Act, the fact that the union-security clause was not enforced does not preclude a finding that the Company violated these sections of the Act. is For, the Board has said: Such an unlawful provision serves no less as a restraint on employees ' right to refrain from joining an organization than if the parties intend to enforce it, where, as here, there is no evidence that the employees were informed that the [unlawful provision], which theretofore had been in effect, would no longer be operative. is The Board has also held, however, that in the absence of an intention to enforce the provi- sion, the continued existence of such provision in the contract does not constitute a violation of Section 8 (a) (3) by an employer , or of Section 8 (b) (2) by a union, because "no discrimina- tory conditions of employment [are] actually thereby created." 14 Superintendent deSilvia testifed that he at no time called on the Culinary Workers to furnish Respondent with employees; that membership in that union has not been made a condition of employment with Respondent ; that he has hired all employees through direct application to Respondent; and that, in obedience to President Hiddleston's instructions, he has observed a policy of strict "neutrality." Hiddleston, too, testified that, since assuming the operation, Respondent has not given effect to the contract with the Culinary Workers, has not operated thereunder , and that the project has been operated " non-union " under a policy of neutrality. He further testified that, to his knowledge, Respondent has not hired employees through the Culinary Workers, and that deSilvia has reported to him that that has been the fact. The undisputed evidence, that none of the employees hired on April 1, 1952, including the 15 em- ployees who divulged their affiliation with Building Service Employees in their employment applications , was required to become a member of, or to obtain a work referral from, the Culinary Workers, furnishes support of Respondent's position. With one possible exception, presently discussed, so far as the record discloses , no other employee or applicant for employment was subjected to this requirement. The General Counsel, however, points to the following circumstances as establishing that Respondent has been operating under the contract , and has enforced the provisions requiring union membership or work referral by the Culinary Workers as a condition of employment. First, he contends that, since Respondent has admittedly continued the same wage scales, ioSee, e.g., National Union of Marine Cooks and Stewards (Pacific American Shipowners Association), 90 NLRB 1099; Missouri Boiler and Sheet Iron Works, 93 NLRB 319; American Pipe and Steel Corp., 93 NLRB 54. ii See New York State Employers Association, 93 NLRB 177. itRockaway News Supply Company, Inc , 94NLRB 1056, citing Julius Resnick, Inc., 86 NLRB 38; Childs Company, 93 NLRB 281. is Port Chester Electrical Construction Corporation, et al., 97 NLRB 359. 14 Port Chester, etc., supra, citing Monolith Portland Cement Company et al , 94 NLRB 1358 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours of work, and conditions of employment as those provided for in the contract , it has been doing so in conformity with the contract, and, hence, that the contract has, in fact, been performed and enforced. The short answer to this contention is that, even in circumstances where the Board requires an employer to cease giving effect to a collective-bargaining agree- ment with an assisted union, the Board expressly provides that nothing in its order is to be deemed to require the employer to vary or abandon the wage , hour , and other substantive provisions established m the performance of such contract . Evidence of this type is, therefore, of no probative value in establishing that Respondent has continued to perform and enforce the contract. The other circumstance involves the hiring of George Harrison, who was employed by Respondent, on April 4, 1952, as a janitor, and who later became a member of the Union. Harrison testified that on April 3, 1952, he went to the "unemployment office" at Pasco, if and applied for a job as janitor. He was referred to the union hall of the Culinary Workers, where he was interviewed by Business Representative Alexander . According to Harrison, Alexander telephoned Superintendent deSilvia in his presence , and then told Harrison that deSilvia could use another janitor . Before leaving for deSilvia's office, he was told by Alex- ander that the Culinary Workers had a special membership rate of $5, which included the first months ' dues . There was no showing that Alexander advised Harrison that membership in, or a work slip from, or referral by, the Culinary Workers , was required as a condition of employment with Respondent, although Harrison testified that he understood Alexander to intimate as much. Harrison paid Alexander $5 by check, but the record does not disclose whether he signed a membership application or otherwise indicated his intention of joining that union. Nor does it reveal whether Alexander furnished him with a work slip or referral. When Harrison reported to deSilvia and explained that he had been sent by Alexander, deSilvia told him that he did not need any more help . Harrison said, according to him, "Well, that 's funny to me, she told me that you did want one more man." Superintendent deSilvia told him that he might as well understand that deSilvia was "the boss ." Finally, however , deSilvia gave Harrison a slip authorizing a physical examination, and the following day, Harrison was hired. According to deSilvia, Harrison told him that he had been "sent out to work," apparently, as far as the record discloses, without sayingwho had sent him . Just as deSilvia told him that he had no job for him, the barracks foreman entered, and, motioning deSilvia into his private office, told him that he "could possibly use an extra man for a time ." Testifying that he "rather took pity on the old fellowbecausehe was out of work," deSilvia hired him. According to deSilvia , he did not call Mrs. Alexander at any time in connection with Harrison 's employ- ment, although he did not state whether , as Harrison testified , she had called him. Alexander, herself, though testifying at the hearing , was not asked about nor did she testify regarding the alleged telephone conversation with deSilvia or the incident in general . Harrison did not submit to deSilvia any work or referral slip from the Culinary Workers or any other union. The most that can be said regarding this isolated incident is that , in an effort to recruit Harrison as a member in the Culinary Workers , Alexander may have given Harrison the impression that membership in that union was an indispensable condition of employment with Respondent. It is not even clear from Harrison 's testimony that she so advised him. In any event, there is no showing that deSilvia told Harrison that membership in, or referral by, the Culinary Workers was required as a condition of employment, or that DeSilvia required Harrison to furnish evidence of membership in or a referral by that union, or that Harrison actually submitted either before being hired . Even assuming, contrary to the evidence, here, that Respondent, through deSilvia, utilized the Culinary Workers as a medium for recruiting employees , this, alone, would not have infringed upon the Act , so long as Respondent did not require membership in that labor organization as a condition of employment. Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and finds that Respondent has not, since April 1, 1952, performed or enforced the contract with the Culinary Workers , has not required membership in, clearance by, or work referral from said Culinary Workers, and has not in this respect engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. Events culminating in the strike Soon after April 1st, the Union learned that Respondent had signed the contract with the Culinary Workers . On about April 4, Attorney Williams and Business Representative Miller called on Superintendent deSilvia at his office in North Richland. Williams repeated the Union 's claim of majority representation of the employees whom Respondent had hired to i$Presumably a governmental agency. UNIVERSAL FOOD SERVICE, INC. 13 service the construction camp. Superintendent deSilvia informed him that union problems were outside the scope of his duties, and a function of Graham , apparently a company representative in Seattle, not otherwise identified at the hearing. 16 However , deSilvia placed a call to Graham but was unable to reach him. Miller told deSilvia that the employees whom the Union represented were becoming "very restless," that they were complaining that their wages were less than what they had been receiving as employees of GE, that their duties had been increased , and that the employees were threatening to "walk off the job.'i Again, deSilvia repeated that , as manager of the project , he was merely responsible for the operation, but that he had a call in for Graham, and that if he reached him he would communicate with Miller at his home that evening. At about 6 p.m. that night , April 4, a conference call was held by Hiddleston and Graham with Miller , during which the company officials expressed concern over the "strike picture" at North Richland. Miller told them that as representative of the employees the Union would be unable to "keep them on the job." The discussion ended inconclusively, and was postponed to the following day. On April 5, another conference call was held between Hiddleston and Graham , and possibly Graves, on the one hand, and Miller and Attorney Williams , who were in the latter 's office in Pasco , on the other. Williams told Graham that the Union could prove by authorization cards that it represented the majority of Respondent 's employees in the categories involved, and that it was, therefore, entitled to recognition. Expressing concern that the company had signed a contract with the Culinary Workers without the knowledge of the employees , Williams warned Graham that unless the Union were granted recognition , it would call a strike because of Respondent 's unfair labor practices in signing the collective -bargaining agreement, and interfering with the employees ' free choice of representative . In addition , Williams stated that such strike would also be in support of a demand for adjustment of wage rates and hours of work. Graham insisted that the issue concerned a jurisdictional dispute rather than a question of representation , and that the unions should be required to resolve the conflict through their internal machinery. Williams disagreed, maintaining that in view of the Union 's majority status, Respondent's position was untenable . Hiddleston and Graham advised the union repre- sentatives that they would be in Richland the following Monday. April 7, and the discussion was deferred until then. On that date, Miller and Williams met with Hiddleston and Graham at the Desert Inn. The union representatives reiterated their position , and stated that the Union intended to call a strike because of Respondent's unfair labor practices . Discussions were continued the following day, each side adhering to its position . When Graham suggested that the question be resolved by the Board in the Union's pending representation proceeding, Williams expressed willingness to ha%e the issue determined by an election . Graham, however, could offer no suggestion as to how an election could be held while the existing contract with the Culinary Workers , which he claimed to be valid, and, hence a bar to an election , was outstanding. The same day, representatives of the AEC and the Federal Mediation and Conciliation Service attempted to intercede in the dispute but without success. On the night of April 9, the Union called a meeting of Respondent 's employees at the Hanford Atomic Metal Trades Council hall. Attorney Williams addressed the membership and re- capitulated the events which had occurred and his discussions with Hiddleston and other company officials . Expressing the opinion that Respondent , by its conduct, had committed an unfair labor practice, and that any strike in which the employees engaged would be protected as an unfair labor practice strike. Williams advised the union members of their rights in the event they