Comfort Springs Corp.

906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole Eddie Robinson and Irma Baruday for any loss of pay suffered by them by reason of the discrimination practiced against them in ac- cordance with the recommendations of the Intermediate Report. All our employees are free to become or refrain from becoming members of the above-named labor organization. THE LITTLE ROCK DOWNTOWNER, INC., Employer. Dated--- ---------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify either of the above -named employees, Eddie Robinson and Irma Baruday, if either is presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 22 North Front Street, Memphis, Tennessee, 38103, Telephone No. Jackson 7-5451, if they have any question concerning this notice or if they have information that its provi- sions are being violated. Comfort Springs Corporation and Upholsterers' International Union of North America, AFL-CIO. Case No. 5-CA-2101. July 30, 1963 DECISION AND ORDER On October 19,1962, Trial Examiner William F. Scharnikow 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 attached Inter- mediate Report. Subsequent to the issuance of the Intermediate Report, the Respondent notified the Board's Regional Office that a strike, called by the Union on January 23, 1962, had been settled and a contract signed, and that, pursuant to that settlement, the Union would request withdrawal of its charge. The Union, however, there- after notified the Regional Office that the charge should not be with- drawn as the Respondent had assertedly breached its agreement by not processing certain grievances. On April 26, 1963, the General Counsel filed with the Board a mo- tion for issuance of Board order seeking an order providing for the reinstatement of unfair labor practice strikers. The Respondent filed an answer in opposition to this motion. On May 15, 1963, the Board 1 issued an order notifying the parties that it would consider the motion and answer as a request nuno pro tune, to reopen the proceeding and to permit the parties to file exceptions and briefs, and granting such ' Pursuant to the provisions of section 3(b) of the National Labor Relations Act, the Board has delegated Its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 143 NLRB No. 95. COMFORT SPRINGS CORPORATION 907 request. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs, and the Respondent also filed objections to the Board's order permitting re- opening of the proceeding. It is long-established Board policy to encourage the voluntary settle- ment of labor disputes. The Board, in furtherance of this objective, may delay issuance of an order when a voluntary settlement appears likely. When no exceptions are filed as provided by the Board's Rules and Regulations,' and a respondent complies with the Intermediate Report, the case is normally closed. The Board may, however, if it deems it necessary to effectuate the policies of the Act, affirmatively adopt the Intermediate Report as its decision.' Where, as here, how- ever, parties have not filed exceptions because of pending settlement negotiations but such negotiations have not resulted in a settlement satisfactory to all the parties, there is nothing in the Act, or in the Rules and Regulations, to prevent the Board in a proper case from granting a motion to reopen a proceeding in order to allow the parties to file exceptions. There is, moreover, no doubt that the Board has the power at any time prior to the filing of a record in a court, upon reasonable notice and in such manner as it deems proper, to modify any finding or order made by it.' Under all the circumstances, there- fore, we find no merit in the Respondent's contention that the Board lacks power to take any action other than to adopt the Intermediate Report and Recommended Order as its Decision and Order. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,5 the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the following additions and modifications. 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (5) and (1) of the Act by, inter alia, failing and refusing to supply wage data requested by the Union, and that an economic strike of the Respondent's employees, which began on Janu- ary 23, 1962, was prolonged on and after January 26, 1962, by the Respondent's unfair labor practices. 2 Rules and Regulations of the National Labor Relations Board, Series 8, as amended, Section 102.46. 5 Statements of Procedure, Series 8, as amended , Section 101.12(c). 4 National Labor Relations Act, Section 10(d) ; Rules and Regulations of the Na- tional Labor Relations Board, Series 8, as amended, Section 120 49. 5 We hereby correct the inadvertent error in the first paragraph of the Intermediate Report, which refers to February 9, 1962, rather than January 19, 1962, as the date on which the complaint alleges that the Respondent first refused to bargain in good faith with the Union. