Iowa Industrial Hydraulics, Inc.

IOWA INDUSTRIAL HYDRAULICS 205 Iowa Industrial Hydraulics , Inc. and Robert Loudon and Kenneth Homuth, Individuals. Case 18-CA-2307 January 17,1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On July 26, 1967, Trial Examiner Milton Janus issued his Decision in the above-entitled proceed- ing, 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision and in answer to Respond- ent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified herein. The Trial Examiner found, and we agree, that the Respondent discriminatorily discharged employees Homuth, Yadon, Loudon, and Swendsen, in viola- tion of Section 8(a)(1) and (3) of the Act. I In section IV of his Decision, the Trial Examiner recom- mended, inter alia, that the Respondent not be required to offer reinstatement to the discrimina- torily discharged employees. This recommendation was not excepted to, and is adopted pro forma. We agree with the Trial Examiner that effectuation of the policies of the Act requires that the Respondent compensate the dischargees for the loss of earnings they suffered by reason of the discrimination against them. However, we find that there is insuffi- cient evidence upon which to select an appropriate formula for determining the extent of such loss. We therefore do not adopt the formula suggested by the Trial Examiner, and we shall leave this matter to be resolved at the compliance stage of these proceedings. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Iowa Industrial Hydraulics, Inc., Laurens, Iowa, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as herein modified. 1. Add to paragraph 2(a) of the Recommended Order the words "as modified by the Board's Deci- sion." 2. Delete from paragraph 2(c) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided ..." 1 As we agree with the Trial Examiner that these sales-engineers are not managerial employees, we do not reach the issue or pass upon the Trial Examiner's statement concerning the applicability of the Act to the union or other concerted activities of managerial employees TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MILTON JANUS, Trial Examiner: This case was heard at Pocahontas, Iowa, on March 15-17, 1967, pursuant to a complaint issued by the General Counsel of the Na- tional Labor Relations Board on January 13, 1967.1 The complaint, as made more specific by General Counsel's response mentioned in footnote 1, alleged in substance that Respondent had violated Section 8(a)(1) and (3) by discharging its sales-engineers, Donald Yadon, Kenneth Homuth, Robert Loudon, and Charles Swendsen because they had acted concertedly in proposing a written em- ployment contract. The Respondent's answer denied the commission of any unfair labor practices. After the hear- ing, the General Counsel and Respondent filed briefs which have been fully considered. Upon the entire record, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent, an Iowa corporation, has its principal of- fice at Laurens, and a plant at Pocahontas, both in Iowa. It is engaged in the design, manufacture, and sale of hydraulic cylinders and related products. During 1966 it shipped from its plant products valued in excess of $1 million to points outside the State of Iowa. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. 1 On February 2, 1967, Respondent filed motions to dismiss the com- plaint, to strike certain paragraphs thereof, or for a more specific state- ment as to the grounds which allegedly prompted the discharges here These motions, and the General Counsel's opposition, were referred to Trial Examiner Charles W Schneider who, on February 24, directed the General Counsel to make paragraph 6 of the complaint more specific and denied the other relief sought in the motions The General Counsel com- plied with Trial Examiner Schneider's order by filing a response on March 3. On the first day of the hearing, Respondent expressed the position that the response still left paragraph 6 insufficiently specific. After examining the various documents, I ruled that the response was adequate. 169 NLRB No. 27 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES modifications. Both were hired with the same understand- ing as to compensation as the other two sales-en- gineers-5 percent commission on all sales made to their accounts, out of which they were to pay their own travel expenses. Loudon was guaranteed a minimum of $7,000 per year, and in his first year he barely earned his guaran- teed salary from his commissions . In 1965 also, his com- missions did not exceed his guarantee , and in addition, the Company did not charge off his expenses against his earnings. His earnings improved in the first quarter of 1966, before his termination, amounting to about $3,200. Swendsen did better since he was selling a familiar, long- established line through existing distribution channels. In 1964 he earned $12,000, and in 1965 , $ 19,000 in commis- sions. The Company was having difficulty in obtaining the ad- ditional capital it needed for expansion, while it also failed to keep abreast in such supporting functions as quality control , traffic, purchasing , scheduling, and production coordination. It also apparently suffered from the fact that a good part of its production came from Mefferd In- dustries which furnished the labor on material supplied by the Company. Since Mefferd was independently owned and operated, Mefferd's production problems were ag- gravated by the inability of the Company to maintain a sufficient inventory or to ensure that all components were available when needed. Consequently , the sales-en- gineers, besides designing cylinders and keeping contact with their accounts , had to assume other functions with respect to production which in long-established plants would be handled by clericals and executives having specific and well-defined responsibilities . The influx of new orders , generated principally by Homuth and Yadon, caused production to fall behind scheduled delivery dates. It had reached such a point in April 1965 that Yadon wanted to resign because he felt that the Company was unable to keep up properly with its orders. John Ek- stam, the president of the Company , prevailed on him to remain, urged him to continue bringing in new business, and promised improvements in management. Homuth and Yadon brought in much more business in the new industrial cylinder line than did Loudon and Swendsen, and much of it was self-continuing. That is, once a type of cylinder was designed for and approved by the customer, perhaps 80 percent of the sales and en- gineering work was completed. Thereafter, repeat orders could be expected for the same cylinder , with perhaps slight modifications in design, and the major responsibili- ty of the sales-engineer was to keep the customer satisfied by seeing to it that promised delivery dates were kept and proper workmanship was maintained . Thus, once an ac- count was obtained, and the first orders were successfully completed, further orders could be obtained without face- to-face contact with the customer . The long distance telephone call and mail were substituted for personal travel to established customers . Homuth derived 95 per- cent of his commissions from sales to just six accounts, and Yadon too, after the first year or so, was able to keep sales growing by satisfying his old customers . Thus, from the Company's point of view , the earnings of the sales-en- gineers increased as repeat orders came in, out of propor- tion to the sales and engineering efforts originally ex- pended. Also, the two principal