went on strike. After extensive discussion, a strike vote was taken, and, with 25 members present, a motion was carried by a vote of 23 to 2, authorizing a strike, effective next morning, April 10, at 8 o'clock. Shortly before the appointed time , Miller delivered to Superintendent deSilvia a letter, signed by Miller as business representative of the Union , addressed to Respondent, as follows: As the representative of the majority of the janitors and janitresses now employed by your organization at North Richland, Washington , B.S.E.I.U., Local 201 hereby informs you that said employees are leaving the job as of today to protest your interference with their right to select a collective bargaining representative of their own choosing and will remain off the job until such interference ceases. i6Respondent's answer, however , is signed on its behalf by Robert W. Graham, "Its Attorney," and presumably he is the person to whom reference was intended. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A total of 31 employees thereupon went on strike that day. 17 The record does not establish the exact number of janitorial employees at this time, but, according to deSilvia, no more than 6 persons , including 2 head bull cooks, to remained at their jobs . Using deSilvia 's figures, it would thus appear that, on April 10, there were, at most, 37 rank-and-file employees in the job classifications involved, of whom 31 went on strike. Respondent almost immediately began making replacements . According to deSilvia , as soon as news of the strike became known, job applicants began crowding his office. In addition, deSilvia dispatched his secretary to the trailer camps in the afea to recruit replacements. By the end of the day, Respondent had hired a full crew of replacements. The same day, Business Representative Alexander, on behalf of the Culinary Workers, procured the signatures of 42 employees to typewritten documents designating that union as their collective-bargaining representative. Apart from I. W. Dudley and Lyle L. Travis, both foremen and admitted supervisors , who signed these documents , only 5 employees , including Frank L. Shepard, a head bull cook, who designated the Culinary Workers, had been employed by Respondent on April 1, 1952, the remainder were apparent replacements. On the basis of these designations, the Culinary Workers filed a representation petition, on April 14. 1952, in Case No. 19-RC-1063. 5. The applications for reinstatement The same day, April 14, 1952, Business Representative Miller notified Respondent, by letter addressed to the attention of Superintendent deSilvia, of the desire of the employees repre- sented by the Union to return to work unconditionally. This was supplemented by a separate letter on stationery of the Union, similarly addressed, and signed by 27 strikers, advising Respondent of their desire to return to work. Both communications were received by deSilvia at North Richland, on April 16, and forwarded by him to Respondent at its Seattle office On April 21, upon instructions from the Seattle office, deSilvia prepared a list of the names and addresses of the 31 striking employees, and forwarded it to Seattle. A form letter was then prepared at the Seattle office, signed by Hiddleston as president of Respondent, dated April 24, 1952, the text of which follows: Our attention has been called to an unfair labor practice charge filed against our company by Building Service Employees Union 201 in connection with our operation at the Hanford Works, North Richland, Washington. Contrary to the statement therein contained and as that organization as well as you and our other employees have at all times known, we have not at any time and do not now require as a condition of employment or continued employment, membership or nonmembership in any labor organization We have hereto- fore and do now, fill all vacancies from applications for employment filed directly with us. In view of the fact that both the Building Service Employees Union 201 and Hotel and Restaurant Employees and Bartenders International Union, Local 208 have filed petitions with the National Labor Relations Board for certification as the bargaining representative for our employees we cannot lawfully grant the request for recognition of Building Service Employees Union 201. We propose to continue the foregoing practices until all questions of employee repre- sentation have been determined by the National Labor Relations Board, anything in our agreement with Cullinary (sic) Workers, Local No. 208 of the Hotel and Restaurant Employees International Alliance and Bartenders International Legue (sic) of America to the contrary not withstanding (sic). You and certain of our employees heretofore went on strike on April 10, 1952 for various assigned reasons. We acknowledge receipt, on April 16, 1952 of your letter dated April 14, 1952, expressing a desire to return to your job Please be advised that we will reinstate you to your job as promptly as indicated by written notice delivered to us that you will be available for work commencing on or before Wednesday, April 30, 1952, at 7:45 A M. Superintendent deSilvia received a supply of these form letters on the morning of April 24, 1952, and, pursuant to instructions by Respondent, mailed by registered mail, return receipt requested, a copy to each of the strikers whose names appeared on the list he had prepared on April 21. Most of these letters were delivered on April 25, several on April 26, and 2 on April 28. Of the 31 strikers to whom letters had been mailed, 25 replied by separate mimeo- 17 Of this number, four, who apparentlyhad not attended the union meeting, and were unaware of the strike vote taken, reported for work but joined the strikers soon afterward. 