Wilkinson Manufacturing Co.

WILKINSON MANUFACTURING CO. 791 Wilkinson Manufacturing Company and United Steel- workers of America, AFL-CIO. Cases 17-CA-4129 and 17-CA-4194 January 11, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 28, 1970, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, 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 Decision and a supporting brief, and the Charging Party filed cross-exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding 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, cross-excep- tions, and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations I of the Trial Examiner. against Wilkinson Manufacturing Company, herein called the Respondent. Thereafter, on November 18, 1969, and January 2 and 12, 1970, the Union filed first, second, and third amended charges, respectively, against the Respon- dent. On January 28, 1970, the Union filed a charge against the Respondent in Case 17-CA-4194. On April 30, 1970, the Regional Director for Region 17 of the National Labor Relations Board, herein called the Board, issued on behalf of the General Counsel an order consolidating cases and a complaint against the Respondent. Briefly, the complaint alleged that the Respondent had refused to bargain with the Union as the duly certified collective-bargaining represent- ative of its production and maintenance employees; refused to furnish the Union with various data pertaining to wages, hours, and working conditions; unilaterally changed existing wage rates and certain conditions of employment affecting said employees; failed and refused to offer full and immediate reinstatement to certain of its employees who had unconditionally applied to return to work after engaging in a strike protesting the Respondent's unfair labor practices; discriminatorily transferred an employee to a less desirable, more arduous job; and threatened and interrogated employees with respect to their union activities, in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), , herein called the Act. In its duly filed answer, the Respondent denied the commission of any unfair labor practices, and challenged the validity of the Board's certification of representative. Pursuant to notice, a hearing was held before me at Omaha, Nebraska, on June 1, 2, and 3, 1970.i All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by all parties on August 7, 1970. Upon consideration of the entire record and the briefs, and upon my observation of each of the witnesses, I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Wilkinson Manufacturing Company, Fort Calhoun, Nebraska, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 I For the reasons set forth in the dissenting opinion in Ex-Cell-0 Corporation, 185 NLRB No 20, Member Brown would grant the compensatory remedy requested by the Union 2 In footnote 20 of the Trial Examiner's Decision, substitute "20" for "10" days TRIAL EXAMINER'S DECISION ABRAHAM H . MALLER, Trial Examiner On November 12, 1969, United Steelworkers of America, AFL-CIO, herein called the Union , filed a charge in Case 17-CA-4129, i At the close of the hearing, the record was kept open for the submission of employee absentee data from Respondent's records Subsequently, such data was submitted by stipulation On July 8, 1970, 1 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is now, and at all times material herein has been, a Nebraska corporation with its principal place of business (herein called the plant) at Fort Calhoun, Nebraska, where it is engaged in the manufacture of military ordnance items and foil containers for the food industry. The Respondent, in the course and conduct of its business, annually sells and ships from its plant products valued in excess of $50,000 directly to customers at destinations outside the State of Nebraska. Accordingly, I find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Board to assert jurisdiction here. Ii. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is now, and entered an order receiving the stipulation in evidence as Joint Exh 1, and closing the record 187 NLRB No. 111 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether the Respondent failed and refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act. 2. Whether the Respondent failed and refused to furnish the Union various data pertaining to wages, hours, and working conditions, in violation of Section 8(a)(5) and (1) of the Act. All production and maintenance employees of Wilkin- son Manufacturing Company at Fort Calhoun, Nebras- ka, but excluding office clerical employees, guards, and supervisors as defined in the Act. Accordingly, I find and conclude that the Union is now, and at all times since October 16, 1969, has been, the exclusive representative for collective bargaining of all the employees in the unit described above, within the meaning of Section 9(a) of the Act, and said unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.2 B. Chronology of Events 3. Whether the Respondent unilaterally changed exist- ing wage rates and conditions of employment, in violation of Section 8(a)(5) and (1) of the Act. 4. Whether the Respondent failed and refused to offer full and immediate reinstatement to certain of its employ- ees who had unconditionally applied to return to work after engaging in a strike protesting the Respondent's alleged unfair labor practices, in violation of Section 8(a)(3) and (1) of the Act. 5. Whether the Respondent discriminatorily transferred an employee to a less desirous, more arduous, job, in violation of Section 8(a)(3) and (1) of the Act. 6. Whether the Respondent engaged in threats and interrogation designed to coerce and intimidate employees with respect to their union activities, in violation of Section 8(a)(1) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Certification On October 16, 1969, the Board in Case 17-RC-5413 issued a Supplemental Decision and Certification of Representative, following the holding of an election by secret ballot and certain other proceedings under the Act and the Board's Rules and Regulations , whereby the Union was certified as the exclusive representative for the purposes of collective bargaining for the Respondent's employees in the following described unit: 2 In accordance with established law, Respondent was precluded from litigating before me its challenge to the certification, and did not seek to do so The foregoing notice was prepared by Jacob Ericksen. Respondent's On October 20, 1969, Earl Graham, staff representative of the Union, sent a registered letter to the Respondent, in which he requested the early commencement of bargaining negotiations, along with certain employment and wage data which the Union desired to utilize in preparing for the bargaining sessions. On October 24, 1969, the Respondent, through its attorney, replied by letter denying the Union's requests. On October 28, 1969, the Respondent posted a notice to all its employees announcing that the following changes with respect to the employees' wages and working rules would be placed in effect on November 1, 1969: (1) in lieu of the annual Christmas bonus, the base rate of all hourly rated employees would be increased by 20 cents per hour; (2) the increase in the base wage rate would in no way affect the incentive programs that were then in process, but any employee who was operating a machine that did not meet the minimum required daily production would be relieved of the machine and transferred to another department at the discretion of the supervisor and the personnel director; and (3) the Company would no longer tolerate absenteeism without an acceptable excuse and employees who were absent without an acceptable excuse, as determined by the supervisor and personnel director, would be terminated; also, any employee with more than two authorized absences in any one month would have his case, including his past record, reviewed and action would be taken based on his record.3 