Tiidee Products, Inc.

TIIDEE PRODUCTS 705 value of the minimum additional benefits, if any, including wages, which is reasonable to conclude that the Union would have been able to obtain through collective bargaining with the Respondent, for the period commencing with the Respondent's formal refusal to bargain collectively . and continuing until paid." Such recommended remedy seems ultimately fair and reasonable under the circumstances of this case" and is recommended by the Trial Examiner The compensation shall be computed on a quarterly basis and shall bear interest at 6 percent per annum , computed quarterly. In that the Act envisions that industrial disputes may be best settled by collective bargaining in good faith between the parties and is dedicated to the encouragement of the practices and procedures of collective bargaining, and, since the minimum additional benefits, if any, which it is reasonable to conclude that the Union would have obtained through collective bargaining, with the Respondent may be subject to future controversy, it is recommended that the subject matter relating to minimum additional benefits be referred to collective bargaining between the parties in this connection the Respondent will be deemed to have complied with this recommended remedy when the Respondent, in good faith, makes a reasonable offer, in which due consideration is given to the minimum additional benefits, if any If dispute arises as to the reasonableness of the offer, it is recommended that it be resolved in the compliance stage of this proceeding. Failing in such offer the Respondent shall be held to adhere to the strict terms of this recommended remedy. The purpose of the recommended remedy is to compensate for the loss of the individual worker's bargaining power which obtained to him by reason of his collective association and was rendered impotent by the Respondent's unfair labor practices As noted above, collective bargaining after employee support has been unlawfully dissipated is an exercise in futility. Under such circumstances the remaining "sticks" if any are easily broken 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 resort to collective action. This was wrong for "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 , Incorporated, 322 U.S. III, 126. The remedy herein recommended corrects in part that wrong and gives vitality to the right. It serves to effectuate the purposes of the Act which was the intent of Congress Drawn to deal substantially with substantial things, the National Labor Relations Act has been from the beginning, it must continue to be, consistently with its avowed purpose and the language employed in the Act, broadly construed and as broadly given effect to cope with and prevent the mischiefs it was designed to meet and do away with N L R B v. Metallic Building Company, 204 F.2d 826, 828 (C A. 5), cert denied 347 U.S. 911. "Of significance is the court's observation in N L R B v Southbridge Sheet Metal Works. Inc. 380 F 2d at 856 "the cynic may well observe that respondent's tactics have successfully held off collective bargaining for at least three years" Tiidee Products, Inc. and International Union of Electrical , Radio & Machine Workers, AFL-CIO-CIC.' Cases 9-CA-4440, 9-CA-4488, 9-CA-4536, and 9-CA-4563 February 24, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 28, 1968, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled cases, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Union and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent Tiidee Products, Inc., Dayton, Ohio, its officers, 'The Union has requested that the initials "CLC" be included in the designation of its affiliation In the absence of objections , we grant its request The Respondent filed a motion to reopen and consolidate these cases with Cases 9-CA-4618, 9-CA-4639- 2, and 9-CA-4710 We have considered the Respondent's motion and , finding no merit therein , hereby deny it As for the Respondent's contention of bias and prejudice on the part of the Trial Examiner, we have reviewed the record and find the contention without merit We find it unnecessary to pass upon the Charging Party's request that we make certain additional 8(aXl) findings Such findings, if made, would be cumulative in nature and would not affect the scope of our Order and Remedy herein because we have already provided a broad cease and desist order protecting all of the employees' Section 7 rights 'The second paragraph of the "Appendix" attached to the Trial Examiner's Decision is hereby amended to read as follows "This notice is posted pursuant to an order of the National Labor Relations Board issued after a Trial in which both sides had an opportunity to present evidence and arguments The Board found that we violated the National Labor Relations Act and has ordered us to inform our employees of their rights " 174 NLRB No. 103 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE and travel trailers and maintains its plant and principal place of business in Dayton, Ohio. During the past calendar year, the Respondent manufactured and shipped goods and products valued in excess of $50,000 directly from its plant in Dayton, Ohio, to points located outside the State of Ohio On the basis of the foregoing I find and conclude that the Respondent is an employer within the meaning of Section 2(6) and (7) of the Act GORDON J. MYATT, Trial Examiner. In Case 9-CA-4440 the original charge was filed on September 21, 1967,' by International Union of Electrical, Radio & Machine Workers, AFL-CIO (hereinafter