officers, John and Fred Ekstam, were limited to annual salaries of $25,000 each , under the conditions of a loan obtained from the Small Business Administration , while Homuth's and Yadon's earnings A. Issues and Contentions of the Parties The issues presented are (1 ) whether Respondent ter- minated its four sales-engineers because they wanted to bargain with it concerning their terms of employment, as the General Counsel contends , or because Respondent had previously decided to eliminate their positions as part of a general reorganization of its operations , as Respond- ent contends ; and (2) whether the sales-engineers, in any event, were managerial or supervisory employees and, for that reason , not entitled to the protection of the Act. The General Counsel contends that they were neither managerial nor supervisory , and the Respondent con- tends to the contrary. B. The Factual Background In the late 1950's, the Company's business consisted of the sale of small replacement cylinders for agricultural implements. It had these cylinders produced for it by Mefferd Industries, an independent company located at Laurens, Iowa, and distributed them through wholesalers who then sold them to retail dealers . Sometime in the early 1960's the Company undertook a program of diver- sification and expansion by going into the business of designing and selling large hydraulic cylinders for use in heavy mobile equipment such as cranes, shovels, and hoists. The cylinders continued to be produced by Mef- ferd Industries, but were now sold to equipment manufac- turers for whom they were specifically designed. The new venture required a direct contact with the purchaser of the cylinders, so that the design could be specifically tailored to his engineering needs. It therefore hired Kenneth Homuth who had a background in that field as its first sales -engineer. In 1961 Homuth earned $6,600 from the Company and in 1962, $8,300. In 1963 his compensation was derived solely from a commission of 5 percent of his sales, and amounted to $18,000. For the first 6 months of 1964, Homuth was placed on a sa- lary basis of $17,000 per year for which he acted as the Company's chief engineer. He then returned to his former position as a sales -engineer, compensated solely on a 5 percent commission basis , and that year his total earnings were $24,000. In 1965 he earned $46,000 in commis- sions. Late in 1963 the Company hired Donald Yadon, an ex- perienced mechanical engineer, as its second sales-en- gineer. At his previous place of employment Yadon had earned $17,000, but he came to the Company with a promise of a guaranteed salary of only $7,000 per year, in the expectation that he could do much better on a com- mission basis. His expectations were soon fulfilled. In 1964 he earned in commissions about $8 ,000, and in 1965, over $20,000. As the Company's sales increased through the efforts of Homuth and Yadon, the need for more production facilities became urgent, and in 1963 the Company began producing cylinders at a newly established plant in Pocahontas which it operated with its own employees. In 1964 two new sales-engineers were taken on, Loudon and Swendsen , who had neither the engineering nor sales ex- perience of Homuth and Yadon. Loudon was promoted from a draftsman's position , while Swendsen , who had no educational training in engineering , was assigned to sell the Company's old line of agricultural cylinders which were mainly in stock sizes , requiring few adaptations or IOWA INDUSTRIAL HYDRAULICS seemed to have no upward limit under the existing com- pensation arrangement. Perhaps understandably, the Ek- stams thought that the sales-engineers were taking too much money out of the Company, which they would have preferred to use in expanding plant facilities. There were discussions about having them use their compensation to buy stock in the Company which came to nothing because the officers suggested they buy preferred stock which the sales-engineers did not want. In December 1965 John Ekstam proposed to the sales- engineers that there be a ceiling on commissions, with nothing being paid on sales over $500,000. This would have limited the sales-engineers to a maximum of $25,000 per year. Understandably, they objected. Nevertheless, later that month, Ekstam personally told Homuth and Yadon that he intended to change the compensation ar- rangement so that the sales-engineers would be paid 5 percent on the first $500,000, but only 2 percent on everything above that, and that the cost of their long distance telephone calls would be charged to them as part of their sales expense. Yadon, for one, told Ekstam that the reduction of the rate of commissions constituted a retroactive pay cut, and that if Ekstam thought the telephone privilege was being abused, he should set a reasonable limit on calls above which the sales-engineers should bear the expense. Ekstam did nothing further publicly about the commissions or the telephone problem at that time. Up to then the sales-engineers had been paid their com- missions at the end of the month following the month in which the shipment was made. In January 1966 this was changed so that they were paid 2 weeks later, which meant that they were paid anywhere from 6 to 10 weeks after shipment of the order. Some of the sales-engineers told Ekstam that he was trying to run his company on their money, to which Ekstam took offense. He then an- nounced that thereafter they would be paid weekly, in the week in which the customer paid his bill. The change was put into effect, and if the customer was delinquent, the sales-engineer had to wait for his money; if the customer paid within 10 days, and took the 1 percent discount for prompt payment, the commission was correspondingly reduced. On March 21, 1966, the Company issued a memoran- dum to all office personnel, announcing that as of April 1, all long distance telephone calls would be placed on a credit card basis, so as to identify telephone costs for each department, and so as to "equalize those costs as in the case of Sales Engineers as against travel costs." (G.C. Exh. 2.) Each sales-engineer was given his own credit card telephone number which he would be required to use on all long distance calls. The sales-engineers were concerned over what they re- garded as another inroad on the established method of compensation, and over the fact that they were to be charged for calls relating to scheduling, deliveries, credits, and other nonsale items. Since their credit card numbers could also be made available to other office per- sonnel, they feared that other departments might charge their own calls to their accounts. On March ^8 the four met together to discuss this new problem, and decided to draft a proposal for a written employment contract to be submitted to the Company. They met together a few more times, completed their draft proposal, and on Sunday, April 3, left signed copies on the desks of the two Ek- stams, together with a covering letter which read as fol- lows: 207 To: Iowa Industrial Hydraulics , Inc. Management and stockholders Gentlemen: Attached please find our proposal for an employment contract between the sales engineers and the com- pany. We are hopeful that this agreement will be ac- ceptable to the management and stockholders, and we will be looking forward to discussing this at our 7:30 meeting Tuesday evening, April 5th. In the event that a written agreement, which is ac- ceptable to the majority of the sales engineers, can not be arrived at through the joint negotiations between ourselves and the Iowa Industrial