18 According to Respondent, head bull cooks possess no supervisory authority. UNIVERSAL FOOD SERVICE, INC. 15 graphed letters , apparently prepared by the Union, and dated April 25, 1952, requesting rein- statement on or before Wednesday, April 30 , 1952, pursuant to Respondent 's offer. Three others replied by separate handwritten letters , each dated April 28, 1952, addressed to deSilvia, stating their availability for work "at any time." A fourth replied by letter, dated April 28, addressed to "Mr. L. H. Silver," to the same effect. Another, from Maggie S. Wingfield , undated, and addressed to Respondent at North Richland , stated that she was under doctor's care, but that she wished to be reinstated as soon as she was physically able. The record discloses no reply from the last of these strikers , Winna B. Rose, who had, however, joined with the group which had signed the letter of application for reinstatement on April 14. By identical letters, each dated April 28 , 1952.19 signed by deSilvia on behalf of Respondent, all the strikers who had replied to Respondent 's offer of reinstatement were requested to report for work on April 30, 1952, and all who reported on that date were reinstated. m The facts detailed above establish that the strike in which Respondent's employees engaged, on April 10, 1952, was causedbyRespondent's unfair labor practices in according the Culinary Workers unwarranted recognition as exclusive representative of Respondent's employees in an appropriate unit, in executing a collective-bargaining agreement with said union, and in granting said union a greater measure of union security than that permitted by the Act. Although economic reasons may have contributed to or even precipitated the work stoppage, this fact does not detract from the character of the strike as an unfair labor practice strike. n The real causes of a strike are to be found "in the whole sequence of events n preceding it, and this motivation is to be determined "in the light of the cumulative effect of [the employer's) prior tainted labor practices." 23 It follows, therefore, that the 31 strikers who concertedly left work on April 10, 1952, were entitled , upon application, to reinstatement to their former or substantially equivalent posi- tions, even though they had meanwhile been replaced . Respondent being required to dismiss the employees hired as replacements , if necessary. These striking employees , with one exception , were actually reinstated on April 30 , 1952, the remaining employee being reinstated shortly afterward as soon as she reported herself physically able to return to work . Each of these employees, however, had made written application for reinstatement on April 14, 1952, received by Respondent on April 16, 1952. Ordinarily, these employees would be entitled, as the General Counsel contends, to be made whole for any loss of earnings incurred from the date of their unconditional application for reinstatement to the date of Respondent 's offer of reinstatement, less their net earnings during said period . Although there is no evidence that Respondent refused to reinstate these strikers , it gave the Union or the strikers no indication of its willingness to reinstate them until April 24, when it notified the'strikers that it would reinstate all those who notified Respondent of their availability on or before April 30. Respondent contends , however, that nothing in the allegations of the complaint afforded any basis for assuming that Respondent was being sought to be charged with back pay for the strikers , and that it was surprised by this claim at the hearing. Moreover, it maintains that the delay in reinstating the strikers was due to normal administrative and personnel routine. As to the former contention , there is some merit, for, while the complaint alleges that Re- spondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3), it is apparent that these allegations relate to the execution and alleged enforcement of the collec- tive- bargaining agreement with the Culinary Workers . There is no allegation that Respondent's employees engaged in a strike, that the strike was caused by Respondent 's unfair labor practices , or that the strikers were denied reinstatement after their unconditional application. Respondent , however , did not avail itself of the opportunity of moving for further particulars or to have the complaint made more definite and certain before the hearing . In view of Re- spondent 's claim of surprise, the undersigned offered Respondent a reasonable opportunity 19One of the copies of these letters , addressed to Earl Chapman, is dated April 26, but it is not clear whether this was the actual date , or whether the date was erroneously transcribed in the copying. In any event, this discrepancy is immaterial. 20 In its letter to Maggie S. Wingfield , Respondent directed her to report for work as soon as she was released from her doctor's care. According to deSilvia 's undisputed testimony, she was reinstated sometime after Apri130 . assoon as she reported herself able to return to work. 21N.L.R.B. v. Remington Rand, Inc., 94F. 2d862, 871-872(C.A. 2), cert. denied304U.S.576; N.L.R.B. v. Stackpole Carbon Co.. 105 F. 2d 167,175-176 (C.A. 3). cert. denied 308 U.S. 605; Republic Steel Corporation v. N.L.R.B., 107 F. 2d 472, 478 (C. A. 3), cert. denied, except as to provisions not here involved , 309 U.S. 684. nN.L.R.B. v. Barrett Co., 135 F. 2d 959, 961-962 (C.A. 7). EsGreat Southern Trucking Co., v. N.L.R.B., 127 F . 2d 180 , 186(C.A. 4), cert. denied317 U.S. 652. See also, Gordon P . Brown, an individual doing business under the trade name and style of Brown Radio Service and Laboratory, 70 NLRB 476, 477. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within which to prepare to meet the issues newly raised. Respondent declined the opportunity, but the issues were fully and fairly litigated at the hearing . The facts relating to this issue were not in dispute. Respondent had available at the hearing and called witnesses who were entirely familiar with the facts relating to the strike, the applications for reinstatement, and the subsequent offers of, and actual reinstatement , and offered evidence bearing thereon. Under all the circumstances , the undersigned, therefore, concludes that Respondent has not been prejudiced by the absence of specific allegations in the complaint relating to the delay in reinstating the unfair labor practice strikers. As for the contention that the delay in reinstating the strikers was not unreasonable, Respondent's position, in effect, is that the lapse of time between the strikers ' unconditional application, and their actual reinstatement , was due to the exigencies of ordinary office and personnel procedures , and the necessity for the exchange of information between its office at North Richland and its home office in Seattle. The undersigned perceives no reason for departing from the Board 's usual rule, and concludes that any loss arising out of Respondent's delay in reinstating the strikers should be borne by 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 reinstate- ment. Under these circumstances , the fact that the strikers , in replying to Respondent's offer of reinstatemeni, acquiesced in being reinstated on April 30 , does not deprive them of the rights otherwise accruing by virtue of their status as unfair labor practice strikers. B. The refusal to bargain 1. The appropriate unit The complaint alleges that the following unit of Respondent 's employees has, at all times material, been appropriate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the Act: All weekly salaried janitors, custodians , maids , park attendants, and all other weekly salaried janitorial employees within the jurisdiction of the Universal Food Service, Inc., Hanford Works, North Richland, Washington. Respondent denies that any of the employees in the category or job classifications involved herein are, or have'been, "weekly salaried " employees, but contends , and has offered un- contradicted evidence, which the General Counsel does not challenge, that the employees involved are all hourly rated employees paidona weekly basis. Respondent further denies that it employs any persons designated as custodians , maids or park attendants. It was ultimately stipulated, and the undersigned finds , that the following unit of Respondent's employees is. and, at all times material, has been, the appropriate unit for purposes of collective bargaining. The undersigned further finds that said unit will assure to said em- ployees the fullest freedom in exercising the rights guaranteed by the Act: All hourly rated janitors, janitresses , and all other janitorial employees, commonly referred to as bull cooks, employed by Respondent at Hanford Works, North Richland, Washington, excluding all supervisors as defined in the Act. U - 2. Representation by the Union of a majority in the appropriate unit There were introduced at the hearingonbehalfof the Union, 21 designation cards authorizing Local 201 to represent the persons signing the designation cards for purposes of collective bargaining. These designations were dated between October 2Z 1951 , and April 7, 1952. All of those who had signed cards prior to April 1, 1952, had been employed by GE on the undertaking which Respondent assumed on that date under its contract with the AEC. UThe term "bull cook," a relic of logging and construction camp operations , originally in- cluded culinary workers. As used by Respondent it applies to both men and women, and includes no culinary workers , but only those performing housekeeping and janitorial services for the facilities involved. The duties of head bull cooks entail the cleaning of washrooms, walls, woodwork, halls, and shower stalls and are generally more arduous than those of the ordinary bull cook. Although head bull cooks receive a higher rate of pay, they have no super- visory authority. The foremen, however, are conceded tobe supervisors within the meaning of the Act, and the undersigned so finds. They are, therefore, to be regarded as excluded from the appropriate unit as found, above. UNIVERSAL FOOD SERVICE, INC. 17 On April 1, Respondent hired as new employees a total of 35 men and women, previously employed by GE at the North Richland Construction Camp in janitorial jobs. Of these 35, 15 had indicated on their employment applications their affiliation with Local 201, the charging union herein, or its international. 25 Two others, Ralston and Doerge, who testified in this proceeding, were members of the Uniononthat date, and, with some 8 others, had not divulged their union affiliation in their employment applications. Of the 21 who signed authorization cards in favor of the Union, 1, Ruth Mae Carter, did not sign a card until April 7, 1952, and another, Seminina V. Jones, was shown not to have been an employee of Respondent . Four other employees , Mildred Anderson, Emily Jackson, Florence Stoner, and Jay Westfall, were shown by union dues records to have been members of Local 201 on or before April 1, 1952. With regard to 2 others, Louise Jefferson and Mrs. McCarrel, although Business Representative Miller testified that they were dues-paying members at the time of the strike, on April 10, there was no showing that they had designated the Union on or before April 1. Two others, William W. Rowe and Cora B. Sanders ( also referred to in the record as Cora B. Sanderson), signed designation cards on April 14. Thus, it appears that, on April 1 , 1952, of 35 employees in the appropriate unit , excluding Ruth Mae Carter and Seminina V. Jones , and Jefferson and McCarrel, 23 employees were members of or had designated Local, 201, and that the Union, therefore, represented a substantial majority of Respondent 's employees in'that unit. Despite deSilvia 's testimony that he hired about 10 additional employees in the categories involved after April 1. w it is apparent that the Union continued to command a majority. For, even without considering any increment in union membership among this group, 27 assuming an additional 10 employees, deSilvia's highest estimate, it is evident that the Union still represented 23 among a group of 45 employees , a bare majority. Moreover, the record establishes that 31 employees engaged in the strike on April 10, 1952. Although the record does not indicate the exact number of persons employed in the job classi- fications involved at the time, no more than 6 employees remained at their jobs . Adopting deSilvia 's figures as to the number of nonstrikers , it would , thus, appear that, on April 10, 1952, there were 37 employees within the appropriate unit , of whom 31 went on strike. At least 23 were members of the Union, or had designated that labor organization as their bargaining agent on or before