called the Union) Amended charges in this case were filed on September 22 and October 23, respectively On November 14, Complaint and Notice of Hearing issued alleging that Tiidee Products, Inc. (hereinafter referred to as Respondent), had committed violations of Section 8(a)(1) and (3) of the Act by unlawfully interrogating employees about their activities on behalf of the Union, by threatening to cease operations if the Union became the employees' bargaining representative, by threatening to take reprisals against employees if the Union became their bargaining representative, by discriminatorily selecting employees for layoff, and by discriminatorily discharging employees because of their support of the Union. In Case 9-CA-4488 the original charge was filed by the Union on October 23, and amended charges were filed on November 6 and 30 On December 14, Complaint and Notice of Hearing issued based on these charges alleging that the Respondent committed additional violations of Section 8(a)(1) and (3) of the Act. This complaint alleged that the Respondent discriminatorily changed terms and conditions of employment of employee-supporters of the Union, that the Respondent discriminatorily selected employees for layoff, and discriminatorily discharged an employee for engaging in activities on behalf of the Union. On November 30, another charge was filed by the Union in Case 9-CA-4536, and on December 14, Complaint and Notice of Hearing issued. The Complaint alleged that the Respondent unlawfully refused to bargain with the Union as the certified representative of its employees in an appropriate unit. On December 22, the Union filed an additional charge in Case 9-CA-4563, and on December 29, Complaint and Notice of Hearing issued against the Respondent alleging further violations of Section 8(a)(1) and (3) of the Act. All of the above cases were consolidated for purposes of trial by an Order issued by the Regional Director for Region 9 on December 29. This matter was tried before me on January 16, 17, and 18, 1968, in Dayton, Ohio. All counsel and representatives were afforded full opportunity to be heard and to introduce relevant evidence. Briefs were submitted by all of the parties, and they have been fully considered by me in arriving at my decision Upon the entire record in these proceedings, including my evaluation of the testimony of the witnesses based on my observation of their demeanor and on the relevant evidence, I make the following. FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The Respondent is an Ohio corporation engaged in the manufacture of metal and plastic parts for mobile homes All dates herein refer to 1967, unless otherwise indicated 11. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio & Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Respondent's Refusal to Bargain The undisputed evidence shows that . the Union commenced its organizing campaign in July. A petition was filed on August l and the parties entered into an Agreement for Consent Election on September 1.2 The Agreement for Consent Election provided, in part SECRET BALLOT - An election by secret ballot shall be held under the supervision of the said Regional Director, among the employees of the undersigned Employer in the unit defined below, at the indicated time and place, to determine whether or not such employees desire to be represented for the purpose of collective bargaining . Said election shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the applicable procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election, and provided further that rulings or determinations by the Regional Director in respect of any amendment of any certification resulting therefrom shall also be final. [Emphasis supplied ] 6. OBJECTIONS, CHALLENGES, REPORTS THEREON. - Objections to the conduct of the election or conduct affecting the results of the election, or to a determination of representatives based on the results thereof, may be filed with the Regional Director within 5 days after issuance of the Tally of Ballots . . The Regional Director shall investigate the matters contained in the objections and issue a report thereon If objections are sustained, the Regional Director may in his report include an order voiding the results of the election and, in that event, shall be empowered to conduct a new election under the terms and provisions of this agreement at a date, time, and place to be determined by him. If the challenges are determinative of the results of the election, the Regional Director shall investigate the challenges and issue a report thereon. The method of investigation of objections and challenges, including the question whether a hearing shall be held in connection therewith, shall be 'The petition (Case 9-RC-7368), the Agreement for Consent Election, the Tally of Ballots, Respondent' s Objections to the Election , and the Report on Objections and Certification of Representative are in evidence as G C Exhs l(hh) through I(II) TIIDEE PRODUCTS 707 determined by the Regional Director ; whose decision shall be final and binding. [Emphasis supplied.] The appropriate unit for purposes of collective bargaining was described as: All production and maintenance employees at the Employer's Dayton, Ohio, plant , excluding all office clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act. On September 14, a secret-ballot election was held which resulted in 19 votes for the Union , 6 against, and 3 challenged ballots.' The Respondent filed timely objections to the election, stating in essence: ( 