On the day the notice was posted, the Respondent sent a telegram to the Union, advising it that such action was being taken. The 20-cent-per-hour wage increase, the elimination of the Christmas bonus, and the absentee rules were put into effect on November 1, 1969. The only rules or established policy concerning employee absences in existence prior to November 1, 1969, were personnel director, primarily in response to what the Respondent characterized as a severe problem of excessive absenteeism among the production employees which began as early as 1967 and reached intolerable limits in the fall of 1969 WILKINSON MANUFACTURING CO. 793 contained in the Respondent's employee handbook and are set forth in the margin.4 Absenteeism was quite common during the previous 2 years, and it became rampant during the 4 months preceding November 1, but the Respondent had tolerated it. According to Personnel Director Erick- sen's recollection, the only employees discharged because of absenteeism prior to November 1, 1969, numbered less than half a dozen, and they were fired pursuant to the rules in the handbook pertaining to 3 consecutive days' absence or excessive absenteeism. Other employees, however, were not discharged or otherwise disciplined even though they were guilty of what might well be considered excessive absenteeism and, in some instances, were absent for more than 3 consecutive days.5 Following the promulgation of the rules on absences, Personnel Director Ericksen began to review the personnel files of certain employees. On November 11, 1969, he discharged Mary Ellen Stricklett, Betty Porter, Kathy Imus, Ramona Green, Helen Scott, and Sarah Diggins for excessive absenteeism in accordance with the rules which had been put into effect on November 1, 1969. Marion Tague was discharged on December 18, 1969, for the same reason. In November the Union decided to stage a meeting of Respondent's employees during working hours in order to call to the Respondent's attention the fact that the Union was serious in pursuing its right to bargain for a contract. Handbills were passed out among the Respondent's employees on the morning of November 12, 1969, in the parking lot adjacent to the plant prior to the 7 a.m. starting time for work. The handbills announced that a meeting would take place at 7 a.m. that day at a hall close to the plant, and welcomed the attendance of all employees "willing to join with your fellow workers to insist that the company obey the law and bargain with the union of our choice, the United Steelworkers of America." About 80 employees attended the meeting. At the meeting, Union Representatives Graham and J. H. Stocker reviewed the Union's attempts to get the Respondent to bargain after the certification and explained that the reason for having the meeting during working hours was to prove to the Respondent the employees' determination to get the Respondent to bargain. The meeting lasted less than an hour, and the employees were instructed to return to the plant and report for work. The employees returned in a body to the plant about 8 a.m., but were refused admission by Personnel Director 4 The rules concerning employee absences are as follows ABSENCES When an employee is absent, his absence will disrupt the work in his department Therefore, absence from work will not be expected or permitted under any circumstances that can reasonably be avoided Regardless of your reason for absence, always notify your foreman or supervisor in advance that you are going to be absent If you are unable to call yourself, it is your responsibility to have someone call in for you and I Always give the specific reason for your absence. 2 Notify your supervisor when you expect to return. When the requirements of the company will permit, employees, on request, may be granted Leave of Absence for a limited time at the discretion of the supervisor and department head. Application for personal Leave of Absence will be given consideration , based upon the merit of the request, provided it does not interfere with production, Encksen. They then left the plant and reported for work the following morning. When they sought to pick up their timecards, they were sent to the lunchroom where they waited before being individually interviewed by Encksen and Charles F. Martis, administrative assistant to Respon- dent's president.6 In these interviews, the employees were told that the previous day's absence from work was considered by the Respondent to be an unauthorized absence, that such absence would count as a red mark on their record, and that another similar absence would result in their being discharged. On the evening of January 20, 1970, the union committee and Graham and Stocker, pursuant to an earlier vote of the members, decided to call a strike of the employees to commence the following morning. On the morning of the 21st, the union agents and members of the union committee distributed handbills among the employees arriving at the plant advising them that the Union "has called the Strike in support of our union demand that the Company cease its violation of the law and immediately negotiate in good faith with the Union of our choice the United Steelworkers of America." The strike began that morning and approximate- ly 40 employees participated in it. On the same day, Graham sent a telegram to the Respondent advising that the Union was ready to bargain at any time that the Respondent desired to meet with it. Under date of January 21, the Respondent, by President F. G. Arkoosh, replied stating that the telegram had been referred to its counsel. Under date of January 24, Respondent's counsel wrote to Graham stating that until the certification had been disposed of by a court, it would be inappropriate for the Respondent to recognize the Union and bargain with it. On January 23, the union leaders called a meeting of the striking employees and recommended that the strike be terminated. A majority of those present voted to return to work on Monday morning, January 26, 1970. Thereupon, by letter dated January 22, 1970, sent by certified mail, Graham wrote to the Respondent advising of the reasons for the strike and offering all of the striking employees to return to work unconditionally. The letter repeated the Union's readiness to meet with the Respondent to negotiate a collective-bargaining agreement. On the following Monday morning, January 26, the striking employees reported for work at the plant at 7 a.m. and, as before, were sent to the lunchroom where they taking into consideration the length of service and previous performance of the employee Excessive or unwarrented absenteeism may be sufficient cause for dismissal If you are absent for three consecutive working days without notifying your supervisor, and without approved Leave of Absence , you will be considered to have voluntarily resigned. 5 Thus, it was stipulated that Rudy Chudomelda was absent 7 days between January 9 and February 14, 1969. Yves Macheret, absent 3 days between November 28, 1%8, and January 7, 1969. Lois McAdams, absent 4 consecutive days between February 18 and 21, 1%9. Fern Jane Sweanngon, absent 5 days between January 16 and 20,1%9. Betty Wehrli, absent 5 consecutive days between February 17 and 21 , 1%9 None of these employees was discharged or otherwise disciplined. 6 Respondent admits that both Encksen and Martis were supervisors within the meaning of the Act. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD awaited individual interviews. The last 16 employees to be interviewed 7 were told individually that they had been replaced while they had been on strike. None of the 16 was offered any type of job at the time of their interviews, and only 1 of these employees, Maxine Barnes, was told that she could check back later for possible job openings. These 16 employees thereupon left the plant. After approximately a week had passed, the Respondent began to communicate with each of the 16 employees concerning reemployment at the plant. Maxine Thies received a telegram on February 2, 1970, offering her her prestrike job back. She reported to work on February 5. Basically the same thing occurred with respect to Maxine Barnes and Kathleen Charbonneau who received telegrams on February 3 and returned to their old jobs on the following day. John Stanley received a telegram on February 3, informing him that his old job was open. The next day he reported to work and returned to his job where he has remained. Manley J. Birks received a telegram on February 5. He reported to the plant the following day and was given his old job where he has remained. Erma Fink, after receiving a letter from Respondent, returned to work on February 2 and was given a job different from her prestnke job. She found the new job to be too arduous and, as a result, developed back trouble She stayed home from February 4 to 20, when she was offered another job which she again found to be more arduous than her old. Eventually, she was reinstated on her oldjob. Malay Sheets refused to accept a job offered to her because it was entirely dissimilar from her old job and did not return to work until May 4, when she accepted another job, also dissimilar from her prestrike job. She remained at this job. Dorothy Wickstrom was offered a job in another department, which she refused because of her health. Later, on February 17, she was offered a job similar to her prestrike job, but upon returning to work found that the new job was in the anodizing department. She accepted on condition that she would work there 1 day and would then be assigned to a different department. When the Respon- dent failed to transfer her, she refused to return to the plant until the Respondent found her a job equivalent to her old one. In the latter part of March, she received another telegram from the Respondent offering her her prestrike job. At that time, she notified the Respondent that she would not return to work because the car pool she had previously utilized had broken up. Cheryl Sudman was also offered employment. She told Personnel Director Ericksen that she would accept only her prestrike job or one similar to it. He responded by telling her that the job offer to her was the only one open She returned to work on February 17 and was placed in a job which she found to be too arduous, after I day's work she returned home. Finally, on March 30, Respondent asked her to return to work in her old department She has remained there. Kjarton McClellan was also offered a job different from her prestrike job which was on the welding line and for which she got her hourly wage plus incentive pay. The job offered to her did not include incentive pay. She rejected it. Later, Respondent offered her a job on the striker line, which she accepted, although the new job entails running different machines and less chance for earning incentive pay. Prior to the strike, Vesta Grissom had worked on the striker line operating a drill. About 2 weeks after she had been told that she was replaced, she contacted Personnel Director Ericksen and was told that there were jobs available. Due to an illness in her family, she received permission to report on February 16. She did so and was initially assigned to a job in the anodizing department which she refused to accept. She was then placed in the chuckers department, stacking trays. Three weeks later she was given a job operating a machine in the chuckers department. Her present job differs from her prestrike job in that the former requires handling heavier parts, standing all day, and getting much dirtier. Sharon Ruffcorn worked on the welding line before the strike. On February 2 Respondent offered her a job in the chuckers department. She accepted employment on February 5 and has remained in that department since, working on different jobs. These jobs are more physically demanding, and dirtier, and she does not receive incentive pay as she did on her prestrike job. Judith Fairchild received a telegram from Respondent on February 4 offering her a job in the chuckers department. Prior to the strike she had worked on the welding line, receiving an hourly wage plus incentive pay. She returned to work on February 5 and worked at two or three different jobs in the chuckers department, none of which involved incentive pay. She had to be taken off of one of these jobs because it caused a skin rash. On April 15, when she asked to be transferred out of the chuckers department, her request was turned down and she quit. Manley Clay Birks received a telegram from the Respondent telling him to report back to work before February 9. He did so, but was placed on a job different from his prestrike job. This job was dirtier and generally less desirable than the prestrike job. Prior to these events, he had enlisted in the Navy, but was not scheduled to report for active duty until about March 1. He worked at his new job until approximately the middle of February 1970, when he sprained his back. Thereafter, he entered the Navy, and at the time of the hearing was stationed at Memphis, Tennessee. Sherry Wiseman worked in the chuckers department prior to the strike On February 5 she received a telegram from the Respondent, offering her a job on the paint line. She reported to work on February 9, and accepted the job which carried a higher wage rate than her previous job. She remained on this job for the next 2 months and then quit when she found a better job elsewhere. Gwen Hanson's prestrike job was on the Army Mech line. On February 3 she was offered a job in the chuckers department, which she refused. She was then later offered another job close to the anodizing department, which she 7 Dorothy D Wickstrom, Manley Clay Birks, Cheryl Sudman, Sharon John Stanley, Manley J Birks, Kjanton McClellan, Sherry Wiseman Ru fcorn, Vesta Grissom, Malay Sheets, Maxine Thies , Maxine Barnes, WILKINSON MANUFACTURING CO. 795 again refused. Both jobs were dissimilar from her prestrike job. On March 30 she was finally given a job on the Army Mech line at the same rate of pay as before the strike She has remained there since. Norma Jean Anderson was reinstated to her prestrike job on January 26. She was a quality control inspector on the Army Mech line. After working only 3 days, she was transferred to the Respondent's main quality control office. The reason for her transfer initially given to her by her supervisor, Grover Bennett, was that the main office needed help for a few days. Two days later, Bennett told her that the real reason for her transfer was because she was considered to be a disrupting factor in her prior job. Respondent introduced no evidence to substantiate the latter reason. Anderson testified that when she returned to her job after the strike, one of the quality control inspectors told her that she didn't like the fact that Anderson had been out on strike. Others on the line would not talk to her. Also, Dixie Humphrey, the leadwoman in the Army Mech department, asked her what the Union was going to do next. Anderson remained in the main quality control office for about a week and was then transferred to the chuckers department. She was told that she would be there only a few days because the department needed help. However, she has remained in the chuckers department since then. The chuckers department Job is more physically demanding and the working conditions are worse than were prevalent on the Army Mech line. C The Refusal To Bargain Admittedly, the Respondent refused to bargain with the Union That it did so because it sought to challenge the validity of the certification does not absolve it from liability, nor entitle it to any special consideration. "If an employer refuses to bargain on the ground the election which preceded the certification was invalid, it does so at its own risk" (N L R B. v. Laney & Duke Storage Warehouse Co., 369 F 2d 859, 869 (C.A. 5)). See also The Cross Company, 127 NLRB 691, 700; Anchor Manufacturing Company, 131 NLRB 140, 143, enfd 300 F 2d 301 (C.A. 5); Washington Aluminum Company, Inc., 128 NLRB 643, 645, enforcement denied 291 F.2d 869 (C.A. 4), reversed and remanded 370 U.S 9; Shoreline Enterprises of America, Inc., 117 NLRB 1619, 1620, reversed and remanded on other grounds 262 F.2d 933 (C.A. 5); New England Processing Unit, 128 NLRB 347, 350, enfd 292 F.2d 561 (C.A 1). Accordingly, I find that the Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act D The Refusal To Furnish Information The same is true with regard to the Respondent's refusal to comply with the Union's request for employment and wage data to assist the Union in collective bargaining. This was an independent violation of Section 8(a)(5) of the Act. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-436; N.L.R.B. v. Twin City Lines, Inc., F.2d, 74 LRRM 2024, 2026 (C.A. 8); Lifetime Door Company, 179 NLRB No. 83; M.F,A Milling Company, 170 NLRB No. 111; Cone Brothers Contracting Company, 114 NLRB 303, 311-312, enforcement denied in part 235 F.2d 37 (C.A. 5). The fact that the refusal to furnish the information was in the context of a challenge to the certification is no defense. Shoreline Enterprises of America, Inc., supra; New England Processing Unit, supra. E. Cancellation of the Annual Bonus and Granting of the Wage Increase As previously stated, the Respondent, pursuant to notice to the employees on November 1, 1969, canceled the annual Christmas bonus and in lieu thereof increased the base rate of all hourly rated employees by 20 cents per hour. Respondent argues that the instant case is dissimilar from the usual cases involving the payment of bonuses in that the bonus was given for only 2 years, while in most cases in which the Board found cancellation of a bonus to be violative of the Act, the bonuses involved were of long standing. This patently is not the test. The test is whether the bonus was a working condition, rather than a gift. Thus, the Court of Appeals for the Eighth Circuit stated in N.L R.B. v. Wonder State Manufacturing Company, 344 F.2d 210 at 213: The rule is that gifts per se-payments which do not constitute compensation for services-are not terms and conditions of employment, and an employer can make or decline to make such payments as he pleases, but if the gifts or bonuses are so tied to the remuneration which employees received for their work that they were in fact a part of it, they are in reality wages and within the statute. This is a question of fact and, if the Board's finding to that effect is supported by substantial evidence, the finding must be accepted on review.8 In the instant case, the bonuses involved were substantial and were instituted in 1967 and paid in that year and in 1968 as a means of combatting absenteeism. The plan was that each employee would be paid a bonus of $25 per month for each month that he had been employed by the Respondent during the year, together with an additional $15 for each month during which such employee had perfect attendance. It is evident from the foregoing that such a bonus was indeed a working condition and part of the wages which the employee received. This conclusion is further evidenced by the fact that when Respondent canceled the bonus plan, it substituted therefor a 20-cent- per-hour wage increase for all employees. As the bonus was a working condition, the Respondent was required to negotiate with the Union as the certified representative of its employees before it canceled the bonus and substituted therefor a wage increase. The fact that the Company notified the Union of its cancellation of the bonus does not Kathleen Charbonneau, Judith Fairchild, Gwen Hanson, and Erma Fink " The Court in Wonder State concluded that the bonus was not a condition of employment for the following reasons "(1) there was no consistency or regularity in awarding the bonuses-rather they were made intermittently, i e , in 3 of the 5 years immediately prior to 1962, (2) there was no uniformity in or basis for the amount of the bonus, (3) the bonuses were not tied to the remuneration received by the employees, (4) whether a bonus was paid and the amount thereof depended on the financial condition and ability of respondent " (Id at 214) These reasons are absent in the instant case 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change the picture. Notifying the Union of a change, while at the same time refusing to negotiate with the Union concerning the change, is meaningless. It follows, therefore, that when Respondent canceled the bonus it violated Section 8(a)(5) and (1) of the Act. The same is true with regard to Respondent's substitution of a 20-cent-per-hour wage increase. Not only was this a refusal to bargain, but, in addition, it was an attempt to demonstrate to the employees the ineffectiveness of their chosen representative regarding wages and, further, that the employees did not need the Union to obtain a wage increase. As such, it was violative of Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Crompton-Highland Mills, Inc, 337 U.S. 217; Rockwell Manufacturing Co., Kearney Division, 142 NLRB 741, 750. F. The Change in the Rules Concerning Absences As previously stated on November 1, 1969, the Respon- dent put into effect the following rules regarding absences: [E]ffective as of November 1st, this company will no longer tolerate absenteeism without an acceptable excuse. In other words, those employees that are absent without an acceptable excuse, as determined by the supervisor and the personnel director, will be relieved of his position and his employment will be terminated. Also, any employee with more than two authorized times absent in any one month, will have his case, including his past record reviewed. Action taken will be based on his record. Respondent contends that the foregoing was merely a "clarification" of the preexisting rule regarding absences. The contention must be rejected. The preexisting rules set forth in Respondent's handbook9 contained only two provisions regarding punitive action for absenteeism. They are: Excessive or unwarranted absenteeism may be suffi- cient cause for dismissal. If you are absent for 3 consecutive working days without notifying your supervisor, and without approved Leave of Absence, you will be considered to have voluntarily resigned. It is apparent from a comparison of the new and preexisting rules that the new rules were more stringent than the old. Thus the old rules made excessive and unwarranted absenteeism a sufficient cause for dismissal, while the new rule made even one absence without an acceptable excuse, as determined by the supervisor and personnel director, a basis for termination. Also, the new rule introduced a new concept, viz, two authorized absences within I month would subject an employee to having his past record reviewed and render him subject to punitive action. No such provision appears in the old rule. Clearly, the new rules were more stringent than the old, and, indeed, were admittedly intended to be so as a means of reducing absenteeism. Furthermore, it appears that the Respondent interpreted the old rules liberally in favor of the employees. Thus, less than half a dozen employees were discharged pursuant to the old rules during the year before November 1, 1969, and these were fired for 3 consecutive days' absence. On the other hand, five other employees were neither discharged nor otherwise disciplined for what might be considered excessive absenteeism and, in some instances, absence for more than 3 consecutive days. 10 I therefore find and conclude that the new rules governing absenteeism, coupled with its program of strict enforcement of all rules on employee absences (which admittedly had been lax for several years prior thereto), constituted a change in the working conditions of its employees, and the failure of the Respondent to bargain with the Union concerning this change rendered it an unlawful unilateral