April 1. In addition, Ruth M. Carter joined the Union on April 7, and William W. Rowe and Cora B. Sanders, on April 14, 1952, presumably while the strike was still in progress , and before the applications for reinstatement. George W. Harrison, a striker , called as a witness for the General Counsel , testified that he , too, was a member of the Union, having presumably joined during the strike , though the exact date is not disclosed by the record.. It is , therefore, clear, and the undersigned finds, on the basis of the foregoing and upon the entire record, that the Union was, on April 1, 1952, and has been, at all times material since, the duly designated representative of a majority of the employees in the unit found herein to be appropriate, and, by virtue of Section 9 (a) of the Act, was, on said date, and at all times material since, has been the exclusive representative of all Respondent 's employees in said unit, for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. 3. The refusal to bargain It is well settled that a clear and unequivocal demand by the majority representative upon an employer is an indispensable prerequisite to a finding of a refusal to bargain . The request to bargain need not be formal nor need it be made in any particular manner. It is sufficient that the Employer is clearly aware of the employees' desire to enter into bargaining negotia- tions through their designated bargaining agent . The record discloses that the Union's only actual demand "upon Respondent to bargain was made on March 21, 1952 , before Respondent had embarked upon its undertaking at North Richland, or hired any employees. This demand could, therefore, hardly have been effectual as a prospective demand to furnish the basis for a charge of refusal to bargain. Respondent , however, did not urge this as a ground of defense to the refusal to bargain, asserting, instead , that it refused to bargain with the Union because of the conflicting claim by the Culinary Workers and Respondent 's alleged determination to 25 Inasmuch as it is not alleged or contended that the question on the employment application regarding union affiliation constituted unlawful interrogation , no such finding is made. 2Because the original payroll records were in Seattle , and unavailable at the hearing, the record does not disclose the exact number of employees so hired or the dates on which they were hired. 27 According to Union Representative Miller, between 10 and 12 employees joined the Union after April 1 and before the strike. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintain an attitude of neutrality. The fact that Respondent had hired no employees until April 1, however , had proved no obstacle to its recognition of the Culinary Workers in the contract executed March 17, effective April 1. In any event , assuming that the Union 's demand, on March 21 , was premature, the question is whether the absence of any formal demand by the Union after April 1, exonerated Respondent from the duty of bargaining with the Union thereafter, despite its status as majority repre- sentative. The General Counsel alleges no specific date of demand or refusal to bargain. In his amendment to the complaint , he alleges merely that Respondent has, since April 1, 1952, failed and refused to bargain with the Union, "after demand for recognition and bargaining was duly made." Since the record discloses no formal demand by the Union after March 21, the issue to be determined is whether this affords Respondent any defense to such refusal It has been held, however , that under some circumstances a union may be excused from making a formal demand , as where the employer 's conduct demonstrates that a demand would have been futile . Inasmuch as Respondent had already recognized the Culinary Workers on March 17, it is evident that any demand by the Union upon Respondent for collective - bargaining rights would have been futile . And this conclusion is not impaired by the fact that Respondent, after execution of the contract, and assumption of its undertaking did not enforce or assert its contract. For, it is clear that, although Respondent may not have actually enforced its contract, it at no time withdrew recognition from the Culinary Workers or notified that union or Respondent 's employees that the contract was no longer effective and would not be enforced. Respondent's claim of neutrality in these circumstances constituted nothing more than an insistence on the maintenance of the status quo, which included recognition of the Culinary Workers. It is, therefore, evident that any demandby the Union after April 1, would have been an idle gesture . But the conclusion need not rest on this ground alone. As has been shown , as early as April 4, 1952, after the Union learned of Respondent's conduct in recognizing the Culinary Workers and executing a contract with that labor organi- zation, the Union, through its attorney , renewed its claim of majority and notified Super- intendent deSilvia that the Union intended to call a strike, unless Respondent accorded it recognition , because of Respondent 's unfair labor practices in granting the Culinary Workers recognition, and executing a collective - bargaining agreement , thereby interfering with the employees ' free choice of bargaining representative . Again, on April 10, and before the employees went on strike, Business Representative Miller reiterated this position in a letter served on deSilvia. The Board has held that a union's letter, accusing an employer of unfair labor practices, and threatening a strike for recognition unless he agreed to a consent election or met with the union to negotiate a contract, is sufficient to constitute a request for bargaining, and that an employer 's failure to reply constitutes a refusal to bargain . 