Hydrau- lics Inc. Management, then we wish to go on record, that it is our intent to petition the National Labor Relations Board for an election to be held among the sales engineers for union representation by a na- tionally known labor union with engineering representation. We are hopeful that this type action will not be required, and that we can discuss and resolve a suita- ble agreement among ourselves. [Signatures] The proposal itself was addressed to the board of directors of the Company, and consists of 4 numbered paragraphs, setting out their understanding of the verbal agreement on commission sales under which they had been operating, and I 1 additional numbered paragraphs, stating in much fuller detail a compensation agreement, based on the previous arrangement , with some changes. Thus, the proposal sought to continue the flat 5 percent commission on all sales (even above $500,000 per year), to be paid weekly as customers paid their accounts and from which were to be deducted only (1) credits to customers as mutually agreed upon, (2) their travel ex- penses, and (3) telephone calls placed by a sales-engineer pertaining specifically to sales or engineering. On Monday, April 4, John Ekstam met with the sales- engineers in a regularly scheduled meeting relating to production matters, at which no one mentioned the proposal. Ekstam said nothing then about any contem- plated reorganization of their department . The next day, Ekstam called them together to tell them he would have to meet with the board of directors on their proposal. Again, Ekstam did not mention reorganization. The fol- lowing Monday he asked them to attend a meeting of the board the following evening. They did so, and were told, after the board had met without them , that the board had decided to terminate all sales-engineer positions; that they would be paid commissions on all firm orders on hand as of that; that Fred Ekstam was preparing an or- ganization chart, and when it was completed there would possibly be jobs open for which they could apply. There was no discussion of the proposed employment and com- pensation agreement. The next day Swendsen asked John Ekstam for a job. He was immediately hired at a salary of $100 per week, which was raised in July to an annual salary of $8,500. He was given the title of project engineer, and has done no sales work thereafter, and very little, if any , work such as he had formerly done, in expediting orders for his customers. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In 1966 Swendsen earned from April 15 on approxi- mately $5,250 in salary, and almost $18,000 in commis- sions based on orders from his accounts which were on hand by April 12. On April 15 John Ekstam spoke to Loudon, telling him he could apply for a job after the reorganization of the Company was completed. He was never told thereafter that the reorganization had been completed, and he never inquired. However, 8 months later, in January 1967, he was offered a job as a project engineer at $8,000 per year. He did not accept it. His commissions in 1966, based on orders from his accounts on hand by April 12, totalled a little over $7,000, out of which his travel expenses, in- curred before his termination, were deducted. Neither Homuth nor Yadon inquired about employ- ment on a salary or other basis, nor were they ever asked to apply. John Ekstam testified that he had expected that none of the sales-engineers would be interested in staying with the Company on a salary basis, and in view of the $8,500 salary eventually offered to Swendsen, it must have been clear to Ekstam that Homuth and Yadon would not be interested in a salary at or around that level. Up to April 15, 1966, Yadon had already received $12,500, and Homuth, about $20,000. For the entire year 1966, for orders on hand by April 12, 1966, Yadon received $38,000, and Homuth almost $42,000. There is every reason to believe, from the Company's own forecast of its sales prospects for 1967 and thereafter, that the commissions earned by Homuth and Yadon would have continued to increase in the succeeding years. C. The Contemplated Reorganization of the Sales-Engineering Department That the Company was going through a difficult period of adjustment in gearing both production and manage- ment to the rapid growth of sales is clear from the testimony of the Ekstams and the sales-engineers, and from the minutes of the directors' meetings and attached reports. Overall, sales had increased from about $1.3 mil- lion in 1964 to about $2.5 million in 1965. Sales of $4 mil- lion were forecast for 1966, and for $5 million in 1967. The Company was thin in experienced management per- sonnel. It had hired a new production manager for the Pocahontas plant in January 1966, thereby relieving Fred Ekstam of that responsibility. It had one person in purchasing, one in production control, and very few peo- ple specifically handling the problems involved in ensur- ing that material was on hand when needed, in quality control, in traffic, and in cost accounting. Profits were not growing at a rate commensurate with sales, and that fact alone was causing difficulty in securing needed capital. There was much to be done if the Company wanted to increase its profitability, and the Ekstams were aware of it. In the fall of 1965, the Company consulted a manage- ment consultant who, according to John Ekstam, recom- mended changes in their accounting procedures, and ad- vised him that such support functions as traffic, repair, and shipping were wholly inadequate. On the other hand, the management consultant thought that the sales-en- gineering setup was working well and that it should be left alone,if everything else was in balance. The Company's independent public accountant who testified on its behalf took quite a different view. His study of the Company's financial condition had con- vinced him that what was wrong was the large amounts of money being paid out to the sales-engineers. His opinion was undoubtedly honestly arrived at, although his empha- sis on how much they were being paid for selling and his disregard of the fact that it was their design and engineer- ing abilities which had caused sales to skyrocket, left me with the impression that his view on the Company's financial status was somewhat one-sided. Thus, he pointed out in his testimony that the percent- age of gross profits had gone down in 1965 over 1964, without stating what the more meaningful net profit figures were. He also said he regarded as significant the fact that the salaries of the sales-engineers were $41,000 more in 1965 than in 1964, but against this must be laid the fact that sales in 1965 were up by a third over the preceding year, and that operating expenses as a percent- age of sales were up by only one-tenth of one percent in 1965 over 1964. These selective, partial bits of information as to how poorly the Company was doing financially were offered to prove that the Ekstams had been thinking about reor- ganizing the sales-engineering department even before April 3, 1966, when the proposal for a written agreement was first put before them. Stated so vaguely, the proposi- tion can neither be wholly true nor wholly false. It seems fair to say that the Ekstams were pleased with what the sales-engineers were bringing in to the Company, and dis- pleased about what they were taking out of it. They did not want to kill the geese laying the golden eggs, they only wanted them laid at a lower unit cost. My belief that it was the reorganization of the produc- tion and support functions of the plant which was upper- most