action in violation of Section 8(a)(5) of the Act. Southland Paint Company, Inc., 157 NLRB 795, 796. The seven employees who were discharged in November and December ii were terminated for violating not the rules in the handbook, but the new and more stringent rules which had been unilaterally promulgated by the Respon- dent in violation of the Act. To remedy Respondent's misconduct I shall recommend not only that the new rules be revoked but also that the Respondent offer said employees reinstatement and make them whole by reimbursing them for any loss of earnings which each may have suffered by reason of the unilateral change of the absentee rules. Fibreboard Paper Products v. N.L.R.B., 379 U.S. 203, 215-217; Frontier Homes Corporation, 153 NLRB 1070, 1072-73, enfd. 371 F.2d 974 (C.A. 8). G. Interference, Restraint, and Coercion As stated above, on the morning of November 12 the Union passed out handbills in the parking lot adjacent to the plant informing the employees that a union meeting would be held at 7 o'clock that morning at a hall close to the plant. The purpose of the meeting was to prove to the Respondent the employees' determination to get the Respondent to bargain. The meeting lasted less than an hour and, when the employees returned in a body about 8 a.m., they were refused admission by Personnel Director Encksen. When they reported for work the following morning they were sent to the lunchroom where they waited before being individually interviewed by Ericksen and Martis. In these interviews, the employees were told that the previous day's absence from work was considered by the Respondent to be an unauthorized absence, that such absence could count as a red mark on their record, and that another similar absence would result in their being discharged. As the Respondent had unlawfully refused to bargain with the Union following its certification, the work stoppage called to protest Respondent's action was an unfair labor practice strike and, as such, a protected activity. Cf. Cone Mills Corporation, 169 NLRB No. 59. Respondent does not challenge the basic principle that Section 7 of the Act guarantees to employees the right to engage in "concerted activities for the purposes of collective bargaining or other mutual aid or protection," and that "mutual aid" and "concerted activities" include 9 See footnote 4, supra 10 See footnote 5, supra 11 Mary Ellen Stricklett, Betty Porter, Kathy Imus, Ramona Green, Helen Scott, Sarah Diggins, and Marion Tague WILKINSON MANUFACTURING CO. 797 the right of employees to withhold their services and cease work. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9. Nor does the Respondent challenge the principle that it is a violation of Section 8(a)(1) of the Act to discharge employees for engaging in such conduct. Hagopian & Sons, Inc. v. N. L. R. B., 395 F.2d 947, 950-951 (C.A. 6). Respondent argues, however, that the 1-hour work stoppage was not a form of protected concerted activity. In support of its contention the Respondent relies on International Union v. Wisconsin Employment Rel. Bd., 336 U.S. 245; C G. Conn, Ltd v. N.L.R.B., 108 F.2d 390; and American Shipbuilding Co v. N.L.R.B., 380 U.S. 300. None of the cases cited supports the Respondent's contention. American Shipbuilding Co. involved a lockout, not a strike, and the Court in that case did not pass upon the issue whether a strike, if it had been called, would have been protected. Respondent's reliance on C. G Conn, Ltd. v. N. L. R. B., 108 F.2d 390 (C.A. 7), is likewise misplaced. As interpreted by the same circuit in the subsequent case of N. L R. B. v. John S. Swift Company, 277 F.2d 641, that case involved a discharge of "employees who had been asked to work overtime, but who had refused" (id. at 646). See also First National Bank of Omaha v. N.L.R.B., 413 F.2d 921, where the Court of Appeals for the Eighth Circuit similarly read Conn, pointing out in addition that "there was evidence indicating that the employees intended to do the same thing each day until their demands were met" (id at 924-925). Respondent places strong reliance on International Union v. Wisconsin Employment Rel. Bd., supra, commonly referred to as the Briggs-Stratton case. The inapplicability of that case to the instant case is apparent from a reading of the facts. As stated by the Court at page 249: On November 3, 1945, its [the Union's] leaders submitted to the Union membership a plan for a new method of putting pressure upon the employer. The stratagem consisted of calling repeated special meetings of the Union during working hours at any time the Union saw fit, which the employees would leave work to attend. . . . The device was adopted and the first surprise cessation of work was called on November 6, 1945; thereafter, and until March 22, 1946, such action was repeated on twenty-six occasions. The employer was not informed during this period of any specific demands which these tactics were designed to enforce nor what concessions it could make to avoid them. By attempting to apply that case to the facts of the instant case, Respondent stretches the holding to the breaking point. It argues that the repetitiveness of the work stoppages was not dispositive of the case. This contention flies directly in the face of the precise language of the Court at pages 264-265, where the Court said: We think that this recurrent or intermittent unan- i2 That the repetitiveness of the work stoppages in Briggs-Stratton was the controlling element in that case was recognized by the Court of Appeals for the Eighth Circuit in N L R B v Blades Manufacturing Corporation, 344 F 2d 998, cited by the Respondent in another context At p 1005 , the court points out that "the repetitiousness of the intermittent walkouts within a short span of time was sufficient in the light of the Union's threat to continue the activity in the future so as not to distinguish the situation here from the Briggs-Stratton case - 13 The General Counsel in his brief concedes that the Respondent had nounced stoppage of work to win unstated ends was neither forbidden by federal statute nor was it legalized and approved thereby. [Emphasis supplied.]12 In the instant case we are considering only one work stoppage the purpose of which was clearly announced, viz, to protest the Respondent's admitted refusal to bargain after a Board certification. The fact that it was of limited duration does not destroy its protected character. First National Bank of Omaha, 171 NLRB No. 152, enfd. 413 F.2d 921 (C.A. 8); Ablon Poultry & Egg Company, 134 NLRB 827, 828-829. That the interviewing of the employees who attended the meeting constituted interference, restraint, and coercion is so patent as to obviate the necessity for discussion.13 Indeed, the Respondent in its brief does not even contend otherwise. Accordingly, I find and conclude that the Respondent by interviewing the employees on November 13, 1969, and telling them that their absence was unexcused and was a red mark on their record and that similar future absences would be cause for discharge was violative of Section 8(a)(1) of the Act. H. The Refusal To Reinstate 16 Strikers It will be recalled that the Union called a strike beginning on January 21, 1970. The strike lasted for 3 days, at the end of which the union representative made an unconditional offer for all striking employees to return to work. All strikers, except 16, were reinstated on January 26. After approximately a week, the Respondent began to communi- cate with these 16 employees concerning reemployment at the plant, and reinstated 6 employees to their old jobs.14 The remaining 10 were offered jobs different from their prestrike, lobs. As the strike was called because of the Respondent's refusal to bargain and other intervening unfair labor practices, it was an unfair labor practice strike, and the strikers upon their unconditional offer to return were entitled to reinstatement to their prestrike jobs. And even if the