28 It is undisputed , here, that Respondent for all practical purposes rejected all the Union's demands for bargaining rights. It is, therefore, found that any formal demand by the Union upon Respondent after April 1, 1952, would have been futile . It is further found that Attorney Williams ' statements to Superintendent deSilvia , on April 4, and the Union's letter, reiterating its position , served by Union Representative Miller on deSilvia , on April 10, 1952, before the strike, constituted a sufficient and effective demand upon Respondent to bargain. Nor is Respondent assisted by the fact that the Culinary Workers, on April 14, 1952, obtained designations authorizing it to represent the employees It is obvious that, with exceptions already noted , most of the remaining employees who designated the Culinary Workers were employees who had replaced the unfair labor practice strikers . The filing of a representation petition , based upon these designations , afforded Respondent no further justification for refusing to recognize the Union, since no real question of representation could have been created thereby. Upon the basis of the foregoing , and upon the entire record, the undersigned concludes and finds that, at least since on or about April 4, 1952 , Respondent has refused to bargain with the Union as exclusive representative of its employees within an appropriate unit , and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act, and, by said conduct, has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent , set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, above , have a close, intimate, and sub- 25 Sixteenth Annual Report of the National Labor Relations Board, 192, citing Intertown Corp. (Michigan), 90 NLRB 1145. UNIVERSAL FOOD SERVICE, INC. 19 stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices . It will, therefore, be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has furnished unlawful support and assistance to the Culinary Workers, by recognizing said union as the exclusive representative of Respondent's employees within an appropriate unit , and executing a collective- bargaining agreement with said union , containing unlawful union- security provisions , thereby violating Section 8 (a) (2), and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7, in violation of Section 8 (a) (1) of the Act. In order to restore the status quo, and to afford said employees the full right of self-determination and freedom of choice of representatives guaranteed by the Act, it will be recommended that Respondent withdraw and withhold all recognition from said Culinary Workers as the exclusive repre- sentative of the employees within the appropriate unit, for the purpose of dealing with it concerning grievances , labor disputes , wages, rates of pay, hours of work, or other condi- tions of employment , unless and until said Culinary Workers shall have been certified by the Board as the duly selected representative of said employees for purposes of collective bar- gaining. It will' be further recommended that Respondent cease and desist from giving effect to this, or any other collective-bargaining agreement with said Culinary Workers, respecting rates of pay, wages , hours of employment , or other conditions of employment , unless and until it shall have been certified by the Board; provided , however , that nothing in these recommendations shall be deemed to require or authorize Respondent to vary or abandon those wage, hour, seniority, or other substantive features of its relations with its employees, established in the performance of said contract , or to prejudice the assertion by the employees of any rights under said contract , as extended , renewed, modified , supplemented , or superseded. It has also been found that Respondent has discriminated in regard to the hire and tenure of its employees , by failing to reinstate them , after their unconditional application on April 16, 1952, from said date until April 30, 1952, thereby discouraging membership in a labor organization , in violation of Section 8 (a) (3) of the Act. It will, therefore, be recommended that Respondent make each of said employees whole for any loss of pay each may have suffered by reason of Respondent 's discrimination, 29 by payment to each of a sum of money equal to the amount said employee would have normally earned as wages from the date of said uncondi- tional application , on April 16 . 1952, and the failure to reinstate said employee . to the date of said employee 's reinstatement , on April 30. 1952, less said employee 's net earnings during said period . 30 Loss of earnings shall be determined in accordance with the Board's formula in F. W. Woolworth Company , ii and, in accordance with the policy announced therein, Respondent shall make available to the Board and its agents , upon reasonable request, all pertinent records necessary to facilitate the computation of back pay. It has also been found that Respondent has, since on or about April 4 . 1952, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit . It will, therefore , be recommended that Respondent, upon request, bargain with said Union as the exclusive representative of said employee, and, if agreement is reached, embody the same in a written collective -bargaining agreement with said Union. The unfair labor practices in which Respondent has been found to have engaged, while technically violative of the Act, appear to have stemmed from a misconception of Respondent's duties and responsibilities thereunder , rather than from a fundamental opposition to the objective of the Act. The undersigned does not , therefore, believe that danger exists of the commission by Respondent of unfair labor practices in the future on the basis of its conduct in the past . It will not, therefore, be recommended that Respondent cease and desist from in any manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by the Act. 32 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: 29 With respect to Maggie S. Wingfield, it will not be recommended that she be made whole for any loss of earnings she mayhave sustained while unavailable for work because of illness. so Crossett Lumber Co., 8 NLRB 440. 3190 NLRB 289. 