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 26, 3 days after the strike began, the Union, which had previously made oral requests for this wage data, submitted a written request, but the Respondent's attorney told the Union that he did not know whether the request would be honored because the strike might have changed the situation, and that he would advise his clients "what to give . . . and what not to give . . . if anything at all." That the Respondent had no intention on that date to furnish this information to the Union is indicated not only by its equivocation on that date but also by its flat refusals on February 9 and thereafter, for equally invalid reasons, to supply the wage data to which the Union was entitled. Accordingly, we find that the strike, which began as an economic strike, was prolonged by the Respondent's refusal to bar- gain, in violation of Section 8(a) (5) and (1) of the Act, on and after January 26, 1962, and was thereby converted into an unfair labor practice strike. 2. Although the Trial Examiner found that the economic strike which began on January 23, 1962, was prolonged on and after Janu- ary 26 by the Respondent's unfair labor practices, he failed to recom- mend the usual remedial provisions for the reinstatement of unfair labor practice strikers, upon application. The General Counsel has excepted to his failure to recommend such a remedy, and we find merit in this exception. We shall, therefore, modify the section of the Inter- mediate Report entitled "The Remedy" to provide that the Respond- ent shall upon application offer all employees on strike on or after 'January 26, 1962, reinstatement to their former or substantially equivalent employment, without loss of seniority or other rights and privileges, discharging, if necessary, any replacements hired on or after January 26, 1962, the date on which the strike became an unfair labor practice strike. The Respondent shall make these employees whole for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from 5 days after the date on which he ap- plied for reinstatement to the date of the Respondent's offer of rein- statement, less his net earnings, if any, during such period, with interest thereon at 6 percent per annum in accordance with the Board's usual practice.6 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following additions and modifications : (1) Paragraphs 2(d) and (e) shall be renumbered 2. "(f)" and "(g)" and the following shall be inserted : 6 F W. Woolworth Company, 90 NLRB 289 ; Isis Plumbing & Heating Co., 138 NLRB 716. COMFORT SPRINGS CORPORATION 909 (d) Upon application, offer immediate and full reinstatement, to their former or substantially equivalent positions , without prej- udice to their seniority or other rights and privileges , to all em- ployees on strike on or after January 26, 1962, discharging, if necessary, any replacements hired on or after January 26, 1962, the date on which the strike became an unfair labor practice strike. (e) Make whole the said employees , in the manner set forth in the section of the Intermediate Report entitled "The Remedy" as modified herein. (2) Add the following paragraph to the notice contained in the Appendix : Wn WILL , upon application, offer immediate and full reinstate- ment to their former or substantially equivalent positions, with- out loss of seniority or other rights and privileges , to all employees on strike on or after January 26 , 1962, discharging , if necessary, all replacements hired on or after January 26 , 1962, the date on which the strike became an unfair labor practice strike, and will make such applicants whole for any loss of pay suffered by reason of our refusal , if any, to reinstate them within 5 days after application. (3) Add the following immediately above the Employer's signature in the notice : All our employees are free to become, remain , or refrain from becoming or remaining , members of the above -named, or any other labor organization , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 ( a) (3) of the Act, as amended. (4) Add the following paragraph immediately below the signature line of the notice : NoTE.-We will notify the above-described employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in the present case was issued on March 30 , 1962, upon charges `filed by Upholsterers' International Union of North America , AFL-CIO (herein called the Union ) on February 6, 1962, and served upon the Respondent , Comfort Springs Corporation on February 8, 1962. It alleges in substance that the Respondent committed unfair labor practices affecting commerce within the meaning of Section 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act as amended, 29 U.S.C., Sec. 151, 73 Stat. 519, and that the Respondent's unfair labor practices prolonged a strike of the Respondent's employees which commenced on or about January 23, 1962. More particularly, the complaint alleges that, since Febru- ary 9, 1962, the Respondent has failed and refused to bargain collectively in good faith with the Union as the exclusive bargaining representative of an appropriate unit of the Respondent's employes and has interfered with, restrained, and coerced the employees in the exercise of their rights guaranteed by the Act by; (a) refusing to furnish the Union with data requested by the Union and relating to wages, hours, working