1) that the Union distributed a leaflet to the employees on the day of the election "which specifically changed the election issues established by [the] NLRB"; and (2) that the Union violated the Consent Agreement by challenging employees who were on the eligibility list. The Regional Director conducted an administrative investigation, and on the basis of his findings, issued a report overruling the Respondent's objections and certifying the Union as the exclusive bargaining representative of the employees. On November 10, the Union's attorney directed a letter to Hollander, president of the Respondent , requesting certain information deemed necessary to enable the Union to engage in collective bargaining and requested that a meeting be arranged between the parties as soon as possible. On that same date the Union' s attorney addressed a letter to the Respondent ' s labor consultant suggesting that the parties meet to commence negotiations for a collective-bargaining contract on November 15. Although the Respondent did not reply to either letter, two representatives from the Union, Reese and Brown, and two members from the employees ' committee went to the Respondent's plant on November 15, for the purpose of commencing negotiations. Hollander refused to engage in collective bargaining and suggested that the union contingent contact his labor consultant. On November 20, the union president, Lacy, forwarded a letter to Respondent' s labor consultant renewing the Union's request for negotiations and for the information previously sought. On November 22, the Respondent' s labor consultant advised the Union's attorney in a letter that the Respondent would not comply with the certification issued by the Regional ' - Director and that the Respondent considered that "the Regional Director acted arbitrarily and capriciously by denying the employer his right to due process." In this letter the labor consultant advised the Union that he could not meet with them "until all litigation is disposed of." The Union renewed its request for negotiations in letters directed to the Respondent's representative on November 27 and December 18." Hollander was called as an adverse witness by the General Counsel and examined under Rule 43(b). Hollander admitted that he had not bargained with the Union and would not do so because the circulars passed out by the Union on the morning of the election violated, in his judgment, the Board's "24-hour" rule and gave the Union an unfair advantage. He also stated that he would not bargain while the charges were pending against the Respondent . It was also contended that the Regional Director denied the Respondent due process by making an 'The Tally of Ballots indicates that there were approximately 28 eligible voters in the unit 'The Union submitted a draft of a collective-bargaining agreement and proposals' covering pension , health, and life insurance benefits. The Respondent made no reply to the Union's proposals. administrative determination concerning the objections to the election rather than affording the Respondent the opportunity of a hearing. The Respondent' s assault on the validity of the Regional Director' s certification of the Union as the exclusive bargaining representative of the employees is without merit . The objections were investigated and on the basis of the results of that investigation , a determination was made. Under the very terms of the Agreement for Consent Election the method of investigation , including the question of whether a hearing shall be held, was a matter which rested solely within the discretion of the Regional Director, and his decision in this regard was final and binding on the parties. It is well settled that a Regional Director' s Decision in a consent-election situation will stand in the absence of evidence of "fraud, misconduct, or such gross mistakes as to imply bad faith." Sumner Sand & Gravel Company, 128 NLRB 1368, 1371, enfd . 293 F.2d 754 (C.A. 9). Beyond the bald assertion that the Regional Director acted arbitrarily and capriciously, the Respondent has failed to come forth with any evidence whatsoever that would even suggest that the Regional Director' s determination should be questioned. Nor does Respondent' s claim that it was denied due process alter this conclusion. The Union freely acknowledged having engaged in the conduct which the Respondent cited as objectionable , and there was no factual issue in contention . The claim that a hearing is required under these circumstances is frivolous. "The Constitution protects procedural regularity , not as an end in itself, but as a means of defending substantive interests" Fay v. Douds, 172 F.2d 720, 725 (C.A. 2). As the Regional Director' s Report on Objections clearly indicates, the Respondent's contentions were thoroughly presented during the administrative investigation and considered in the Report itself. Thus it is evident that a hearing in these circumstances , where no factual dispute existed, would be nothing more than "a senseless and useless formality." Air Control Products, Inc v. N.L.R.B., 335 F.2d 245, 249 (C.A. 5) See also Carlisle Paper Box Company v . N.L.R.B., 398 F 2d (C.A 3). Accordingly , I find that the Regional Director's Certification of Representative is valid , and is final and binding on the Respondent . It follows, therefore , that the Respondent has engaged in and is engaging in conduct in violation of Section 8(a)(5) of the Act by refusing to bargain with the Union. In addition to questioning the validity of the Certification, the Respondent's