in the minds of the Ekstams before April 1966 is borne out by the minutes of the board of directors' meetings held in the first part of that year. Two regular meetings were held before April 3, when the sales en- gineers first proposed their employment and two special meetings were held thereafte . The minutes of these four meetings are in evidence as eneral Coun- sel's Exhibits 6 through 9. At the directors' meeting of January 19 1966, John Ekstam reported that the commission bass was being changed to the 5 and 2 percent basis already described above. Nothing about any further changes in compensa- tion, or in other terms of employment was reported or discussed, even in connection with the president's report that expansion of production at the Pocahontas plant would require $150,000 in additional capital. At the next directors' meeting, on March 4, 1966, Fred Ekstam, the secretary, reported that he was preparing a new organization chart which would help "to determine planning and policy for personnel as well as to determine areas which have to be developed and staffed if the firm is to continue and develop." The report is consonant with the testimony of the Ekstams at the hearing that the con- templated changes were aimed at improving management by hiring additional people for the support functions, which everyone recognized were quite inadequate. The language is hardly susceptible to an interpretation that the Company was then considering the dissolution of its sales-engineering department and the termination of all employees engaged in those functions. At the same March meeting, John Ekstam reported on sales costs in which he said that a comparison of the com- pensation paid to the individual sales-engineers, as com- pared with the compensation scales prepared by the American Management Association, was dispropor- tionately high. What the AMA scale related to is not dis- closed - whether of firms comparable in size or age, with IOWA INDUSTRIAL HYDRAULICS sales greater or less, or with individuals performing multi- ple functions similar to those of the sales-engineers. Ek- stam also referred to a loss of direction and control due to the system of straight commission compensation. The minutes then go on to say that "it was suggested that the matter be further reviewed ... and that corrective mea- sures be taken effective to the year 1967." It is pointless to speculate on what steps the Company might have taken during the remaining 9 months of 1966 as to the sales-engineers, if the situation had not been sud- denly changed by their proposal for a written contract. However, I see no indication from the minutes of the January and March meetings that the Ekstams were con- templating so radical a solution to the compensation problem of the sales-engineers, as the total abolition of the department and their individual terminations. The two special directors' meetings on April 6 and 12 reflect that the reorganization of the Company was now seen almost exclusively in terms of abolishing the sales- engineering department. Previously, the emphasis had been mainly on reorganizing the production and support functions of the plant and, as to the sales engineers, to do something about the high level of their compensation; the emphasis then shifts to the undesirability of any system of compensating the sales-engineers on a straight com- mission basis. One further piece of evidence bears on when the Ek- stams first began to consider the possibility of terminating the sales-engineers. Early in March 1966 Yadon had ap- plied to a savings and loan association for a home loan. As part of its credit check, the association sent a form to the Company for verification of Yadon's statement of his earnings. The verification form, signed by John Ekstam is in evidence as General Counsel's Exhibit 11. On it, Ek- stam wrote that Yadon's annual average commissions ranged from $20,000 to $45,000 per year, and to the question as to the probability of continued employment, Ekstams's answer was "Regarded Permanent." When Ekstam testified at the hearing, he did not claim that his answer to the verification form was in fact false. Thus, about a week after the directors' meeting of March 4, at which the consensus of the board was that the compensa- tion of the sales-engineers be further reviewed, "and that corrective measures be taken effective to the year 1967," Ekstam saw no inconsistency between the directors' ac- tion and his statement to the loan company that Yadon's employment was regarded as permanent. I conclude from the foregoing that the Ekstams and the directors were engaged in reorganizing the Company's operations before April 3, that their major concern was to aid production by improving the support functions of traffic, purchasing, quality control, inventory, and ac- counting, and that, as they then saw it, the problem of the sales-engineering department was excessive compensa- tion rather than separation of the design and sales func- tions. Finally, I see "no evidence, that before April 3, there was any consideration given to the possibility of a "reor- ganization" whose effect would be the immediate ter- mination of all four sales-engineers. I also find that the steps taken by the directors and the officers after April 3, 1966, leading to the termination of the sales-engineers on April 12, were due to the proposal of the sales-engineers for formalizing their compensation arrangement in a written agreement and not, as the Com- 209 pany argues, merely accelerated thereby. In the barest and simplest of terms, I conclude that the Company discharged the sales-engineers because they had the temerity to act concertedly in seeking to participate with it in setting their terms and conditions of employment. But even if I were to assume that the Company had contemplated before April 3 a split of the sales-engineer- ing department into its component design and sales work, and the assignment of other personnel to the support work which the sales-engineers were routinely perform- ing, I would still find a violation of the Act here. John Ek- stam admitted what was, in any event, obvious -that the "reorganization" of the department (a euphemism for its disappearance) was accelerated by the request of the sales-engineers to bargain with it. Ekstam recognized that the sudden discharge of the employees who alone had any experience in designing cylinders, and who alone had direct contact with all its major customers, was a risky undertaking. If he had in fact seriously considered before April 3 how to separate the design and sales functions, abolish the straight commission system, and assign the in- plant work of the sales-engineers to new personnel, it seems inconceivable that he would have done so with as little preparation as he showed on April 12. Except for the unexpected circumstance that Swendsen asked to be reemployed a day or two later, the Company would have had no one to take over the work on which its success, and even its existence, might depend. For some months after April 12 it had only Swendsen, relatively inex- perienced in designing industrial cylinders, to handle all the engineering work. Around July 1 it promoted Lynn Harris, whose job before April 12 consisted of parts stan- dardization and coordination of the quality control pro- gram, to the position of chief engineer, even though his educational background was limited to 2 years of preen- gineering training. It also transferred its purchasing agent, Nelson, to the newly established position of sales manager. It had to find new employees for purchasing, traffic, and