32Cf. May Department Stores Company , Inc. v. N.L . R.B., 326 U.S. 376 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Building Service Employees International Union, Local 201, AFL, and Hotel and Restau- rant Employees and Bartenders International Union, Local 208, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2(5) of the Act. 2. By recognizing Culinary Workers and executing a collective-bargaining agreement with said union on behalf of its employees, containing unlawful union -security provisions , at a time when said Culinary Workers did not represent a majority of said employees within an appropriate unit, Respondent has contributed assistance and support to said Culinary Workers, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of its employees, thereby discouraging membership in a labor organization. Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 4. All hourly rated janitors, janitresses, and all other janitorial employees, commonly referred to as bull cooks, employed by Respondent at Hanford Works, North Richland, Washington, excluding all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. Building Service Employees International Union, Local 201, AFL, was, on April 1, 1952, and has been, at all times material since, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By failing and refusing, on and after April 4, 1952, to bargain collectively with Building Service Employees International Union, Local 201, AFL, as the exclusive representative of the employees in the aforesaid unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act 7. By the foregoing acts and conduct, and by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) 8. Respondent has not discriminated in regard to the hire or tenure of employment or terms and conditions of employment of its employees, by entering into a collective-bargaining agreement with Hotel and Restaurant Employees and Bartenders International Union, Local 208, affiliated with the American Federation of Labor; has not required its employees or applicants for employment to join and maintain membership in Hotel and Restaurant Em- ployees and Bartenders International Union, Local 208, as a condition of employment, and has not thereby encouraged membership, in said labor organization, or discouraged membership in Building Service Employees International Union, Local 201, AFL, in violation of Section 8 (a) (3). 9. The aforesaid unfair labor practices in which Respondent has been found to have engaged are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that- WE WILL withdraw and withhold all recognition from Hotel and Restaurant Employees and Bartenders International Union, Local 208, affiliated with the American Federation of Labor , as the exclusive representative of our employees in the unit found appropriate, for the purpose of dealing with us concerning grievances , labor disputes, wages, rates of pay, hours of employment , or other conditions of employment , or for the purposes of collective bargaining , unless and until said labor organization shall have been certified by the Board as the exclusive representative of said employees. WE WILL cease performing or giving effect to our contract , dated April 1, 1952, with said Hotel and Restaurant Employees and Bartenders International Union, Local 208, affiliated with the American Federation of Labor , or to any extension , renewal , modifica- tion thereof, or to any supplement thereto, or to any superseding agreement with said union, unless and until said labor organization shall have been certified by the Board as exclusive representative of said employees. DEPENDABLE MACHINE CO., INC. 21 WE WILL NOT enter into, renew, or enforce any provisions in any collective- bargain- ing agreement with Hotel and Restaurant Employees and Bartenders International Union, Local 208, or any other labor organization, which requires employees or applicants for employment to join, or maintain membership in, such labor organization as a condition of employment, unless such agreement shall have been authorized as provided in the Act. WE WILL NOT discourage membership in Building Service Employees International Union, Local 201, AFL, or any other labor organization of our employees, by failing or refusing to reinstate any of our employees, or in any other manner discriminate against our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT refuse to bargain collectively with, and, upon request, WILL BARGAIN collectively with Building Service Employees International Union, Local 201, AFL, as exclusive representative of the employees in the unit set forth below, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, and if agreement is reached, embody the same in a written collective-bargaining agreement with said union. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Building. Service Employees International Union, Local 201, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make whole each of the employees who went on strike on April 10, 1952, and who made unconditional application for reinstatement, on April 14, 1952, for any loss of earnings each may have sustained, as a result of the discrimination, in the manner set forth in the section in the Intermediate Report and Recommended Order entitled "The Remedy. " All hourly rated janitors, janitresses, and all other janitorial employees, commonly referred to as bull cooks, employed by Universal-Food Service, Inc., at Hanford Works, North Richland, Washington, excluding all supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. All our employees are free to become or remain members of Building Service Employees International Union, Local 201, AFL, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to the hire and tenure of employment or any term or condi- tion of employment of any employee or applicant for employment because of membership or nonmembership in, or activity on behalf of any such labor organization, except as aforesaid. UNIVERSAL FOOD SERVICE, INC., Employer. Dated .......................................................... By .................................................. (Representative) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. DEPENDABLE MACHINE CO., INC. and INTERNATIONAL AS- SOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL, LOCAL 729. Case No. 11-CA-411. April 13, 1953 DECISION AND ORDER On February 20, 1953, Trial Examiner Max M. Goldman issued his Intermediate Report in the above - entitled proceeding, finding that the Respondent had engaged in and was engaging in 104 NLRB No. 3.