Arthur F. Derse, Sr.

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc. and Textile Workers Union of America, AFL-CIO. Case 2-CA-10823 October 21, 1968 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On September 22, 1966, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondent Company 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. The Trial Examiner also found that the Respondent Company had not engaged in certain other alleged unfair labor practices, and dismissed the complaint as to these allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision and an answering brief to Respondent's exceptions and brief. The Boards 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 the briefs, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent herein. As the Trial Examiner found, on the morning of October 12, 1965, Union representatives Cohen and Hissam met with Walter Derse, secretary and general manager of Respondent Company, claiming to repre- sent a majority of its production and maintenance employees and made a demand that the Company recognize the Union as the bargaining agent of these employees. The three men went into Derse's office whereupon Cohen repeated the demand for recogni- tion and thrust 11 signed authorization cards in front of Derse Derse replied that the Company was a corporation and he had no authority to answer the demand. Cohen continued to press for an answer and Derse replied that the officers of Respondent Com- pany2 would meet the next night and that the Union would have an answer on the day following. The testimony is disputed as to whether or not Derse examined the cards. Derse testified that he did not pick up the cards, but that he shoved them aside and saw some signed cards and some blank cards.' Cohen testified that Derse went through the cards and was scrutinizing them throughout the conversation. Hissam testified that Derse picked up the cards and went through them one by one. Based on credibility resolutions, the Trial Examiner found that Derse did examine the cards We find no reason to overturn the Trial Examiner's finding on this point. Shortly after the conversation that same morning, the 11 employees who had signed cards stopped work and set up a picket line.' For approximately 8 months at least some of the employees continued to picket Respondent's plant. On October 13, the officers of Respondent Com- pany held a meeting and came to a decision that the Union did not represent a majority of its employees based on Derse's statement to his fellow officers that the Union had 10 or 1 I cards and Respondent had 30 employees.' They then decided to retain labor counsel. On October 25, Union representative Ruben- stein asked Derse if he had made a decision. Derse replied he had no comment to make and handed the representative a slip of paper with the name of the labor counsel on it. Rubenstein contacted the Respondent's attorney on October 27, and was told that the attorney had received no instructions from his client. The Union subsequently renewed its bargaining requests, but heard nothing further from Respondent. The Trial Examiner found that the Union's major- ity status was proved when the Union, on October 12, presented Respondent with signed authorization cards from a majority of the employees in the unit and those employees struck and commenced picketing upon Derse's failure to grant the Union's initial demand In the circumstances, the Trial Examiner further found that Respondent could not have had a good-faith doubt of the Union's majority status and, therefore, that it violated Section 8(a)(5) of the Act by its failure to recognize the Union. We do not agree. The Board has made clear that to establish that an employer's failure or refusal to grant recognition to a union on the basis of a card showing violates Section 8(a)(5), the General Counsel has the burden of proving not only that a majority of employees in the t 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 case to a three -member panel 2 Derse's two brothers and his father own all the stock of Respondent Company and are its officers 3 Cohen testified that two blank cards were included because two employees indicated that they were going to sign , but the Union hadn't as yet obtained their signatures 4 Two more employees signed authorization cards and joined the picket line the next day. 5 The Trial Examiner found that the appropriate unit consisted of 18 employees and that on October 12 Respondent Company knew that the Union represented an uncoerced majority of its employees in a unit appropriate for the purposes of collective bargaining by reason of Derse's examination of the union authorization cards and because the officers of Respondent Company observed and knew that a majority of its employees in such a unit had ceased work and were on a peaceful picket line patrolling the Company 's premises. 173 NLRB No. 30 ARTHUR F appropriate unit designated the Union as their bargaining representative, but also that the Employer in bad faith declined to recognize and bargain with the Union. This is usually based on evidence indi- cating that the Employer has completely rejected the collective-bargaining principle or seeks to gain time within which to unlawfully undermine the Union and dissipate its majority.6 In the present case, however, there is no showing whatsoever that Respondent had rejected the collective-bargaining principle or engaged in any inter- ference, restraint, or coercion of employees to under- mine the Union. Nor does the record show that Respondent has engaged in any other conduct which would prevent the holding of a fair election. We conclude, therefore, that the record does not prepon- derantly establish Respondent's bad faith in refusing to recognize the Union, and we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 6 Joy Silk Mills, Inc., 85 NLRB 1263 , enfd 185 F 2d 732 (C A D C.) Compare , however , Snow & Sons , 134 NLRB 709, enfd 308 F 2d 687 (C A 9) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner Upon a charge' filed by the Textile Workers Union of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, on behalf of the Board by the Regional Director for Region 2 on May 9, 1966, issued an amended complaint and notice of hearing naming as the Respondents, Arthur F Derse, Sr ,2 President, and Wilder Mfg. Co , Inc , herein referred to sometimes as the Respondent Company or Respondent Employer. The amended complaint alleged that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and 8(a)(5) of the National Labor Relations Act, as amended, herein called the Act. The Respondent denied the allegations of the amended complaint by answer timely filed The foregoing case came on to be heard before me on June 7, 8, 9, 29, 30 and July 1, 1966, at Port Jervis, New York At the hearing each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally upon the record, to submit proposed findings of fact and conclusions of law, and to file briefs. All briefs have been reviewed and considered by the Trial Examiner I The charge was filed on November 4, 1965. 2 Arthur F Derse , Sr owns a majority of the stock of the Wilder Mfg Co , Inc His three sons , Arthur F . Derse, Jr., Robert Derse, and Walter Derse , own the remaining shares. DERSE, SR. 215 The principal question before the Trial Examiner is whether the employer was obligated to recognize and bargain with the Union upon a showing that an uncoerced majority of its employees in an appropriate unit had designated the Union as their bargaining agent Upon the whole record and from his observation of the witnesses, the Trial Examiner makes the following FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent Company is and has been at all times material herein a corporation duly organized, and existing by virtue of the laws of the State of New York, and at all times material herein the Respondent Company has maintained an office and place of business at Mechanic Street and Erie Railroad, in the City of Port Jervis, New York, where it is and has been at all times material herein engaged in the manufac- ture, sale and distribution of baking pans, bakeshop equipment and related products During the past year, which is representative of its annual operations generally, the Respondent Company, in the course and conduct of its business, purchased and caused to be transported and delivered to its Port Jervis plant, steel and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in interstate commerce