coordination, etc., on short notice. It had, in other words, to put into effect a substantial reorganization of its executive and office staff without adequate prepara- tion or forethought, because its overriding concern was to rid itself immediately of anyone who dared undertake concerted action in protection of their interests. Ac- celeration, for discriminatory reasons, of an action al- ready decided on, for nondiscriminatory reasons, is in it- self a violation of the Act.2 D. The Sales Engineers as Managerial or Supervisory Employees It is the contention of the Company that the sales-en- gineers are not the type of employee for whom the Act's protective provisions were designed - that they were top level management people whose judgment and work not only affected but controlled the operations of the Com- pany and the work of other employees. Although the primary responsibility of all four sales-en- gineers was to design and sell cylinders, there were dif- ferences among them with respect to the responsibilities assumed and the manner in which they were carried out. As evidenced by their earnings alone, Homuth and Yadon, as the most successful, had greater scope for the exercise of responsibilities than did Swendsen and Lou- 2 Ox- Wall Products Mfg. Co., Inc., 135 NLRB 840, enfd. 310 F.2d 878 (C A 2). 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD don. Homuth and Yadon had the major accounts, they sold more and they accounted for more production, with all that that entailed. Swendsen derived most of his sales from wholesale distributors of the smaller, less com- plicated agricultural cylinders which had once been the mainstay of the Company, but was now relatively unim- portant. Loudon's commissions on sales were barely enough to earn his guaranteed compensation of $7,000 per year. In 1965, when the Company's sales were $2.5 million his sales of approximately $140,000 constituted just over 5 percent of the Company's total business. Thus, much of the Company's evidence and arguments as to the scope of the responsibilities and authority of the sales-engineers apply more closely and directly to Homuth and Yadon than to the others. All four sales-en- gineers exercised a technical or professional skill in the design of cylinders, and were unsupervised in that func- tion. In the performance of their engineering work, they exercised no managerial authority and their supervision, if any, was limited to direction over one draftsman and one secretary. With respect to their sales function, they exercised no managerial authority and again their super- visory control was limited to the secretary who took their dictation. Only in connection with their peripheral and subsidiary duties, imposed on or assumed by them, because there were not enough people sufficiently qualified or competent to carry them out, did the sales en- gineers exercise what may arguably be characterized as managerial or supervisory authority. Each of the support functions, such as pricing, purchasing, production scheduling, quality control, returns and credits, had em- ployees of the Company or of Mefferd Industries, who were primarily responsible for carrying out those as- signed duties, and each had a recognized supervisor. The sales-engineers assisted in those areas only as to their own accounts, and not on a companywide basis. Their activities in these areas were also sporadic rather than sustained. That is, they would be consulted on some occasions, and not on others. They would act in some situations on behalf of their own accounts, and yet feel no responsibility to coordinating their own financial interest with the overall interests of the Company. Day-to-day managerial responsibility was vested in the officers of the Company, and to the extent that the sales-engineers were sometimes invited to express an opinion or permitted to take action which affected such basic management responsibilities as the opening of new production facili- ties, accepting or rejecting certain accounts, hiring execu- tive personnel, these were exercised more as a matter of grace than of right. Within this context of imperfectly defined duties and responsibilities, the sales-engineers, and particularly Homuth and Yadon, did what they could to keep their customers satisfied, by seeing to it that the products they had ordered were delivered in accordance with specifica- tions and as close as possible to the scheduled delivery date. To do so, Homuth and Yadon spent 20 percent or more of their time handling customer complaints and try- 3 Mississippi Valley Barge Line Co., 151 NLRB 676. Cf. Better Mon- key Grip Company, 115 NLRB 1170, enfd. 243 F.2d 836 (C.A. 5), and Talladega Cotton Factory, Inc., 106 NLRB 295, enfd. 213 F.2d 208 (C.A. 5), for special circumstances, not present here, in which the discharge of a supervisor has been held to be a violation of Section 8(a)(1). 4 In Valley Forge Flag Company, 158 NLRB 1227, the Trial Examiner held the discharge of a managerial employee for giving testimony un- favorable to his employer in a Board proceeding to be a violation of Sec- ing- to get- them disposed of satisfactorily. They would go directly to the plant to check with the inspectors, the em- ployees handling returns and repairs, the shipping, scheduling, and purchasing departments and they would try to get someone to assume responsibility for seeing that components would be available when needed. They would push or cajole employees to bypass bottlenecks, and occasionally they would help assemble their own or- ders, when nothing else seemed to work. On another level, the sales-engineers dealt with the clerk handling price quotations. Once a drawing of a cylinder was completed, the clerk would estimate what the Company's costs in labor and materials would be, and would add on an established percentage for overhead and profit. This was the basis of the quotation sent to the customer. Sometimes, a sales-engineer, fearing that the price to be quoted would not be competitive and the order might be lost, might ask the clerk to refigure the cost, sug- gest ways of reducing it, or even suggest to John Ekstam that the percentage for overhead and profits be cut. On occasion, if a sales-engineer thought an order could be ob- tained even at a higher price than what the clerk had figured, he might suggest that something additional be tacked on for a greater profit. These were suggestions to Ekstam which he might accept or reject as he saw fit. No sales-engineer had the authority to vary on his own the quotations arrived at by the pricing clerk. When a customer returned a cylinder for repair or credit, the supervisor of that department would take ap- propriate action, if the defect was minor and obvious. If the cause of the breakdown was not immediately ap- parent, the inspection report would be referred to the ap- propriate sales-engineer who would then decide, based on his technical knowledge, whether the breakdown had been caused by a design failure, production failure, or customer misuse. The sales-engineer would then decide whether credit should be allowed. On at least one occa- sion, for policy reasons relating to retention of a customer's good will, John Ekstam had even granted a credit in the amount of $25,000 which, in the sales-en- gineer's judgment was unwarranted. If the sales-engineers were supervisors, they may not claim the protection of the Act against reprisal by their employer for engaging in concerted activities on their own behalf.3 If they were managerial employees but not supervisors, their exclusion from the coverage of the Act is not