strikers had been replaced during the strike, the Respondent was required to discharge, if necessary, any employees hired as replacements during the strike and reinstate the strikers. The Little Rock Downtowner, Inc., 145 NLRB 1286, 1313; Stanley Building Specialties Co., 166 NLRB 984, 986. There is no evidence, indeed Respondent does not contend, that their prestrike Jobs were no longer in existence, and the Board has held that "where a discrimina- tee's former position is in existence as of the date of our Order, the restoration of the status quo requires that the employer reinstate him to that position ..." (The Chase National Bank of the City of New York, 65 NLRB 827, 829). Respondent argues, however, that the strike was not a protected activity and supports this contention by reason- ing which is patently fallacious. Respondent argues that the right to ascertain , through the use of personal interviews, whether these employees were planning to begin a series of intermittent walkouts . Valley City Furniture Company, 110 NLRB 1589, 1595 However, he points out quite correctly that this was not the purpose of the interviews in the instant case, and that the Respondent used the opportunity to coerce the employees by threats of economic reprisal against their continued support of the Union 14 As previously noted, although Anderson was reinstated to her old job. she was shortly thereafter moved to other less desirablejobs 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions are prohibited from giving preference to union members and have the duty to represent members and nonmembers equally. Since only union employees voted whether to strike, Respondent concludes that the January strike constituted a breach of the union's duty of fair representation and was therefore unprotected.15 No cases are cited, and indeed none can be, to support the contention that a union may not call a protected strike unless it first calls for a vote of nonmembers as well as members. Respondent relies on N L.R B. v. Blades Manufacturing Corporation, 344 F.2d 998 (C.A. 8), which I have discussed in connection with the first strike.16 That case does not support Respondent's contention. As I have noted above, the court in Blades held that the facts in that case were indistinguishable from Briggs-Stratton, supra, in that it involved "the repetitiousness of the intermittent walkouts within a short space of time" and "the Union's threat to continue the activity in the future" (344 F.2d 1005). Respondent's contention that the strike in January 1970 was unprotected must be rejected as wholly lacking in merit. As the 16 strikers were entitled to reinstatement to their prestrike jobs on January 26, 1970, Respondent's refusal to reinstate them was a violation of Section 8(a)(3) and (1) of the Act, and I so find. 1. The Discriminatory Transfer of Anderson As previously found, Norma Jean Anderson, though reinstated to her prestrike job as a quality control inspector on the Army Mech line on January 26, was transferred 3 days later to Respondent's main quality control office, and a week later was transferred to the chuckers department, a less desirable job. The reason initially given to her for the first transfer was that the main office needed help for a few days. However, Supervisor Grover Bennett later told her that the real reason for her transfer was because she was considered to be a disrupting factor in her prior job. As noted above, Respondent introduced no evidence to substantiate the latter reason. Anderson testified without contradiction that the other employees in the department were unfriendly to her after she returned from the strike. Based on Anderson's uncontradicted testimony, I find that the reason given for her transfer from the Army Mech line was without factual basis and was a pretext to penalize her for engaging in the strike. Des Moines Foods, Inc., 129 NLRB 890, 901, enfd. 296 F.2d 285 (C.A. 8); John F. Cuneo Company, 152 NLRB 929, 932. And even if her transfer was occasioned by the antiunion attitude of other employees in the department, Respondent by bowing to that attitude discriminated against her because of her union activities, in violation of Section 8(a)(3) and (1) of the Act. Majestic Metal Specialties, Inc., 92 NLRB 1854, 1862-63. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, 15 This is, indeed, a curious argument coming from a respondent which has refused to recognize the Union as the collective-bargaining representative of its employees. above, occurring in connection with the operations of the Respondent set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to bargain in good faith with the Union, upon request, as the exclusive representative of all its employees in the appropriate unit described above concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such an understanding in a signed agreement. Having found that the Respondent refused to comply with the Union's request for employment and wage data to assist the Union in collective bargaining, I shall recommend that the Respondent be ordered to furnish such information to the Union forthwith. Having found that the Respondent unilaterally changed the rules with respect to absenteeism, I shall recommend that the Respondent be ordered to cancel and abrogate the new rules regarding absenteeism. Inasmuch as enforcement of the new rules led to the discharges of Mary Ellen Stricklett, Betty Porter, Kathy Imus, Ramona Green, Helen Scott, Sarah Diggins, and Marion Tague, I shall recom- mend that the Respondent be ordered to offer them immediate reinstatement to their former jobs and make them whole for any loss of earnings each may have suffered by reason of the unilateral change in the rules regarding absences, with backpay to be computed in the customary manner.17 Having found that the strike of November 12 was a protected activity and that the Respondent charged the personnel records of all strikers with an unauthorized absence for that day, I shall recommend that the Respondent be ordered to delete such charge from the personnel records of such employees. Having found that the Respondent failed and refused to reinstate certain of the employees who participated in the strike in January 1970 when they applied for reinstatement, I shall order that the employees who were subsequently reinstated to their prestrike jobs, viz, Maxine Thies, Maxine Barnes, Kathleen Charbonneau, John Stanley, Manley J. Birks, Erma Fink, Cheryl Sudman, and Gwen Hanson, be made whole for any loss of earnings each may have suffered by reason of the Respondent's refusal to reinstate them on January 26, until the date of the reinstatement of each of them, with backpay computed in the customary manner. Having found that the following employees were denied 16 See footnote 12, supra 17 F W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co, 138 NLRB 716 WILKINSON MANUFACTURING CO. 799 reinstatement by the Respondent on January 26, 1970, and have not been reinstated to their prestrike jobs, I shall recommend that the Respondent be ordered to offer Malay Sheets, Kjarton McClellan, Vesta Grissom, Sharon Ruff- corn, and Judith Fairchild reinstatement to their prestrike jobs and make them whole for any loss of earnings (including, where applicable, lost incentive rates) each of them may have suffered because of the Respondent's refusal to reinstate them on January 26. 