directly from States of the United States other than the State in which it is located The Trial Examiner finds, as is admitted, that the Respon- dent Company is now and has been at all times material herein engaged in commerce within the meaning of Sections 2(6) and (7) of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein 3 II THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A. The Alleged Violations of Section 8(a)(1) of the Act The sole admissible evidence cited by the General Counsel in support of the contention that the Respondent Company violated Section 8(a)(1) of the Act is the following testimony of employees Jack Munoz and Charles Shaw From the testimony of Jack Munoz . . Walt said to tell us that any time we wanted to go back we could come back and send a committee of two men to go talk to Walt 4 From the testimony of Charles Shaw: Well I went down to get a couple of tires for my car from the locker room and we got on talking about the plant and he said there were some changes made that they had coffee breaks now that we didn't have before, and that the merit 3 The Trial Examiner deems it unnecessary for the purposes of this decision to resolve whether Arthur Derse, Sr., is an employer within the meaning of the Act 4 The General Counsel contends that this statement "constitutes an attempt to by-pass the employees ' representative " 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD system was throwed out and that they were getting paid overtime for Saturdays ....5 Both statements were attributed to Supervisor William DeGraw A strike occurred at the Company's establishment on October 12, 1965. Picketing continued for about 5 or 6 months thereafter DeGraw testified that about 2 weeks after the strike commenced, as he was on his way with his family to pick apples at his father-in-law's place, he saw Munoz' automobile parked at his home, he stopped to visit with him While there, the DeGraws picked apples, discussed deer hunting and football and watched a part of a football telecast During the course of the visit DeGraw asked Munoz "if he were going back to work" Munoz answered, "No, not without a union." Munoz' testimony varied little from that of DeGraw except Munoz attributed to DeGraw the remarks set out above, to wit: ... Walt said tell us that any time we wanted to go back we could come back and send a committee of two men to go to talk to Walt. DeGraw specifically denied that he had made these remarks Munoz agreed that he and DeGraw were friendly and visited at each other's homes The visit lasted between 20 minutes and a half hour Employee Charles Lincoln Shaw, prior to the strike, had purchased an automobile from Supervisor DeGraw. Some time during March 1966 Shaw visited DeGraw for the purpose of picking up a "couple of tires" which belonged to the automobile. According to Shaw, he asked DeGraw whether it would be alright if he returned to work DeGraw responded that he did not believe that Shaw would be fired and he could return to work if he "wanted to " According to DeGraw Shaw asked him whether "there was any chance of his coming back to work." DeGraw answered that "any one of the striking employees could come back to work, that the door was opened " Shaw responded, "Fine, probably be back on Monday " DeGraw testified that Shaw also asked him if any changes had been made at the plant DeGraw also testified that the parties had discussed overtime work Credible testimony indicated that the only change effected during the strike period was the establishment of a breaktime Prior to the establishment of such break time employees were permitted to obtain a cup of coffee at any time during the workday and if they wanted to smoke "they would go to the mens room." As early as September 1964, DeGraw had recommended established breaks in lieu of this practice, however, established breaks could not be put into effect because the Respondent Company did not have a smoking permit from the State Department of Labor. Application was made for such a permit on October 12, 1964. The permit was granted after an appeal on July 1, 1965, upon condition that "[s]moking shall be permitted during the coffee break and lunch period " In accommodating the condition the Company 5 The General Counsel contends that this statement "amounts to an attempt to induce Shaw and the other strikers to cease picketing by an offer of benefits." 6 The Trial Examiner has considered all evidence in the Record involving DeGraw. 7 The card contained the following language "I hereby accept membership in the Textile Workers Union of America of my own free will and do hereby designate said Textile Workers Union of America as my representative for the purposes of collective bargaining in respect to rates of pay , wages, hours of employment and other conditions of was required to make certain alterations in its plant to provide an approved smoking area for its employees These alterations were commenced in the latter part of 1965 and completed in the early part of 1966 Two 10-minute coffeebreaks, one in the morning and the other in the afternoon, were then established. The record is barren of any credible evidence that the "merit system was throwed out" or that there was any change in pay for Saturday overtime. Thus the record is lacking in proof that the employer did attempt to induce strikers to cease picketing by an offer of benefits and hence it is highly unlikely that DeGraw would have made the representations which were attributed to him by Shaw. Moreover, as between DeGraw and Munoz and Shaw the Trial Examiner credits DeGraw In reaching this conclusion the Trial Examiner has considered the nature of the testimony, the demeanor of the witnesses, the environment in which DeGraw's remarks were uttered, and the fact that the employer's policy was clearly one of avoiding the commission of any unfair labor practices. Measured by the allowable rights granted under Section 8(c) of the Act, the Trial Examiner cannot find that by DeGraw's conduct, as detailed in the Record6 the Respondents violated Section 8(a)(1) of the Act. Dismissal of all allegations of the amended complaint based upon the alleged misconduct of Supervisor DeGraw is recommended B The Alleged Violation ofSection 8(a)(5) of the Act 1 The Union's showing of interest William Hissam, a representative of the Union, met with 11 employees of the Respondent Company at his home on the evening of October 11, 1965 Present were Dominick Cali- ciotti, James Ehre, Fredrick J Hicks, Harman B. Masker, Michael J Molloy, Jack Munoz, Joseph Munoz, Arthur I. O'Hara, Charles L Shaw, James E Stempert, and Harold D Vandermark At the meeting each of the 11 employees signed a union authorization card? and approved a motion by signing his name below the following language "Upon asking em- ployer for recognition, and upon his refusal there is a motion among the people present to go on strike " On October 12, 1965, these 11 cards were presented to Walter Derse, secretary and general managers of the Respon- dent Company, who thereupon did not recognize the Union as the statutory bargaining agent of its employees. Upon being so advised the 11 employees, who had reported for work on the morning of October 12, 1965, left their jobs and set up a peaceful picket line in the vicinity of the Respondent Company's premises. The Trial Examiner finds that on October 11, 1965, 11 employees of the Respondent Company had designated and selected the Union as their bargaining agent. On October 12, 1965, H. Hernsdorf of his own free will signed a union authorization card9 in response to a request by employment ." Signatures on the cards were properly authenticated for the record either by the acknowledgment of the signers under oath or by the credible testimony of a witness who observed the signing of the card. 8 As general manager, Derse testified that he was responsible for "the entire operation , the sales, the advertising, production and all problems relating to anything of this nature " 9 There is no competent credible proof that Hernsdorf was coerced into signing the card on October 12, 1965 ARTHUR F DERSE, SR a picket as he left the employer's plant at noon. Hernsdorf joined the picket line and picketed on October 12 and the following day. He remained away from work for several months thereafter On October 12, 1965, Irving Hughson signed a union authorization card "[b] y the picket line " Thereafter Hughson remained away from work until January 20, 1966 The Trial Examiner finds that by the afternoon of October 12, 1965, 13 of the Respondent Company's employees had designated and selected the Union as their bargaining agent. 