as clearly established under Board precedents as in the case of supervisors, but is nevertheless fairly inferrable from the policy of the Act that employees allied with manage- ment are to be treated differently from other employees.4 The Act does not define "managerial employee" and, to my knowledge, the Board has discussed the status of such employees only in representation or allied proceedings, in terms of inclusion or exclusion from the bargaining unit. Once the Board determines that an employee is managerial, he is excluded whether the unit sought is of- fice clerical, professional, technical or other. The under- tion 8(a)(1), but the Board dismissed the complaint on the ground that that had not been the operative reason for his discharge. The Trial Examiner in that case, applied to managerial employees the same protection ac- corded to a supervisor who is discharged because of giving testimony in a Board proceeding. By analogy, if the case should ever arise, a managerial employee might be protected against discrimination if it constituted an in- vasion of the self-organizational rights of rank-and-file employees. See the cases cited in footnote 3. IOWA INDUSTRIAL HYDRAULICS lying reason for their exclusion from any bargaining unit seems to be their identification with the interests of their employer which overrides the community of interest they may possess with other employees who perform work of a similar nature, but exercise less responsibility or discre- tion. Thus, because managerial employees, like super- visors, act on behalf of their employer, their own con- certed activities would not, in my opinion, be protected by Section 7. In Retail Clerks International Association, AFL-CIO v. N.L.R.B., 366 F.2d 642, 644 (C.A.D.C.), the court said: The Board has not developed clear standards for determining what is a managerial employee; there seem, however, to be two tests. The first is whether, even if they do not supervise other workers, their position with the employer presents a potential con- flict of interest between the employer and the wor- kers, e.g. employment interviewers who have authority in hiring ... This strand of the managerial employee test is often phrased in a more conclusory manner, i.e., that the employee is closely related to or aligned with the management; such a determina- tion, however, also seems to turn on the possibility of a conflict of interest arising .... The Board also excludes from the protection of the Act, as managerial employees, "those who formu- late, determine, and effectuate an employer's poli- cies," and those who have discretion in the per- formance of their jobs but not if the discretion must conform to an employer's established policy ... The rationale for this Board policy, though unarticulated, seems to be the reasonable belief that Congress in- tended to exclude from the protection of the Act those who comprised a part of "management" or were allied with it on the theory that they were the ones from whom the workers needed protection. The first strand of the test, a potential conflict of in- terest between the managerial employees and other em- ployees of the Company is not particularly relevant in the situation present here. The sales-engineers as a group had no authority to hire or to recommend hiring. Some in- stances were referred to at the hearing of a sales-engineer involved in the hiring process. John Ekstam had asked Yadon to recommend people for positions as shop foremen. Yadon knew some men then working for another employer who might be suitable. They were in- terviewed by Ekstam but despite Yadon's recommenda- tions that they be hired, they were not, because Ekstam thought there was no immediate need for them. Another time, Yadon suggested to Ekstam that a replacement for Fred Ekstam be hired as production manager at the Pocohontas plant. John Ekstam interviewed someone and related his background and qualifications to Yadon. Yadon told Ekstam that a person with that background should be suitable, but Ekstam never asked Yadon to talk to the applicant personally. Ekstam thereafter hired him. Homuthxeferred Ekstam to Yadon, as a qualified person for a sales-engineer's job, and Ekstam then hired him. Even assuming that these incidents indicate a responsible role for Homuth and Yadon in hiring, it must be noted that they were limited in Homuth's case, to recommend- ing the hiring of another sales-engineer, on the same or- ganizational level as himself, or in Yadon's recommenda- 5 Westinghouse Electric Corporation , 144 NLRB 1306 ; 113 NLRB 337 211 tions, to the hiring of supervisory personnel. Yadon's recommendation for shop foreman was not followed, and Yadon's suggestion that a new production manager be hired was a suggestion for improving production rather than a recommendation that a particular individual be hired. In any event, none of these incidents could create a possible conflict of interest between the sales-engineers and nonsupervisory employees. A second element for determining who is a managerial employee is the formulation and effectuation of an em- ployer's policies through the exercise of independent dis- cretion. I have pointed out above, with respect to the cen- tral core of their jobs, that is engineering and sales, that the four individuals involved here did important work which was regarded as essential to the Company's suc- cess (at least up to April 12, 1966) but which was only in- directly related to the basic aspects of management - where and when capital was to be invested, the choice of what was to be manufactured, the right to select customers and suppliers, and the establishment of pricing and credit policies. The sales-engineers were affected by the policies on these points as formulated and effectuated by the Ekstams, but in no realistic sense could they be said to have the power or authority to change them. When the interest of the sales-engineers ran parallel with the in- terest of the Company, most obviously in the expansion of sales, the opinions of the sales-engineers, or more par- ticularly of Homuth and Yadon, were listened to and taken into account. When their interests were opposed, the decisive voice was that of John Ekstam. That, of course, is to be expected. The Ekstams were the principal officers of the Company, and owed it an obligation to ar- rive independently at decisions which they considered in its best interest. But even in more limited areas of management policy, the sales-engineers were effectively circumscribed. The refusal of the Ekstams to adopt a general warranty policy for their cylinders is an example in point. Yadon had drafted a proposal for a general warranty policy because of pressure from some of his larger accounts. With Ek- stam's permission, it was applied to some of these ac- counts but was not adopted generally by the Company. In other areas, the sales-engineers used their technical knowledge, or their familiarity with their customers' present and future requirements, in a way that would af- fect scheduling, pricing, or allocation of costs. Since no one else in the plant had other information on these mat- ters, their recommendations were adopted. In other words, where the sales-engineers had specialized knowledge, their advice was sought and followed. Where, however, their recommendations ran counter to company policy, as determined by the Ekstams, they were over- ruled. In no area, other than that of engineering design, was there any advance assurance that a particular exer- cise of their discretion would prevail. It is not a difficult task to abstract from Board decisions dealing with the status of employees alleged to be managerial, holdings dealing with each particular facet of the sales-engineers' activities here. The exercise of professional or technical judgment does not convert an engineer into a managerial employee;5 an employee is not managerial merely because his work affects his em- ployer's costs or because he deals directly with customers and suppliers;6 because he acts as a liaison between 6 Ladish Company, 126 NLRB 555, 559. 