1970, to their prestrike jobs, with backpay to be computed in the customary manner. As previously noted, Dorothy Wick- strom received an offer of reinstatement to her prestrike job in late March 1970, but declined to accept it because of transportation difficulties. The Respondent should there- fore be ordered to make her whole for any loss of earnings she suffered from January 26, 1970, to the date she declined reinstatement to her former job As Sherry Wiseman voluntarily quit her employment for reasons unconnected with the union controversy, she need not be offered reinstatement, but should receive backpay from January 26 to February 9, 1970, when she accepted a job with the Respondent that carried a higher wage rate than her prestrike job. As previously noted, Manley Clay Birks was at the time of the hearing on active duty in the Armed Forces, and was never offered reinstatement to his former job by the Respondent The Respondent should therefore be ordered to offer him reinstatement to his formerjob, or if it was abolished, to a substantially equivalent position, upon his application within 90 days after completion of service, and make him whole for any loss of earnings he may have suffered from January 26, 1970, to be computed in the customary manner I shall also recommend that the Respondent be ordered to notify him of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. Having found that Norma Jean Anderson, though reinstated to her prestrike job on January 26, 1970, was thereafter discriminatorily transferred to other jobs, I shall recommend that the Respondent be ordered to reinstate her to her prestrikejob. Having found that the Respondent unilaterally canceled the Christmas bonus in 1969, it would normally be appropriate to require the Respondent to make its employees whole by paying them the amount of bonus which each would have earned under the previously existing bonus plan. However, the cancellation of the bonus did not stand alone, but there was substituted in its place a 20-cent-per-hour wage increase to all employees. Conse- quently, to require the Respondent to pay the employees the bonus, without taking into account the additional pay received by them in lieu of the bonus, would penalize the Respondent and would result in an unjust enrichment by the employees As the Supreme Court pointed out in Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 198, "only actual losses should be made good." It follows that in computing reimbursement to the employees for the loss of the bonus, there should be deducted therefrom additional earnings received by them as a result of the substitution of the 20- cent-per-hour wage increase. The Beacon Journal Publishing Co., 164 NLRB 734, 739. Such reimbursement shall also be paid with interest at the rate of 6 percent per annum. With regard to the 20-cent- per-hour wage increase, the Union requests that the Respondent be required to discontinue the increase. It argues that nothing undercuts and undermines a union's statutory authority more than a unilateral wage increase, for it creates the impression that the employer rather than the Union is the true protector of the employees' interests. It therefore requests a restoration of the status quo ante so that the Union may approach the bargaining table from the position of strength that it would have occupied but for the Respondent's actions. The Union points out that while this remedy may be considered unusual, it is not without precedent, and that the Board has recognized that employees, speaking through their statutory representative, should be given this option. It relies on Herman Sausage Co, Inc., 122 NLRB 168, 172; Cascade Employers Association, Inc., 126 NLRB 1014, 1016; and KXTV, 139 NLRB 93, 96.18 These cases hold that where, as part of a change of working conditions, the employer has instituted a wage increase, it is a "mixed" situation, and the Board is not in a position to determine with accuracy whether or not there will be confusion and dissatisfaction on the part of the employees, but that the Union, as the representative of the employees, is in a better position to make such a determination. Accordingly, in entering a restoration order, the Board has conditioned such order upon the affirmative desire of the affected employees, as expressed through their collective-bargaining representa- tive. In the instant case, the order restoring the status quo ante need not be so conditioned, as the Union in its brief has already requested the restoration of the bonus and the cancellation of the wage increase. Accordingly, I shall recommend that the Respondent be ordered to cancel the 20-cent-per-hour wage increase. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. The Union requests that, in addition, the Board grant what it characterizes as "unconventional" remedies. First, the Union is requesting an order compeling Respondent to make its employees whole for loss of economic benefits they can reasonably be calculated to have received, were it not for the Respondent's unlawful refusal to bargain. In support of this contention, the Union argues that had the Respondent bargained in accordance with its statutory obligation, it can reasonably be said that a contract would have been reached. On the other hand, the likelihood of a contract is greatly diminished when an employer, after a 2- to-4 year delay, is forced to bargain by a court of appeals. It points out that the illegal delay in bargaining so depletes the Union's strength, because of the lack of union-gained benefits in the interim and the resulting loss of morale and support, that any agreement whatever becomes remote. To remedy this gross inequity, the argument continues, the 18 See also Beacon Piece Dyeing and Finishing Co, Inc, 121 NLRB 953, 963 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board need only apply its "make whole" doctrine to Section 8(a)(5) cases, and the Board has the authority to fashion an appropriate remedy. The Union further points out that the Respondent works under Government contracts, manufacturing military ordnance items as well as foil containers for private commercial purposes; and that in this industry and geographic locale the measure of compensation can reasonably be calculated. A similar contention has recently been considered and rejected by the Board which held that its authority "is not so broad . . . as to permit the punishment of a particular respondent or class of respondents." Ex-cell-o Corporation, 185 NLRB No. 20. The Board further pointed out that in order to grant the requested remedy, "the Board would be required to engage in the most general, if not entirely speculative, inferences to reach the conclusion that employees were deprived of specific benefits as a conse- quence of their employer's refusal to bargain." A second unconventional remedy which the Union requests is described as a necessary corollary to the make- whole concept, viz, that the Union should be reimbursed for its attorney's fees and costs incurred as a direct result of Respondent's unfair labor practices, as well as for the dues and initiation fees it could reasonably have expected to receive, but for those unfair labor practices. With regard to the request for reimbursement of attorney's fees, the Board has already rejected such a request. In M.F.A. Milling Company, 170 NLRB No. I11, it was pointed out that "the principal responsibility for the prosecution of . . . [unfair labor] charges rests with the General Counsel, a public official, and the Charging Party's decision to be separately represented by counsel of its own is a voluntary one on its part." With regard to the Union's request for reimburse- ment of initiation fees and dues which it would have received had the Respondent entered into a contract with it, the contention is similar to that which the Board rejected in Ex-cell-o, supra, where the Board refused to go beyond ordering the Respondent to bargain in good faith. Accordingly, the Union's request for unconventional remedies must be rejected. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit set forth in section IV, above, of this Decision constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been at all times material herein the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the Union after the Union had been certified by the Board as the exclusive collective-bargaining representative of the em- ployees in the aforesaid 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 refusing to furnish the Union with employment and wage data requested by the Union, the Respondent violated Section 8(a)(5) and (1) of the Act. 7. By unilaterally changing the rules regarding absenc- es, without providing the Union with an opportunity to bargain concerning such change, the Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 8. By unilaterally eliminating the Christmas bonus and substituting therefor a 20-cent-per-hour wage increase without providing the Union with an opportunity to bargain concerning such change, the Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 9. By telling the returning strikers on November 13, 1969, that their absence because of the strike was unexcused and was a red mark on their record and that similar future absences would be cause for discharge, the Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 10. By refusing to reinstate the returning strikers on January 26, 1970, the Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 11. By discriminatorily transferring Norma Jean An- derson from her prestrike job the Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, I recommend that the Respondent , Wilkenson Manufactur- ing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing to bargain collectively with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment with United Steel- workers of America , AFL-CIO, as the exclusive representa- tive of its employees in the appropriate unit described below, and, if an agreement is reached, embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees of Wilkin- son Manufacturing Company at Fort Calhoun , Nebraska, but excluding office clerical employees , guards, and supervisors as defined in the Act. (b) Refusing to furnish the Union pertinent employment and wage data. (c) Unilaterally changing the wages , including bonuses, or working conditions of employees without notifying and bargaining, upon request , with the Union, as the exclusive representative of all its employees in the appropriate bargaining unit, prior to making such changes. (d) Discouraging membership in United Steelworkers of America, AFL-CIO, or in any other labor organization of its employees, by discharging, laying off, transferring, or in any other manner discriminating against employees in WILKINSON MANUFACTURING CO. 801 regard to hire and tenure of employment or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act' (a) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Furnish forthwith to the Union the employment and wage data requested by it. (c) Reinstate and put into effect as of November 1, 1969, the Christmas bonus heretofore in effect and make whole the employees who would have been entitled to a Christmas bonus in 1969, after deducting therefrom the amount of wages received by them by virtue of the 20-cent-per-hour wage increase which the Respondent put into effect on November 1, 1969. (d) Cancel forthwith the 20-cent-per-hour wage increase which the Respondent put into effect on November 1, 1969. (e) Delete from the personnel records of all employees who participated in the strike of November 12, the notation that their absence on that day was unauthorized. (f) Offer to the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any loss of earnings each of them may have suffered by reason of Respondent's unilateral change in the rules regarding absences, in the manner set forth in the section of this Decision entitled "The Remedy." These employees are: Mary Ellen Stricklett, Betty Porter, Kathy Imus, Ramona Green, Helen Scott, Sarah Diggins, and Marion Tague. (g) Make whole the employees named below for any loss of pay each may have suffered because of the Respondent's failure to reinstate them on January 26, 1970, in the manner set forth in the section of this Decision entitled "The Remedy." These employees are: Maxine Thies, Maxine Barnes, Kathleen Charbonneau, John Stanley, Manley J. Birks, Dorothy Wickstrom, Sherry Wiseman, Erma Fink, Cheryl Sudman, Gwen Hanson, and Manley Clay Birks. (h) Offer to the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any loss of pay each of them may have suffered because of the Respondent's failure to reinstate them on January 26, 1970, in the manner set forth in the section of this Decision entitled "The Remedy." These employees are: Malay Sheets, Kjarton McClellan, Vesta Grissom, Sharon Ruffcorn, and Judith Fairchild. (i) Notify Manley Clay Birks of his 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. (1) Offer to Norma Jean Anderson immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position. (k) Preserve and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amount of backpay and bonus due. (1) Post at its Fort Calhoun, Nebraska, plant, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (m) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.20 i'i In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes in the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 20 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to bargain collectively with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment with United Steelworkers of America, AFL-CIO, as the exclusive representative of our employees in the appropriate unit described below, and, if an agreement is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of Wilkinson Manufacturing Company at Fort Calhoun, Nebraska, but excluding office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT refuse to furnish the Union pertinent employment and wage data. WE WILL NOT unilaterally change wages, bonuses, or 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working conditions of employees without notifying and bargaining, upon request, with the Union as the exclusive representative of all our employees in the appropriate unit, prior to making such changes. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or in any other labor organization of our employees, by discharging, laying off, transferring, or in any other manner discriminating against employees in regard to hire and tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL, upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL furnish forthwith to the Union the employment and wage data requested by it. WE WILL reinstate and put into effect as of November 1, 1969, the Christmas bonus heretofore in effect and make whole the employees who would have been entitled to a Christmas bonus in 1969, after deducting therefrom the amount of wages received by them by virtue of the 20-cent-per-hour wage increase which we put into effect on November 1, 1969. WE WILL cancel forthwith the 20-cent-per-hour wage increase which we put into effect on November 1, 1969. WE WILL delete from the personnel records of all employees who participated in the strike of November 12, the notation that their absence on that day was unauthorized. WE WILL offer to Mary Ellen Stricklett, Betty Porter, Kathy Imus, Ramona Green, Helen Scott, Sarah Diggins, and Marion Tague immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any loss of earnings each of them may have suffered by reason of our unilateral change in the rules regarding absences. WE WILL make whole Maxine Thies, Maxine Barnes, Kathleen Charbonneau, John Stanley, Manley J. Birks, Dorothy Wickstrom, Sherry Wiseman, Erma Fink, Cheryl Sudman, Gwen Hanson, and Manley Clay Birks for any loss of pay each of them may have suffered because of our failure to reinstate them on January 26, 1970. WE WILL offer to Malay Sheets, Kjarton McClellan, Vesta Grissom, Sharon Ruffcorn, and Judith Fairchild immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any loss of pay each of them may have suffered because of our failure to reinstate them on January 26, 1970. WE WILL notify Manley Clay Birks of his 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. WE WILL offer to Norma Jean Anderson immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position. Dated By WILKINSON MANUFACTURING COMPANY (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.