2. The appropriate unit The amended complaint alleges that the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is All production and maintenance employees of Respon- dents, employed at its Port Jervis plant, exclusive of draftsmen, office clericals, plant clericals, guards, watch- men, professional employees and all supervisors as defined in Section 2(11) of the Act The parties stipulated that there were 30 employees on the Respondent Company's payroll as of October 12, 1965, "with the exception of the executive officers "1 0 By consent of all parties the following 18 employees appearing on the October 12 payroll were included in a unit of production and maintenance employees Roger Burcham, Dominick Caliciotti, James Ehre, Frank Griggin, Hilmut Hernsdorf, Fred Hicks, Irving Hughson, Harmon Masker, Michael Malloy, Jack Munoz, Joseph Munoz, Arthur O'Hara, Don Shafer, Charles Shaw, Allen Smith, James Stempert, Frank Tonkinson, and Harold Vandermark The parties further agreed that Jack McCaslin,i f plant manager, and William DeGraw,12 supervisor of the machine department, should be excluded as supervisors and that Jean Clark, Shirley Hawkins, and Patricia Somarelli should be excluded as office clerical employees The Respondent Company contends that the seven employees remaining on the payroll list of October 12, 1965, should be included in the appropriate unit 13 The General Counsel maintains that the seven employees14 should be excluded from the appropriate unit The Respondent Company's plant is located at Mechanic Street and Erie Railroad, Port Jervis, New York.15 A brick wall separates the factory or production section of the plant from the general office area The factory area or section contains a machine shop, welding department, assembly area, 10 The executive officers of the Respondent Company were Arthur F Derse, president, Walter Derse, secretary, Arthur Derse, Jr , vice president , and Robert Derse, treasurer i l Of McCasim's duties Walter Derse testified , "Jack McCaslin is in charge of the production department He handles the assembly and he is over Bill DeGraw . . He is responsible to me and only me." 12 Of DeGraw 's duties Walter Derse testified , "Mr. DeGraw is the foreman in the machinery department, and takes over in Jack McCashn's absence , of the entire production " 13 Since the Respondent 's proposed unit is composed of 25 employees it is apparent that the Union on October 12, 1965, held valid authorization cards ( 13 in number) for a majority of the employees in such unit 14 These employees were Chester Swingle, Harold Lauer , Earl Clark, James Wharton , Francis May , Carol Forbes, and Yvonne Flannery is Walter Derse described the Respondent Company's business as follows We manufacture steel baking equipment We start with raw material that is in the form of sheets, angle iron . Such finished hardware as casters, bolts , et cetera 217 machinery area , packing area, receiving area and raw storage, and warehouse and shipping area The shipping area, ware- house and receiving area and raw storage are separated from the remainder of the factory section by a wall. An enclosed production office is located in the assembly area where McCashn is located. No clerical type employees are assigned to the production office The general office contains partitioned spaces, ceiling high for the president's office, treasurer's office, secretary's office, vice president's office, accounting depart- ment and layout department. Bounded on one side by the wall separating the factory section from the general office and by the president's office, accounting department, lobby, trea- surer's office, secretary's office, vice president's office, and layout department is an area designated as the corridor and file room Each of the above-mentioned offices and departments has doors opening into this area Of the seven employees whose classifications are in dispute six are assigned to the general office area Swingle works in the factory area. The three excluded office clericals are also assigned to the general office area Employees Lauer, Wharton, and Clark worked in the layout department, May's desk was located in the corridor and file room adjacent to the layout department. Clark's desk was located in the corridor and file room next to the secretary's office door Hawkins' desk was adjacent to and in front of Clark's desk. Flannery and Forbes were located at the end of the corridor and file room nearest the president's office and accounting department Somarelh worked in the accounting department The corridor and file room contained file cabinets, desks, chairs, adding machines, typewriters, a calculating machine, a Xerox machine, and a storage cabinet. Partitions in this area were 54 inches high The general office and factory areas have separate en- trances Employees working in the general office area normally use an office entrance while employees working in the factory area use the factory entrance which opens onto a parking lot Separate timeclocks are maintained for each group of employ- ees. Employees working in the factory area wear a different kind of apparel than those assigned to the office area Office and factory employees do not work like hours.16 Jack McCashn, plant manager, who is the senior supervisor over the employees who work in the factory area , exercises no supervisory authority over the employees who are assigned to the general office area. Employees are not interchanged between the factory area and the office area. Employees in the This material is sheared and blanked , punch formed , and then assembled in various ways, either spot welding or electric welding, Healy arc welding, Baum riveting. Some items go out unassembled. They get shear knocked down, and the ultimate form of this equipment is in work benches for bakeries and ingredients containers and ingredients drawing units, flour, sugar and items of this nature, pan racks for the storage of pans and bake goods, dolleys for pans and bulk racks , cabinets for the raising of doughs and items of that nature. [hey are basically used in various types of retail or small type bakery operations or bakery departments . . 16 Derse testified that the production and maintenance employees punch in at 8 a m. and out at 4 45 p.m. and have 45 minutes for lunch, that the girls in the office punch in at 8:30 a.m. and out at 5 p m. and apparently have an hour for lunch, that Lauer, Wharton , and Earl Clark punch in at 8 a.m. and out at 5 p.m. with an hour for lunch , and that May punched in at 8 a m., out at 5 p.m., with an hour for lunch. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office area receive their instructions principally from Walter Derse, Robert Derse, and Arthur Derse, Jr The duties of Harold Lauer, Earl Clark, and James Wharton. Lauer, Clark, and Wharton work in the layout department which was also referred to by Lauer as the engineering and estimating department Lauer testified that he was "[h] ead of the engineering and estimating department "i 7 Walter Derse testified that while the department is under his "command" he looks to Lauer " to see that the other men [take] care of the job." Laueri 8 described his duties as follows, "any requisi- tions19 that I receive from the sales department have to be processed under my direction Sometimes I do the work of processing these requisitions, most of it is carried out under my direction by Wharton and Clark This would mean laying out20 the jobs, preparing any necessary drawings I also have to follow through any item, catalogue item, that is under redesign or is of new design, also any prices of special items, noncatalogue items or special items. I figure the prices on them and also the perpetual pricing system that is set up for all catalogue items is under my direction " Lauer also testified that he spent his time " [d] elegating the work to be done, 21 checking out what work has been done, checking into new design provisions, work of that type " Lauer also said he worked "on planning into designs and designing into equip- ment." Lauer is an associate engineer, a graduate of Pennsylvania State University Lauer testified that he normally performed his duties'in the "engineering office" and did not work in the factory areas, however, upon occasion he went into the plant Occasionally one of the Derses summoned him to