350-212 0-70-15 212 PECISIONS OF NATIONAL LABOR RELATIONS BOARD customers and his own plant's production department;' or because he submits technical advice on pricing.I Respondent's argument that the sales -engineers were managerial employees is, however, broader gauged. It is, in essence, that because the sales-engineers were actively engaged in every facet of Respondent's business, they were in effect authorized to act responsibly and with inde- pendent judgment in their employer 's interest. Since the sales-engineers earned a commission on sales , it is true that they had a direct concern in the growth of the Com- pany which was not so immediately shared by employees on a salary basis. But merely because employees believe that what is good for them is also good for their employer, they are not invested with managerial authority, nor are they so invested because they are called on to perform many diverse functions rather than one particular job. It is rather the degree of responsibility and discretion in for- mulating and effectuating management policies which determines whether they are on the "management team" as managers of the enterprise or on it as part of the entire employee complement. The Board had said that "an em- ployee does not necessarily possess managerial status because he makes recommendations which may influence an employer's policy or business decisions," and that "the performance of duties under little supervision and in- volving the exercise of considerable discretion does not necessarily indicate managerial status."9 Reasonable men may honestly differ on the application of a general statement to a particular set of facts, and even more so when a judgment is required on what constitutes responsibility and discretion in the exercise of so im- palpable a function as the formulation and effectuation of management policies. I am, however , satisfied that the sales-engineers were highly skilled technical or profes- sional employees, filling in wherever needed for the benefit of the Company and of themselves, but whose judgment and discretion were limited both in the formula- tion of basic management policies and the effectuation of those policies in particular situations. Much of what has been said above as to the sales-en- gineers' lack of managerial authority also applies to their alleged supervisory authority. Because of their technical knowledge, the sales-engineers could authorize inspec- tors or production foremen to depart from the specifica- tions prescribed on purchase orders. Such variations were sought by production personnel to simplify the manufacturing process, but only an engineer would know whether the variation would be acceptable to the purchaser. The exercise of technical knowledge also un- derlay-the sales-engineers' advice to the repair and credit departments as to why a returned cylinder was defective and what credit should be granted therefor. As for production supervisors and personnel both at the Mefferd plant at Laurens and the Company's plant at Pocahontas, the sales-engineers requested, advised, and sought cooperation, rather than imposing direction as a matter of right. Cooperation between production person- nel and the engineers was normal , but when there was dis- agreement over the course to be followed, each side could and did appeal to one of the Ekstams for a final decision. The sales-engineers could not order additional personnel to be hired or overtime to be worked. They might point out how necessary it was if scheduled delivery dates were 7 Vulcanized Rubber and Plastics Company, Inc., 129 NLRB 1256, 1262; EljerCo., 108 NLRB 1417,1420. 8 Ladish Company, supra. to be met, but the direction to do so did not come from the sales-engineers. A draftsman rendered detailed drawings from the sketches prepared by the sales-engineers , which were then used in the production and assembly process. The draftsman's work was done according to standard draw- ing practices and company procedure, and there was little or no occasion for supervision by anyone as to the manner of making the drawings. The draftsman's normal incidents of employment, hiring, determination of wages, time off, etc., was set by John Ekstam and not by the sales-engineers. A secretary took dictation from the four sales-en- gineers as well as from other office personnel. Her condi- tions of employment were not set by the sales-engineers. I find that neither in their contacts with production per- sonnel nor with the draftsman or secretary, did the sales- engineers exercise the type of responsible direction and control which marks a supervisor. Finally, another contention of the Company as to why the sales-engineers are not entitled to the protection of the Act merits notice. It is that they are not the type of employee for whom the Act was designed-that they covered themselves with the mantle of the Act by using such magic words as "collective bargaining" and "union" merely to maintain their swollen earnings. There is no denying that Homuth and Yadon were well paid, and that under the old compensation system they would probably have earned even larger sums in 1966 and succeeding years if their bargaining demands had been met. But discussion over compensation for services is central to collective bargaining, and employees, no matter how well paid, are entitled to join together in mutual aid and protec- tion to conserve their interests. The Act, in its impartiali- ty, shows the same concern for the employee who earns $40,000 per year as for the employee who earns one- tenth as much. I find, therefore, based on the foregoing, that Homuth, Yadon, Loudon, and Swendsen were not supervisors or managerial employees, and that the Company discharged them on April 12, 1966, because they had sought to bar- gain collectively or to engage in other concerted activities for their mutual aid or protection. A discharge for engag- ing in such activities violates Section 8(a)(1) of the Act. The same activities also constituted the four sales-en- gineers as a labor organization within the meaning of Sec- tion 2(5) of the Act. Their discharge thus amounted to a discrimination in hire and tenure of employment which discouraged membership in a labor organization. As such, it was in violation of Section 8(a)(3) of the Act. However, the remedial provisions recommended below would be the same whether the. discharges be regarded solely as a violation of Section 8(a)(1), or as a violation of Section 8(a)(3) as well. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section II, above, occurring in connection with the Respondent's operations described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to 9 American Federation of Labor, and Congress of Industrial Organiza- tions, 120 NLRB 969,973. IOWA INDUSTRIAL HYDRAULICS 213 labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY The customary remedy for a discriminatory discharge is reinstatement to the position formerly held by the dis- criminatee, or to one which is substantially equivalent, together with compensation equal to the amount of money he would have earned from the date of discharge to the date of an offer of reinstatement, less his interim earnings. The same remedy is provided when an em- ployer has shut down a department of his operations for discriminatory reasons, even though this may mean that the employer must reopen the department if he is not able to reinstate the discriminatee to a substantially equivalent position in another department. 