conditions, and related matters; (b) offering its employees who were on strike benefits if they returned to work and abandoned the Union; and (c) unilaterally changing existing wage rates and other terms and conditions of employment. In its answer to the complaint, the Respondent admits that the Union was at all material times the exclusive bargaining representative of an appropriate unit of the Respond- ent's employees, but it denies that it committed the unfair labor practices charged in the complaint. Pursuant to notice, a hearing was held at Baltimore, Maryland, on May 16 and 17, 1962, before Trial Examiner William F. Scharnikow. The General Counsel, the Respondent, and the Union appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the conclusion of the hearing, I heard oral argument by the Respond- ent's counsel. The General Counsel and the Union waived oral argument. Since the close of the hearing, I have received a brief from the General Counsel. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Maryland corporation with its principal office and place of business in Baltimore, Maryland, is engaged in the manufacture of bed springs. In conducting its business at its Baltimore plant during the 12 months preceding the issuance of the complaint, the Respondent received shipments in excess of $50,000 directly from points outside the State of Maryland and also shipped products of a value in excess of $50,000 directly to points outside the State of Maryland. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent concedes in its answer, and I find, that Upholsterers' International Union of North America, AFL-CIO, is a labor organiza- tion within the meaning of the Act and that, under Section 9(a) and (b) of the Act, it has been at all times since June 3, 1955, the exclusive bargaining representative of all employees of the Respondent in an appropriate bargaining unit consisting of all production and maintenance employees employed at its Baltimore, Maryland, plant, including truckdrivers and warehousemen but excluding watchmen, clerical em- ployees, and supervisors as defined in the Act. III. THE UNFAIR LABOR PRACTICES A. The facts Following certification by the Board as exclusive bargaining representative of the Respondent's employees in the above-described appropriate unit on June 13, 1955, the Union entered into several, successive contracts with the Respondent, the last of which was executed on January 16, 1957, and expired on January 16, 1962. Ap- proximately 95 percent of the 315 employees in the unit were piece-rate workers, whose rates, though posted from time to time on the plant bulletin board, were not set forth in the contract. The only language respecting the regular compensation of these employees which appeared in the 1957 contract, provided for wage increases for the various classes of piece-rate workers in terms of "four per-cent (4%) per hour" and 5 and 10 cents "per hour" and stated that, at the Respondent's option, these increases might "either be incorporated in the piece-rate, or ... added to the piece-rate earnings of the employees at the end of each week." In addition, the 1957 contract required the Respondent's computation of the average daily and hourly earnings of each of the piece-rate employees as the basis of his vacation and holiday pay. For it provided that "vacation pay for each day shall be equal to .38% of the straight time earnings of the employee during the 12 months preceding April 1st," and that COMPORT SPRINGS CORPORATION 911 the employee's holiday pay should be computed on the basis of his "straight time average hourly earnings ... for the calendar quarter immediately preceding." On November 6 and 7, 1961, the Union requested the Respondent to negotiate modifications of the terms of the 1957 contract which was about to expire. Negotia- tions began on November 16. For the purposes of the present case , only the nego- tiations with respect to the wage issue need be considered. In a contract proposal submitted to the Respondent on or about December 18, 1961, the Union requested "a wage increase of 10 cents an hour with a $1.40 minimum an hour for all employees ." In a counterproposal submitted piecemeal on December 20 and 21 , 1961 , and January 5, 1962, the Respondent proposed new piecework rates for all its operations, without indicating what the current piecework rate for each operation was. It explained to the Union's negotiating committee, however, that the proposed rates represented an increase for the employees in certain specifically named departments and a decrease for the employees in the other departments; that the proposed decreases would effect adjustments of "the rates for certain jobs which have been way out of line"; that under its proposal , two out of three employees would receive raises; and that this was all the Respondent could afford. During a bargaining meeting on January 19, 1962, the parties discussed these and several alternative wage proposals. The Respondent sought to justify its original proposal to decrease some of the rates on the ground that they had become "loose," i.e., that a recent change