the plant to show him "something that should be changed on an item or a problem that [had] arisen " Sometimes he was called into the plant by McCaslin or DeGraw about a problem These problems were described by Lauer as "[u]sually a production problem or an item being made Could be they have to substitute material, sometimes we run short of material, there could be a mistake in the engineering layout, there could be a mistake in the drawing, something of that type " Chester Swingle, who was in charge of the warehouse, receiving, packing and parts depart ment, consulted Lauer about packing and bill of parts' problems Lauer's visits to the plant were brief and intermit- tent, he noted the problem on a pad and resolved it in the layout department if it could not be "taken care of immedi- ately " The record is barren of any evidence that Lauer in the course of his duties contacted non-supervisory factory per- sonnel. Lauer testified that Wharton and Clark work in the engineering office and each has "their own drafting board with a drafting machine attached to the board, they have architects and engineers scales, mechanical drawing pencils, mechanical sharpeners and any necessary drafting instruments " Lauer said that they were not "full-time draftsmen" 22 but only per- 17 Lauer testified , "I have two men that work directly under me, Earl Clark and Jim Wharton " 18 Lauer 's testimony is credited in connection with the functions and duties of the employees in the layout department 19 A requisition is a form made up by Frank May when items required to fill a customer's order are either not in stock or when by filling the order , the number of such items in stock will fall below a minimum figure 20 Lauer described "layouts" as "necessary papers for men in the factory to produce catalog items or special items" and entailed "any cutting sheets , shearing sheets , fill in cards , wood working sheets, any formed drafting work when the work required drafting to be performed Besides draftmen's work, Lauer said that Wharton and Clark "do lay out, filling in the sheets, items to be made " Clark in addition to job layouts and drafting "takes method photos" and "catalog photos " Both Clark and Wharton use drafting machines, scales, dividers, and compasses in the normal performance of their duties which are performed at their "own drawing boards" in the "engineering office " According to Lauer, Clark had no technical schooling in drafting, his knowledge of drawing and drafting had been acquired through experience Wharton had mechanical drawing in school and attended Orange County Community College where he took a course in drafting While Clark normally performed his work in the engineering department at least once a month he went to "the factory to take any photographs of a particular method or way a job is done" for engineering recording On these occasions he might spend 20 minutes to a half hour in the plant Clark also had occasion to carry papers in reference to a "quickie job" to the production department These trips consumed a "few min- utes " Wharton also delivered papers to the production department for jobs which were not run through a regular shop order As did Clark's trips, these trips consumed a few minutes The duties of Frank May Frank May was designated as an inventory control clerk and maintained the inventory control file May is responsible to Walter Derse As orders were received, lean Clark, an excluded clerical employee, placed them in an order pan where they were picked up by May who interpreted them and checked them with the catalogue to make sure that the order was correct May then made up a return makeup order sheet, checked the inventory to make certain the items ordered were available by consulting a master inventory list by his desk, and reserved the inventory If there were insufficient items in stock to cover the order or if the order brought the amount of stock below the minimum or if it was an item made up on order only, May made out a requisition in longhand which he delivered to the layout department for Lauer's review The requisition was then typed by Flannery When the items were in stock, the order was typed from the makeup order May then checked the typed copy with the makeup order and if it was correct he removed the shipping order copy. Shirley Hawkins, an excluded clerical employee, typed labels and bills of lading which she delivered to the shipping department together with the shipping order copy May occupied a desk adjacent to the layout department opposite the vice president's office No partition surrounds his station According to Derse, May spent 75 percent of his time at his station and the remainder in the plant, however, other testimony which seems more plausible indicates that May spent 5 or 10 minutes a day in the plant There is no evidence that May worked in the factory May's only activities in the factory described in the record concern his traveling to the necessary drawings, mechanical drawings , made in proportion " According to Lauer he reviewed this kind of work and assigned it to Wharton or Clark When it was completed it was returned to his desk for checking 21 Lauer testified "I assign their work, what has to be done, I tell them [Clark and Wharton I what to do first, and if there 's any question arises while they're doing it , I try to answer that " 22 Lauer defined a draftsman as "either a man or woman having the knowledge to use a drafting machine, engineer scales and be able to draw architectural or mechanical scales." ARTHUR F DERSE, SR 219 shipping area to pick up the shipping department's copy of the orders together with the first and third copy of the bill of lading which he brought to his station 23 The duties of Carol Forbes. According to Walter Derse Carol Forbes was responsible to him although Lauer "makes sure she carries out the proper distribution of the forms and makes sure that the operational cards and any papers relevant to the production are carried out in the right form " Forbes received envelopes containing orders and layout forms from the layout department. She then prepared the operational timecards required for each order and added them to the documents already in the production envelope Forbes also was required from time to time to run the Ozalid machine located in the layout department in order to duplicate operational timecards Forbes spent approximately 70 percent of her time preparing the operational timecards She also prepared method sheets which she received from the layout department These method sheets are taken by her to the production office where they were stored The duties of Yvonne Flannery- Yvonne Flannery was an inventory clerk for raw materials She was responsible to Walter Derse She also typed shop orders In performing the function of inventory clerk for raw materials she entered shipments received and maintained a master file of raw materials On occasion she would consult with Plant Manager McCashn about material, particularly if there was a question concerning the type of material which had been received The duties of Jean Clark, Shirley Hawkins, and Patricia Somarelli 24 Jean Clark Jean Clark who had been employed by the Respondent Company for a period of 11 years was a clerk-typist She was the confidential secretary to Walter Derse In the morning and afternoon she opened the mail and distributed it She also wrote up sales orders and checked sales orders written by employee Hawkins. She handled all corre- spondence Once a day for 5 or 10 minutes she delivered shipping papers to the shipping and receiving department. Shirley Hawkins Shirley Hawkins worked in the sales depart- ment in the general office area She wrote the main part of the sales order, figured the pricing, handled some correspondence and typed envelopes On occasion she would take shipping papers to the shipping and receiving department. Patricia Somarellt• Patricia Somarelli worked in the accounting depart- ment. According to Derse she spent the first hour and a half of every day in the production office checking operation and payroll cards which were delivered to Carol Forbes for recording the operation time At the end of the week Somarelh prepared the payroll from the timecards Somarelli also prepared accounts payable and receivable, prepared bank deposits and wrote checks The duties of Chester Swingle- According to the testimony of Walter Derse, Swingle was "in charge of the warehouse, receiving, packing and parts department " Swingle "told [em iloyees James Stempert and Arthur O'Hara] what to do" 5 and was "basically" in charge of their activities. Derse testified that he "looked on [Swingle] as a super- visor " Swingle and Plant Manager McCaslin were "responsible for checking final production." Swingle "on occasion" an- swered to Walter Derse; on other occasions he answered to McCaslin Swingle received a higher rate of pay than the employees, Stempert and O'Hara Swingle worked alone about half of the time When Stempert and O'Hara worked with him, Swingle also physically worked at packing and shipping Stempert and O'Hara reported to Swingle each day If Swingle had no work for them he turned them over to McCaslin The Trial Examiner is of the opinion that Swingle respon- sibly directs employees of the Respondent Company and that the exercise of such authority was not of a merely routine or clerical nature but required the use of independent judgment The Trial Examiner finds that Swingle is a supervisor within the meaning of Section 2(11) of the Act The Trial Examiner is of the same opinion in respect to Harold Lauer and finds that Lauer is a supervisor within the meaning of Section 2(11) of the Act Thus Swingle and Lauer must be excluded from any unit As to the other five employees whom the Respondent would include and the General Counsel exclude from the appropriate unit, it is the opinion of the Trial Examiner that they should be excluded from the appropriate unit in that a community of interest is lacking between these five employees and the conceded production and maintenance employees Of controling importance in reaching this conclusion are these factors (1) no working contacts exist between the five employees and the production and maintenance employees, (2) common supervision is lacking, (3) working conditions are dissimilar, (4) skills and functions of the two groups of employees differ, (5) substantially all the work of the five employees is performed in the general office area in close proximity with excluded office employees and the administra- tive officers of the Respondent Company, (6) the five employees are under the same general supervision as the excluded clerical employees, (7) the five employees perform work closely related to that of employees usually excluded from production and maintenance units, (8) the work of the five employees is not directly integrated with the production process, and (9) a community of interest prevails between the five employees and the excluded clerical employees The Trial Examiner finds that the unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is All production and maintenance employees of the Wilder Mfg Co , Inc employed at its Port Jervis, New York plant, excluding all other employees, guards and supervisors as defined in the Act 26 3 The Union's demand for recognition and the Respondent's refusal to recognize the Union Between 9 30 and 10 on the morning of October 12, 1965, Cy Cohen27 and William Hissam, representatives of the Union, 23 Derse testified, "They IMay and McCashn] discuss what may be coming through the plants, and Frank will then, based upon this conversation with lack, he will make his moves, so his moves in many cases are dependent upon what Jack McCaslin tells him." 24 The duties of the excluded clerical employees are reviewed in order that the unit question may be viewed in full perspective. 25 Derse testified "if he [Swingle] wanted them to pack they packed , if wanted them to cut up a little they cut up a little " 26 The Trial Examiner considers this unit to be substantially the same as the unit set forth in the amended complaint. 27 Cy Cohen had been employed by the Union for "[t]wenty odd years " 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made demand upon Walter Derse that the Respondent Compa- ny recognize the Union as bargaining agent According to Derse he arrived at the Company's plant at about "25 minutes to 10 00" and was advised that a Mr. Cohen wanted to see him but would not state his business About 5 minutes later Cohen appeared in the lobby but again would not state his business. Upon receiving this information from Yvonne Flannery, Derse went to the lobby Cohen introduced himself and Hissam and said, "We're from the Textile Workers Union We have something of material interest " Derse said "What do you mean " Cohen replied, "We represent a majority of your employees,28 and we want to know whether you will recognize us as their bargaining agent." Whereupon Derse invited Cohen and Hissam into his office where all three sat at a small conference table, "two and a half feet by four " Cohen "shoved" the authorization cards in front of Derse but Derse did not touch them. Cohen repeated the purpose of his visit and Derse replied, "Mr Cohen, this is a corporation, and I have absolutely no authority to answer that question." Cohen inquired, "In other words, you refuse?" Derse answered, "I didn't refuse I said I did not have authority to answer that question." Cohen responded, " if you refuse, we'll file unfair labor practice charges " Derse said, "There's nothing I can do about it I have no authority " Cohen continued to press for an answer and Derse said that he "could have an answer on Thursday"29 at which time his one brother (Arthur Derse) would have returned from Atlantic City. Derse indi- cated that the officers of the Respondent Company would meet on Wednesday night Cohen said, "I can't wait that long I have to know I will give you an hour Would you rather have the men wait outside "30 Derse replied, "I can't do anything about it, I can not answer the question you ask me " Cohen again "shoved" the cards toward Derse who did not pick them up Derse testified that he "moved them aside" and saw some signed cards and some blank cards. Cohen said, "Yes, there are blanks in there "31 At this point Cohen asked if he could "talk to the men outside " Derse replied that he had no authority "to let [him] inside to talk to these men " Cohen then asked whether he could place a phone call to the men. Derse explained that emergency calls were permitted. There- 28 Derse denied that the term " production and maintenance employees" had been used Both Cohen and Hissam testified that Cohen informed Derse that the Union represented a majority of "production and maintenance employees " The Trial Examiner credits the testimony of Hissam and Cohen in this respect as well as the other material portions of their testimony which is in conflict with that of Derse These credibility resolutions are not only drawn from the demeanor of the witnesses, but it seems plausible that a union representative such as Cohen with "20 odd years" experience would not have overlooked demanding recognition in a "production and maintenance unit " 29 Derse's affidavit to the Board does not reveal that Derse had told Cohen that he would have an answer by Thursday In any event the Union received no answer 30 In his affidavit to the Board Derse averred, "Cohen said he could not wait until the next day for answer, he could wait an hour or otherwise he would pull the men out on strike." 31 Cohen testified that he laid the cards on the table in front of Derse Derse picked them up and "went through them." Derse noticed two blank cards and "questioned " them Cohen told him that the cards were "in there because two people . . signified they were going to sign" and the Union "hadn't been able to get their signatures as yet." Cohen testified that Derse was "scrutinizing" the cards "all during the conversation " and that "he put them down once and picked them up again." 