10 Although the General Counsel has pointed out in his brief to me that reinstatement is part of the remedy he ex- pects, he devotes all his argument on the remedy to a sug- gested formula for determining the amounts of backpay due the sales-engineers. I agree with what I take to be the thrust of his argument, that an adequate backpay formula would better effectuate the policies of the Act, in the cir- cumstances of this case, than an offer of reinstatement, which would require the Respondent to reinstitute jobs with a combination of functions and under a compensa- tion system no longer used, in a department which would probably have been substantially changed for nondis- criminatory reasons in 1967. I will not, therefore, recom- mend that the Respondent be required to offer reinstate- ment to any of the four sales-engineers. 11 Determining a proper backpay formula is usually not the concern of a Trial Examiner at this stage of an unfair labor practice proceeding. Here, however, some discus- sion of the past and potential earnings of the sales-en- gineers is appropriate because of the time interval between the completion of their design and sales work and when they were paid for it. Payment was made only after the order was shipped to the customer, which might be as much as 6 months to a year after their effective work on the order had been completed. Thus, the sales- engineers were paid during the remainder of 1966, for work performed before their termination in April. The Company had, however, decided unilaterally that the cut- off point for compensation purposes was the receipt of an order by April 12, 1966, which meant that design and sales work already performed would not be paid for un- less the order had been received by that date. On the other hand, the General Counsel urges that each sales-engineer receive as backpay a commission on all sales to his former accounts which resulted from purchase orders received any time in 1966 (even though some work had been done thereon by other employees after April 1966), and, in addition, a commission on or- ders received in 1967 for cylinders on which the sales-en- gineer had done the design work before his termination. The General Counsel's argument is based on the supposi- tion that the commission basis of compensation for the sales-engineers would not have been continued into 1967. Thus, the argument goes, but for their discriminatory discharges, they would have been paid for all orders received in 1966; while for orders received in 1967, they should, in equity, be paid therefor if they-had done the design work on which the order was based. I believe that the General Counsel's supposition that the commission system for the sales-engineers would not have been abolished before 1967 is correct on the basis of the evidence produced at this hearing. I think it is a fair inference from the minutes of the board of directors meet- ing in March 1966 that the 5- and 2-percent commission basis (itself a recent change) would remain in effect until 1967 when it might be reconsidered. Based on that sup- position, the General Counsel's proposed formula seems fair and equitable, being designed to provide the dis- criminatees, as nearly as possible, the amounts they would have earned in 1966 and 1967 but for their unlaw- ful discharges. My expression of approval of the General Counsel's proposed backpay formula, although not bind- ing on another Trial Examiner in a future backpay proceeding, may provide a basis for the parties in reaching a settlement on the amount of backpay due. The above considerations apply generally to all the sales-engineers. As for Loudon, the General Counsel proposes that he be allowed backpay also on orders from new accounts which he would have solicited during 1966. This strikes me as too conjectural on which to attach a backpay liability on the Company. There is no way by which one can now know how successful Loudon would have been in obtaining new accounts, or what volume of business such accounts would have produced. To award him, as the General Counsel suggests, some percentage of the new accounts which the Company acquired after his termination, on the theory that he would probably have done as well as the new sales employees, would pro- vide him with a benefit on so speculative a basis as to con- stitute a penalty on the Respondent. Backpay and interest are to be computed and paid in the manner set forth in F.W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. By discharging Kenneth Homuth , Donald Yadon, Robert Loudon, and Charles Swendsen on April 12, 1966, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed them by Sec- tion 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 10 Kelly & Picerne, Inc., 131 NLRB 543, 548; Square Binding and Rul- ing Co., Inc., 146 NLRB 206,222; and M Swack Iron and Steel Co., 146 NLRB 1068, 1069. 11 Swendsen was in fact reemployed by the Company as a project en- gineer, and Loudon was offered the same kind ofjob at a salary which was higher than what he was paid in 1966, although less than what he might have earned if he had continued to work as a sales engineer throughout 1966. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discharging any of its employees to discourage membership in any labor organization or because of their participation in concerted activities protected by the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole Kenneth Homuth, Donald Yadon, Robert Loudon, and Charles Swendsen for any loss of earnings each may have suffered by reason of Respond- ent's discrimination against him, in accordance with the recommendations set forth in the section entitled "The Remedy" herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, customers' or- ders, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Decision. (c) Post at its office at Laurens, Iowa, and at its plant at Pocahontas, Iowa, copies of the attached notice marked "Appendix."12 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 13 11 In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL make whole Kenneth Homuth, Donald Yadon, Robert Loudon, and Charles Swendsen for any loss of earnings they may have suffered as a result of their discharge. WE WILL NOT discharge any of our employees in order to discourage membership in any labor or- ganization they may form, join, or assist, or because of their participation in concerted activities protected by the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. IOWA INDUSTRIAL HYDRAULICS, INC. (Employer) Dated By (Representative) (Title) 12 In the event that this Recommended Order is adopted by the Board, This notice must remain posted for 60 consecutive the words "a Decision and Order" shall be substituted for the words "the days from the date of posting. and * must not be altered, Recommended Order of a Trial Examiner" in the notice. In the further defaced, or covered by any other material. event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- If employees have any question concerning this notice peals Enforcing an Order" shall be substituted for the words "a Decision or compliance with its provisions, they may communicate and Order." directly with the Board's. Regional Office, 316 Federal