to a new plant layout had enabled these particular employees to perform their jobs more quickly and to earn more than they had been earning. As an alternative to its original proposal , the Respondent then proposed a 5-year agree- ment with no wage increase in the first year , an increase of 2 percent in each of the second and third years, and a wage reopener provision in the fourth and fifth years. The Union countered with a proposal of a first-year increase of 10 cents an hour for employees earning less than $1.60 an hour and 5 cents for the other employees, and second and third year increases of 7 cents an hour for all employees. The parties were unable to reach an agreement on the wage issue on January 19 and a great part of the meeting was devoted to discussion of a request orally made by the Union, that, for the purpose of evaluating the Respondent 's specific piece rate and percentile proposals and formulating its own proposals based on an increase in hourly yield, the Respondent furnish the Union with ( 1) a list of the average hourly earnings of each of the employees on a quarterly basis; (2) their vacation pay as determined by the Respondent under the expiring contract on the basis of straight time earnings; (3) the direct labor cost as a percentage of unit production costs; and (4) the standards and fatigue factors used by the Respondent to establish the piece rates. To this request, the Respondent replied that , although this information would be furnished, it was ' not "readily available" and it would take time to compile it on a quarterly basis. Whereupon the Union told the Respondent 's negotiators that, in lieu of quarterly average hourly earnings, it would accept the Respondent's last computations of holiday and vacation pay for each employee under the expiring contract. On January 23, 1962, and before the parties held their next negotiating meeting, the Respondent's employees went on strike to support the Union 's bargaining posi- tion and were still on strike at the time of the hearing. At the next bargaining meeting of the parties on January 26, 1962, the Union presented a letter repeating the request for information which it had orally made on January 19. The Respondent's attorney, Jacob Blum, appearing for the first time in the negotiations, said that he did not know whether the request would be honored because "a strike had occurred in the meantime which may have changed the situa- tion somewhat and he was going to take [the request] under advisement and .. . would advise his clients what to give . . . [the Union ] and what not to give .. . [the Union], if anything at all." At the suggestion of James Doherty, the Union 's attorney, he and Blum had a sep- arate conversation following the meeting on January 26 . During this conversation Doherty suggested the possibility of a settlement of the strike for a 5-cent -an-hour increase for employees making less than $ 1.60 an hour and Blum suggested a 5-cent increase only for employees making less than $ 1.40 an hour. During this conversa- tion, Blum received a telephone call. He then told Doherty he had been informed of a picket-line assault on a truckdriver , but that , since it appeared to him that they might be able to settle the strike, the Respondent would ignore the incident, and he would consult his clients about the possibility of settlement . But later in the same day, Blum told Doherty over the telephone that a settlement was impossible "if there was going to be any cost to the Company," and proposed that the employees return to work "under the existing contract , and that the Respondent would then ad- just [piece rates ] subject to the Union's right to challenge any adjustments under the grievance and arbitration procedure ." Doherty rejected this suggestion , both at 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time it was thus made by Blum on January 26 and when it was again made by Blum to him in another conversation they had on February 1. On February 9 and 16, the negotiators for the parties, including the two attorneys, held further meetings. At each of these meetings the Union pressed its request for information concerning the Respondent's piece rates and the average hourly yields to the employees. But Attorney Blum rejected the request, stating that the information sought was not relevant. Then, at a negotiating meeting on February 20, the Respondent submitted a new list of proposed piece rates which it told the union negotiators it intended to mail that day to the employees, including the strikers. According to this proposal, some of the rates were to be increased and others were to be decreased. In the cases of the rates which were to be increased, the Respondent gave the Union the existing rate, the proposed increased rate, and the percentage of increase which varied from 3 to 10 percent. In the cases of the rates to be decreased , the Respondent informed the Union only of the proposed new rate and gave examples of the effect which the decrease would have upon the amounts of the weekly earnings of some of the employees affected. In reply, the Union's negotiators said at the