32 Derse testified that he "would judge that there was , including the blanks, probably fifteen cards," but that he did not know how many blanks were among them 33 Derse admitted that this statement to Cohen was untrue. upon Derse "took the cards" and "shoved them back " Cohen picked up the cards 32 and left It was then about 10 10 At 10 25 a phone call was placed through the plant switchboard to Jack Munoz At 10 26 the 11 employees who had signed cards punched out and left the plant At 10 26 Cohen phoned Walter Derse and according to Derse said that "their boss (Mr Rubenstein) said they could not wait, that they were going to pull them men out " Derse replied, "Nothing I could do about it " Derse testified that by late night of October 12, 1965, he had contacted all the officers of the Respondent Company including Arthur Derse, Jr , who had been in Atlantic City and suggested that they get together on Wednesday night, October 13, 1965 On October 13 at 11 25 am Derse received a telephone call from Cohen According to Derse, Cohen asked him if he had made up his mind Derse answered, "No, my brother had not as yet returned, that I couldn't talk to him,33 that we would get together that night and I could only answer him the next night That was the earliest I could tell him." Cohen wanted Derse again to "agree to recognition " Derse answered that he "couldn't do it until a decision was made "34 The meeting of the Respondent Company's officers was held on Wednesday night According to Derse the officers came to a decision that they doubted the majority based upon Walter Derse's statement, "It looks to me like about ten or eleven, and we're thirty-four people Dropping us four as officers we still have thirty. Now, simple mathematics, eleven is not a majority of thirty .."35 The officers decided to retain counsel, a labor specialist 36 Derse contacted and retained Friedlander, Gaines, and Ruttenberg on October 19, 1965 On October 25, 1965, Derse testified that as he was driving in the Company's parking lot Jack Rubenstein, a union representative, asked him whether he had made a decision. Derse answered, "I have no comment to make" and handed him a slip of paper with the names and phone number of Friedlander, Gaines and Ruttenberg Rubenstein was told to contact these attorneys 37 34 Derse denied that Cohen mentioned that he held two additional authorization cards . Cohen testified that he called Derse on October 13, 1965 , and asked him if he had heard anything from his brothers Deise answered , "No." According to Cohen, he told Derse, "As a matter of form I am asking you for recognition once more I have additional cards I expected yesterday, I have them to-day " Cohen requested an answer as "quickly as possible" and suggested that he call Derse later. Derse replied, "If you want to call, call , if you don 't, don't " 35 Derse testified that he included all the employees in the thirty "because . what Mr Cohen told me, was that they represented a majority of our employees " As noted above the Trial Examiner has found that the Union requested representation in a production and maintenance unit . Thus there was no basis for Derse 's assertion that the Union desired to represent all thirty employees Moreover, the Trial Examiner is not convinced that Derse was so unschooled in labor matters as to believe that the Union was seeking to represent Plant Manager McCaslm , Supervisor DeGraw, or the office clerical employees whom the employer conceded should be excluded from an appropriate unit. Furthermore at the time Derse's remarks were claimed to have been made , he was aware that only production and maintenance employees had joined the strike. 36 Derse had contacted a local attorney on October 12 who told him he should make no further comment or do anything about the situation but to seek a competent attorney. 37 Rubenstein testified without contradiction that he contacted the Respondent Company's attorneys on October 27, 1965, and was told that the attorneys had received no instructions from their client Rubenstein heard nothing further from the attorneys. ARTHUR F. DERSE, SR 221 Between October 13 and October 25 the Respondent Company did not contact the Union or thereafter The matter has remained in the same status in respect to union recognition as it was on October 12, 1965. Throughout the strike the employer maintained an open door policy toward the strikers. The Company remained out of production for about 30 days On December 30, 1965, the employer wrote a letter to the striking employees in which the employees were reminded "that the door has always been open for your return " The letter highlighted the "past performance of the company" in contrast with the "unfilled promises you have received from outsiders or strangers " The employer commenced hiring new employees on January 3, 1966 Seven employees have returned to work.38 One employee refused to come back because he wanted more money On January 4, 1966, the employer wrote the striking employees again reminding them that the "door is open to you" and that "you have not had to pay dues and initiation fees to get and keep your job at Wilder " The letter was closed with the statement "There is no need to loose further wages while waiting for a satisfactory settlement of the present problem." The picket line remained for about 5 months within full view of persons passing in and out of the Company's establishment 39 Upon the basis of the foregoing testimony and in line with the Trial Examiner's credibility resolutions, the Trial Examiner finds that on October 12, 1965, the Union presented to the Respondent Company a claim to be recognized as the representative defined in Section 9(a) of the Act and that on such date and thereafter the Respondent Company knew that the Union represented an uncoerced majority40 of its em- ployees in a unit appropriate4I for the purposes of collective bargaining by reason of Walter Derse's examination of the union authorization cards, and because the officers of the Respondent Company observed and knew that a majority of its employees in such unit had ceased work and were on a peaceful picket line patrolling the Company's premises.42 Thus unless the Respondent Company for some lawful reason was excused on October 12, 1965, from recognizing and bargaining with the Union as the statutory representative of its employees, it became so bound. "An employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support." N L R.B. v. Dahl- strom Metallic Door Co , 112 F.2d 756, 757 (C.A. 2). "Convincing evidence of majority support" was presented to the Respondent employer on October 12, 1965, when the Union offered for the employer's examination the valid union designations of a majority of its employees in an appropriate unit and when a majority of the employer's employees in such unit engaged in strike and appeared as a peaceful picket line at its premises The voluntary walk out of a majority of the employer's employees and their peaceful picketing thereafter stand in the record as unrebutted notice of the Union's majority status and a confirmation of the authenticity and uncoerced character of the union designations. 43 Nevertheless, although the Union reiterated its demand for bargaining by letters dated November 3 and 5 and December 27, 1965, and January 6, 1966, and filed a refusal-to-bargain charge on December 4, 1965, the record discloses no evidence that the employer advised the Union of the basis for its failure to respond to the Union's bargaining demand44 or that the employer sought to avail itself of the provisions of Section 9(c)(1)(B) of the Act 45 Under these circumstances, as was said in N.L.R.B. v Preston Feed Corporation, 309 F.2d 346, 351 (C.A. 4) ". . . it is a little short of absurd for an employer to express doubt as to representative status of a union when the majority of the employees had gone on strike under its guidance." When a doubt does not exist, a force, a defense of good-faith doubt is lacking in merit and is wholly superfluous Indeed it is sheer fiction to indulge the defense of good-faith doubt where doubt cannot exist46 as in this case Had the Respondent Company been inclined to accommodate the statutory purpose it either would have responded to the 38 Frank Tonkinson (Frank Tonkinson remained away from work several weeks after the strike commenced ) and Irving Hughson returned in January 1966. Charles Shaw followed in the latter part of March or early April Stempert , Ehre, and Hicks returned in the latter part of May 1966 Vandermark returned in June 1966 Hernsdorf returned for a day and a half in January 1966. 39 There is competent and credible testimony supporting a finding that all the Derses in passing to and from the Company 's establishment had an opportunity to observe the picketing commencing on October 12, 1965 and the employees on the picket line. 40 The record is barren of any competent credible evidence that on October 12th or 13th any of the 13 card signers were unlawfully coerced into signing the union authorization cards or joined the picket line because of unlawful coercion. 41 If a good-faith doubt as to the appropriateness of the unit were claimed by the Respondent employer, such claim would not lie since a good -faith but erroneous doubt as to the appropriateness of the unit is not a defense to an otherwise meritorious charge of a refusal to bargain. Southland Paint Company, Inc., 156 NLRB 22, Owego Street Supermar ;ets, Inc 159 NLRB 1735. 42 Derse testified that Cohen produced " probably fifteen authorization cards (two were blank) at the October 12th demand. Deese reported to the officers on October 14, 1965 that 10 or 11 employees were on strike The Respondent conceded that 11 employees walked out of the plant on October 12th . Employee Munoz credibly testified that while the i l pickets were on the picket line on October 12th , the picket line was observed by at least one Derse . Hissam credibly testified that when the I 1 employees ceased work and left the plant they all commenced peacefully picketing with signs reading "On Strike . Textile Workers Union of America " and that while the 11 were picketing all the Derses went "by " 43 All of the union authorization card signers appeared on the picket line. 44 On December 2, 1965, Union Representative Jack Rubenstein sent the following letter to the employer Because of my inability to arrange a conference for the purpose of receiving recognition and entering into collective bargaining with your company which represents the majority of your employees, proof of which has been presented to you, I have found it necessary, at this time, to bring charges against your company for refusal to recognize the union 's majority position in the plant. Likewise I called the legal firm whose address you gave us, namely Friedlander, Gains & Ruttenberg, 221 W 57 Street, and spoke to Mr. Ruttenberg I was unable to get any positive commitment from him regarding our union 's recognition or as to any positive statement as to your company's willingness to sit down and meet with the union The company's failure to act in accordance with the provisions of the law which requires the company to recognize the union representing the majority of the company's employees leaves the union with no other recourse but to proceed with the charges as filed. 45 Section 9(c)(1)(B) of the Act provides for the filing of a petition "by an employer , alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section,.. " 46 A showing of doubt requires more than an employer's mere assertion of it and more than the proof of the employer's subjective state of mind Doubt must be proved by objective considerations Cf Laystrom Manufacturing Co , 151 NLRB 1482, 1484 Objective facts in the instant case do not furnish a reasonable basis for any doubt 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's request by putting to rest its purpose for ignoring the Union's demand47 or it would have availed itself of Section 9(c)(1)(B) of the Act. Having done neither, the Respondent Company depicted an absence of good faith and a disposition to avoid the Act's directives Rather the employer strove to test its employees' economic ability to foist union recognition upon it even though it well knew that its employees had designated the Union as their statutory bargaining represen- tative. Thus its chosen course of conduct was a cause of industrial conflict and ran counter to the purposes of the Act to eliminate the causes of industrial strife The Respondent Company argues that its chosen course of conduct was not unlawful. The employer claims that it "has the statutory right to reject union authorization cards as proof of majority status and has the right to withhold recognition until the Union shall have been certified pursuant to an election conducted by the National Labor Relations Board X48 But "[t]here is no absolute right vested in an employer to demand an election " N.L.R.B v Tnmfit of California, 211 F.2d 206, 209 (C.A. 9), accord N.L.R.B v Nelson Mfg. Co., 326 F 2d 397, 399 (C A 6) 49 "The Act is clear in intent . . that election and certification proceedings are not the only method of determining majority representation " L B Hartz Stores, 71 NLRB 148, 871, IOB v. Los Angeles Brewing Co., 183 F.2d 398, 405 (C A. 9). Moreover, the argument of the Respondent Company overlooks the salient and distinguishing fact that in the instant case not only was the majority status proved by valid union authorization cards but the majority status was positively proved by the strike and peaceful picketing by a majority of the employees in an appropriate unit. Such a showing of majority support constituted a designation of the Union as the bargaining representative of the Respondent Company's em- ployees within the meaning of Section 9(a) of the Act and was as legally binding upon the Respondent as if the Board had certified the results of an election conducted in conformity with Section 9(c) of the Act. The Supreme Court has said in United Mine Workers of America v Arkansas Oak Flooring Co , 351 US 62, 71 " . Section 9(a), which deals expressly with employee repre- sentation, says nothing as to how the employees' representa- tive shall be chosen. See Lebanon Steel Foundry v NL.R.B., 76 U S App D.C. 100, 103, 130 F 2d 404, 407."50 The statute "leaves open the manner of choosing" the bargaining representative Id., 74. When a choice of bargaining agent has been made which satisfies the requirements of Section 9(a) of the Act an employer may not test the economic strength of his employees by provoking or prolonging a recognition strike. There is no doubt that the Respondent employer could have lawfully recognized and bargained with the Union. "That being so, there is no reason why the employees, and their union under their authorization, may not under Section 13, strike, and, 47 " there must be some manifestation of doubt to the union." Skyline Homes, Inc v N L R.B , 323 F 2d 642, 648 (C.A 5). 48 In N L R.B v Dahlstrom Metallic Door Co., supra, 757, the Court said, "The contention that bargaining was not mandatory until the Board had accredited Local No. 307 as bargimng agent is frivolous." 49 In United Butchers Abattoir, Inc, 123 NLRB 947, 957, the 'Board said , "The right of an employer to insist upon a Board -directed election is not absolute " Stated another way the Board recently said in Metropolitan Life Insurance Company, 156 NLRB 1408 A representative proceeding is not a prerequisite to the validity of a bargaining order 50 The following language appears on 407 under Section 7, peacefully picket the premises of their employer to induce it thus to recognize their chosen represen- tative " United Mine Workers of America v Arkansas Oak Flooring Co., supra, 75. The strike and peaceful picketing on October 12, 1965, were lawful5 i and the employees' choice of the Union by signed designations and the participation in strike and picket line activities satisfied the requirements of Section 9(a) Hence it must be conceded that the Union represented a majority of the Respondent Company's employ- ees in an appropriate unit "Under [Sections 7 and 9(a)] and by virtue of the conceded designations of the Union, the employer is obligated to recognize the designated union " United Mine Workers of America v Arkansas Oak Flooring Co., supra, 75. Where, as here, the employer entertains no reasonable doubt either with respect to the appropriateness of the proposed unit or the Union's representative status, and seeks a Board-directed election without a valid ground therefor, he has failed to fulfill the bargaining requirements under the Act Snow and Sons, 134 NLRB 709, 710 The Trial Examiner finds that by its refusal to recognize and bargain collectively with the Union on October 12, 1965, and thereafter the Respondent Company violated Section 8(a)(1) and (5) of the Act and that the strike which resulted therefrom was caused and prolonged by said unfair labor practices and the strike was an unfair labor practice strike IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY The Board has said The Board has a particular duty under Section 10(c) to tailor its remedies to the unfair labor practices which have occurred and thereby effectuate the policies of the Act Thus, "depend [ing] upon the circumstances of each case," the Board must "take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice " [H W Elson Bottling Co., 155 NLRB 714, 715.1 "To recreate the conditions and relationships that would have been had there been no unfair labor practice" in the instant case would mean literally that the status quo must be restored as of a date immediately preceding the time when the The Wagner Act requires no specific form of authority to bargain collectively . Authority may be given by action as well as words Not form , but intent , is the essential thing The intent required is merely that the