meeting on February 20 that they could not consider the Respondent's proposal until they had received the information re- quested by them and that, in any event, they could not consider any proposal of a wage reduction. They also asked the Respondent not to mail the proposed rates to the employees. Attorney Blum thereupon told the union negotiators that his client had overruled him and that the Respondent would supply the information sought by the Union . In the discussion which followed, it was agreed that ( 1) the Respondent would not mail its piece -rate proposal to the employees ; (2) one of the Union's representatives would visit Attorney Blum's office and pick up the information requested by the Union; (3) if quarterly average hourly earning figures were not avail- able, the Union would accept the last vacation pay computations made by the Respondent for each of the employees under the expired contract; and (4) another bargaining meeting would be held on February 22. The parties did meet again on February 22 but the information had not been supplied by the Respondent . Attorney Blum said that because of picket -line incidents the Respondent had decided not to give the Union the information it wanted although Blum had it in his office. The Respondent also told the Union that it had already mailed to the employees the new piece-work rates which it had proposed to the Union at the meeting on February 20 and that these new rates would go into effect on February 26. On the same day, February 22, the Respondent had mailed a list of these rates to all its employees , including the strikers, with an announcement that the rates were to become effective on February 26. In a letter which accompanied the list, the Respondent informed the employees that it had already offered these rates to the Union, and urged them to disregard as "meaningless ," any threats which might have been made by union employees that the Union would cause them to lose their jobs if they returned to work. The letter further stated: As you know, we have been hiring more and more people each week and train- ing them successfully to do the jobs which you formerly did. We have been keeping this hiring schedule to a minimum in order to hold as many jobs open as possible for our old employees. Right now, we have approved applications for every job in the plant and we can hold yours open no longer. By Thursday of this week, we will beging filling every job. If you wish to return to work, now is the time to do it. Only your presence at your usual position will hold your job open for you and prevent a new person from replacing you, unless your job has already been assigned to someone else. The rates and wages on the following pages are being made effective as of Monday, February 26, 1962, for all our plant employees that are now working and for those whose jobs are still open. Following February 22, and up to the time of the hearing, the Respondent's and the Union's negotiators met on a number of occasions. Although the Union repeated its request for the information it had sought since January 19, 1962, the Respondent refused to supply it. In the beginning of May 1962, Attorney Blum asked Attorney Doherty what the Union would take to settle the strike and Doherty said a 5-cent-per-hour increase for all employees would be acceptable. The Respondent thereupon submitted a mimeographed list and explanation of new rates which it proposed for each of its op- erations. The explanation stated that these proposed rates were intended to provide "an increase in pay amounting to approximately $.05 per hour" for all piece-rate COMFORT SPRINGS CORPORATION 913 employees except those whose rates the Respondent had previously attempted to decrease. Referring to these latter rates as "Red Circle Rates," the Respondent proposed neither to increase nor decrease them but to leave them at their prestrike levels. With this explanation, the Respondent listed the proposed rates for each of its operations, with a notation of the percentage of increase in all but the "Red Circle Rates." The Union rejected this proposal and has continued in its insistence that the Respondent provide the wage information requested by the Union on January 19. B. Conclusions Upon the foregoing undisputed facts in this case, it is clear that the Respondent has refused, and has persisted in its refusal, to furnish the Union with information which the Respondent possessed and which the Union needed in order to bargain intelligently with the Respondent on the wage issue. In negotiating with the Re- spondent, the Union was naturally and properly concerned, not simply with the amount or percentage by which the individual piecework rates might be increased or decreased, but primarily with the more important ultimate effect which any change in rates would have upon the employees' hourly or weekly earnings in terms of dollars and cents. But its proposals of flat hourly increases were consistently met by the Respondent's counterproposals of changes in the piecework rates without any indication of the effect of these changes upon the employees' overall earnings. Under the