union or other organization or person act as employees ' representative in collective bargaining This intent has been found from participating in a strike vote taken by the union, a strike called by the union , and acceptance of strike benefits It is only necessary that it be manifested in some manner capable of proof, whether by behavior or language Si Where a meritorious 8(a)(5) charge is filed an 8 (b)(7)(C) charge will not lie See International Hod Carriers Building and Common Laborers Union ofAmenea, 135 NLRB 1153, 1166, fn 24 ARTHUR F. DERSE, SR. 223 Respondent Company first determined to deny recogntion to the Union. At that time all strikers were gainfully employed They were performing their usual job assignments On that date had the Respondent Company assumed its obligation to bargain, it is reasonable to assume that the strikers would have remained at work and collective bargaining would have had a chance to succeed. However, by reason of the Respondent Company's unfair labor practices this chance for collective bargaining to succeed will occur after the Company by its unfair labor practices has reduced the Union's bargaining strength and dissipated the effect of its strike. Thus the re-creation of the identical conditions and relationships as they existed had the unfair labor practices not been committed appears to be impossible of achievement, but there is left the probability of depriving the Respondent Company in part of the advantages it has unlawfully gained, one of which has been the reduction of the Union's bargaining power to almost nothing. By its unfair labor practices the Respondent deprived its employees of the means of dealing with their employer with a measure of equality, discouraged collective bargaining, and rendered impotent their utilization of collective action. In this the Respondent flouted the purposes of the Act ". . the avowed and interrelated purposes of the Act are to encourage collective bargaining and to remedy the individual worker's inequality of bargaining power ." N.L.R.B v Hearst Publications, Inc., 322 U S 111, 126. A bare order to bargain in this case will only serve to acknowledge the formalities of the law while the Respondent retains full possession of the fruits of its violations Cf Montgomery Ward & Co v. N.L.R.B., 339 F 2d 889, 894 (C.A. 6). Moreover, it is the Respondent who should bear the brunt of the disentanglement of the consequences of its unfair labor practices, since it has caused the chain of events which resulted in the deprivation of rights flowing to the Union and its employees An appropriate remedy contemplates that the employer shall not retain the fruits of his unfair labor practices. Beacon Piece Dying & Finishing Co., Inc., 121 NLRB 953, 963. See also N.L.R.B. v Armco Drainage & Metal Products, Inc., 220 F.2d 573 (C.A. 6), Piasecki Aircraft Corporation v N.L.R.B., 280 F 2d 575, 591 (C A. 3), cert. denied 364 U.S. 933 A remedy which will "effectuate the policies" of the Act in this case calls for a restoration of the Union's bargaining power lost by reason of the Respondent Company's unfair labor practices. Hence, in order that to some extent the bargaining power of the Union destroyed by the Respondent Company's labor practices may be restored, and, in order that the unfair labor practice strikers who lost pay by reason of the Respondent Company's unfair labor practices may be reimbursed, and, in order to effectuate the policies of the Act, the Trial Examiner recommends, in addition to a bargaining order and the posting of notices, that the Respondent make whole each unfair labor practice striker for loss of earnings52 he has suffered by paying to him a sum of money equivalent to the amount he would have normally earned during any periods commencing on October 12, 1965 when his usual job assignments were performed by another employee until such time as the Respondent Company has complied with the Recommended Order herein, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, and shall include interest at the rate of 6 percent per annum, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In that a purpose of the Remedy is "to remedy the individual worker's inequality of baigarmng power" caused by the Respondent Company's unfair labor practices, it is further recommended that the Union be allowed to utilize the recommended backpay award as an item for negotiation. CONCLUSIONS OF LAW 1. The Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of the Act 2. The Respondent Wilder Mfg Co., Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. All production and maintenance employees of the Wilder Mfg. Co , Inc., employed at its Port Jervis, New York, plant, excluding all other employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. 4. At all times since October 12, 1965, the above labor organization has been, and now is, the exclusive representative of all the employees in the above appropriate unit, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5 By refusing to recognize and bargain with the Union on and after October 12, 1965, said Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act 6. The strike which commenced on October 12, 1965, was caused and prolonged by said Respondent's unfair labor practices and hence was an unfair labor practice strike. 7. 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 foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that the Respondent, Wilder Mfg. Co , Inc., its officers, agents, successors, and assigns, shall. 1. Cease and desist from (a) Refusing to recognize and bargain collectively with the Textile Workers Union of America, AFL-CIO, in the following appropriate unit: All production and maintenance employees of the Wilder Mfg. Co., Inc., employed at its Port Jervis, New York, plant, excluding all other employees, guards and supervisors as defined in the Act. 52 The Act does not specifically limit the Board's power to order backpay to any specific violation of the Act . Section 10(c) of the Act provides: If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practices , then the Board ... shall issue . . on such person an order requiring such person . . to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of the Act As unfair labor practice strikers , the strikers in the instant case are entitled to reinstatement. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act (a) Upon request, bargain with the Union as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, reduce it to writing and sign it. (b) Make whole each unfair labor practice striker for any loss of pay he may have suffered by reason of the said Respondent's unfair labor practices in accordance with the recommendations set forth in "The Remedy" herein. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant or necessary to the determination of backpay due and related rights provided under the terms of this Recommended Order (d) Post at its Port Jervis, New York establishment, copies of the notice attached hereto and marked "Appendix."53 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices- are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Recommended Order, what steps said Respondent has taken to comply herewith.5 4 IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found in this Decision APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL NOT refuse to bargain collectively with the Textile Workers Union of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is- All production and maintenance employees of the Wilder Mfg Co., Inc. employed at its Port Jervis, New York plant, excluding all other employees, guards and supervisors as defined in the Act WE WILL make whole each unfair labor practice striker for any loss of pay he may have suffered by reason of our unfair labor practices. WILDER MFG CO, INC (Employer) Dated By 53 In the event that this Recommended Order be adopted by the Board, the words "A DECISION AND ORDER" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a decree of the United States Court of Appeals enforcing an order" shall be substituted for the words "a Decision and Order." 54 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director , in writing , within IO days from the date of this Order, what steps the Respondent has taken to comply herewith " (Representative) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this Notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, Fifth Floor Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500.