circumstances, the Union needed the information it requested concerning average hourly earnings, the vacation and holiday pay of each employee as computed by the Respondent on the basis of average straight time earnings, and also the standards and fatigue factors used by the Respondent in determining existing prework rates. For only with this clearly relevant information at hand could the Union have intel- ligently evaluated the Respondent's proposals and formulated reasonable modifica- tions of its own proposals. The Union was therefore entitled to this information and the Respondent, in observance of its statutory obligation to bargain in good faith, was required to furnish the information. Accordingly, I conclude that, by failing and refusing to supply the information requested by the Union on and after Janu- ary 19, 1962, the Respondent refused to bargain collectively with the Umon as the exclusive bargaining representative of its employees and thereby committed an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149; N.L.R.B. v. F. W. Woolworth Co., 352 U.S. 938; N.L.R.B. v. Whitin Machine Works, 217 F. 2d 593, enfg. 108 NLRB 1537, cert. denied 349 U.S. 905. It also appears from the facts found, that the Respondent further violated both Section 8 (a) (5) and Section 8(a) (1) of the Act by unilaterally putting new piecework rates into effect on February 26, 1962. At that time, the Respondent and the Union were still bargaining on the wage issue and, as I have already found, the Union was entitled to, but had not received, the basic wage information which it had requested from the Respondent. Despite the parties' failure to reach an agreement, therefore, the bargaining process contemplated by the Act had not been completed, there was no impasse in bargaining, and the Respondent was not relieved of its obligation to continue bargaining. Accordingly, the Respondent was not free to take unilateral action in instituting new wage rates and its action in doing so, constituted both a refusal to bargain with the Union in violation of Section 8(a) (5) of the Act, and an interference with the bargaining rights of its employees in violation of Section 8(a) (1). N.L.R.B. v. Benne Katz, etc., d/bla Williamsburg Steel Products Co., 369 U.S. 736. By mailing the letter of February 20 to all of its employees, including the strikers, the Respondent also unlawfully solicited them to abandon the strike and the Union as their representative, and thus interfered with, restrained, and coerced the em- ployees' organizational activities in violation of Section 8(a)(1) of the Act. In this letter, the Respondent announced the new piecework rates which were to become effective on February 26, informed the employees in effect that the Union had been unsuccessful in bargaining for better rates, warned them that, because they were being replaced in their jobs, their jobs might not thereafter be available, and invited them to return to work. In thus soliciting the strikers' return to work and discouraging reliance by the employees upon the bargaining efforts of the Union's representatives, the Respondent attempted to take full advantage of its illegal refusal to bargain with the Union, and interfered with the employees' exercise of their bargaining rights in violation of Section 8 (a)( I) of the Act. Finally, it appears clear from the evidence, and I also conclude, that the strike of the Respondent's employees, which began on January 23, 1962, in support of the Union's bargaining position, has been prolonged by the Respondent's unfair labor 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice in refusing to furnish the wage information repeatedly requested by the Union on and after January 19, 1962. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent set forth in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused and still refuses to bargain collectively with the Union as the bargaining representative of the Respondent's employees in an appropriate bargaining unit, by refusing to furnish the Union with information relating to the wages of the employees and by unilaterally instituting new wage rates on February 26, 1962. It will therefore be recommended that, upon the Union's rquest, (1) the Respondent bargain collectively with the Union as the exclusive representative of the employees in the appropriate bargaining unit; (2) furnish the Union with the wage information previously requested by the Union and also with such other relevant information bearing upon the bargaining issues which the Union may hereinafter request; and (3) rescind the wage rates instituted by it on February 26, 1962. It will also be recommended that, if understandings are reached by the Respondent and the Union during the course of their collective bar- gaining, the Respondent embody such understandings in signed agreements. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW (1) The Respondent, Comfort Springs Corporation, is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. (2) Upholsterers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. (3) All production and maintenance employees employed at the Respondent's Baltimore, Maryland, plant, including truckdrivers and warehousemen but excluding watchmen, clerical employees, and 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. (4) At all times material to the present case, the Union was and now is the representative of a majority of the Respondent's employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. (5) By refusing, on and since January 26, 1962, to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. (6) By soliciting the return of strikers in a letter announcing its unilateral insti- tution of new wage rates without first bargaining upon the wage issue with the Union, the Respondent further interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby committed unfair labor practices within the meaning of Section 8 (a) (1) of the Act. (7) The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. (8) By engaging in the unfair labor practices described in paragraph 5, above, on and since January 26, 1962, the Respondent has prolonged the strike of its em- ployees in support of the Union's bargaining efforts. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend that the Respondent, Comfort Springs Corporation, its officers, agents, successors, and assigns, shall: COMFORT SPRINGS CORPORATION 915 1. Cease and desist from: ,(a) Refusing to bargain collectively with Upholsterers' International Union of North America, AFL-CIO, as the exclusive representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) Soliciting the return to work of employees presently engaged in a strike supporting the Union's bargaining demands. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Upholsterers' International Union of North America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit and embody any understandings reached in signed contracts. (b) Upon request, furnish the said Union with data pertaining to wages paid to the employees in the appropriate unit and such other information as may be relevant to the bargaining issues. (c) Upon request of the above Union, rescind the wage rates instituted by the Respondent on February 26, 1962, and such other wage rates as may have since been unilaterally instituted by the Respondent. (d) Post at its place of business in Baltimore, Maryland, copies of the attached notice marked "Appendix."' Copies of the said notice to be furnished by the Regional Director for the Fifth Region shall, after being signed by Respondent's representative be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director of the Fifth Region in writing within 20 days from the date of the receipt of this Intermediate Report and Recommended Order what steps have been taken to comply therewith.2 ' In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Circuit Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." a In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively upon request with Upholsterers' International Union of North America, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms ar i con li- tions of employment, and, if agreements are reached, embody such agreements in signed contracts. The appropriate unit is: All production and maintenance employees employed at our Baltimore, Maryland, plant, including truckdrivers and warehousemen but excluding watchmen, clerical employees, and supervisors as defined in the Act. 717-6 72-64-vol 143-59 91.6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, furnish to Upholsterers' International Union of North America, AFL-CIO, information and data pertaining to the wages paid to the employees in the appropriate unit and such other information as may be relevant to collective bargaining. COMFORT SPRINGS CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. Plaza 2-8460, Extension 2104, if they have any question concerning this notice or compliance with its provisions. The Lawson Milk Company and George Bulick. Case No. 8-CA- 2933. July 30, 1963 DECISION AND ORDER On March 26, 1963, Trial Examiner Jerry B. Stone issued his In- termediate 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 attached Intermediate Report. He also found that the Respondent had not engaged in cer- tain other alleged unfair labor practices and recommended, dismissal of these allegations of the complaint. Thereafter, Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner with the following modifications and additions : The Trial Examiner found that the Respondent violated Section 8(a) (1) and we agree with this conclusion. We rely on the fact that the Respondent, by Personnel Manager Spaethe, interrogated em- ployee Bulick about his attitude toward unions when he was hired in May 1962, and warned him not to discuss unionism after he was employed. We also rely on the fact that Respondent, without assur- 1 The Trial Examiner 's findings are based In part upon his resolutions of conflicting testimony. We reject as insufficiently supported the Respondent 's exceptions thereto. On the record, we find no basis for concluding that the Trial Examiner 's credibility resolu- tions are clearly erroneous . See Standard Dry Wall Products, Inc., 91 NLRB 544, 545. 143 NLRB No. 100.