letter dated November 22, stated that it would not meet with the Union "until all litigation is disposed of." Pending Board proceedings or pending unfair labor practice charges do not relieve an employer of his statutory obligation to bargain with the collective-bargaining representative of his employees, and the refusal to do so until the proceedings have been disposed of is clear evidence that the employer is seeking to avoid the obligations imposed by statute. I find therefore that the Respondent's refusal to meet with the Union until pending litigation is disposed of constitutes a separate violation of Section 8(a)(5) of the Act. Greer Stop Nut Company , a division of Kaynar Manufacturing Co., Inc., 162 NLRB No. 47; Kit Manufacturing Company, Inc., 142 NLRB 957, 971. I also find that the Respondent committed a further violation of Section 8(a)(5) of the Act by ignoring the Union' s request for information pertaining to the employees. The information sought by the Union dealt with existing wages and fringe benefits , and the request 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for this data by the bargaining representative is presumptively lawful. Weber Veneer, & Plywood Company, 161 NLRB 1054, 1056; Curtiss- Wright Corporation, Wright Aeronautical Division, 145 NLRB 152, enfd. 347 F.2d 61 (C.A. 3). The Respondent offered nothing to rebut this presumption, but rather simply refused to deal with the Union in any manner. In these circumstances, the conclusion that the Respondent further violated Section 8(a)(5) is inescapable. B. The Other Unlawful Conduct 1. The events prior to the election The Union's efforts to organize the employees began in July. Employee Tackett contacted Reese, !a representative of the Union, and arranged to have her meet with several of the Respondent's employees at Tackett's home. Shortly after this meeting Tackett and the employees who attended began to distribute authorization cards and solicit signatures from their fellow employees Later that same month, the Union intensified its organizational drive by handbilling the employees in front of the Respondent's plant. The evidence indicates that this was the first time that the Respondent's officials became aware of the Union's efforts. A few days after the handbilling, Respondent's president, Hollander, told Donald Gearing5 that he did not like unions and "if they got in, he would close the doors" and he and Gearing "would go fishing." According to Gearing, Hollander told him to listen around the plant for talk about the Union. Gearing testified that on another occasion in July, Hollander spoke to him about the Union and stated, "that if the Union got in, only the `dedicated' employees would work and all of the rest [of the employees] would go." Hollander on the other hand categorically denied all statements attributed to him by Gearing, and testified that it was Gearing who came to him shortly after the handbilling incident and stated that he (Gearing) would quit if the plant became unionized. Having observed these witnesses while testifying, and considering Hollander's intransigent and hostile attitude toward the very concept of union representation for the employees and his actions following the representation election, I credit the testimony of Gearing. Hollander's statements to Gearing were consistent with the course of conduct adopted by the Respondent in opposing the Union both during the organizing campaign and after the election. Hollander also spoke to employee Haywood about the union activity in the plant. Haywood testified that Hollander told him in August that "if there is anything that you can find out [about the Union], I would appreciate it," and that "it would never be forgotten." According to Haywood, Hollander promised that he would be "taken care of," and that he (Haywood) had been in enough trouble and Hollander didn't want to see him get into any more 6 Haywood testified that he later reported to Hollander that there were six employees on his side. According to Haywood, Hollander replied that he thought that the people on the assembly table were responsible for the trouble. 'Gearing is alleged by the General Counsel to be a supervisor His status is treated, infra, in this Decision 'Haywood apparently had served a prison term prior to working for the Respondent. Hollander denied asking Haywood to ferret out information about the union activity among the employees. He stated that Haywood volunteered to do so, and he cautioned him to mind his own business. In view of my impression of Hollander, and considering his overall conduct in opposing 'the Union, I credit the testimony of Haywood.' Employee Linton credibly testified that Melvin Hershey, also alleged to be a supervisor," told him, shortly after the Union handbilled the plant, that the Respondent would not recognize a union and would close down and go fishing, During this conversation Hershey asked Linton if he knew anything about the Union. Linton testified that prior to the election, Hershey called him at home on' the telephone and asked him "to talk up the Teamsters" among the employees, and to try to find out which of the employees would object to this Union.' Hershey, who appeared as a witness, denied discussing the Union with Linton, but did acknowledge that he was aware that Linton had formerly been a member of the Teamsters because the employee volunteered that information. On the basis of my observation of these witnesses, [find and conclude that Hershey did in fact make these statements to Linton. On August 1, a meeting of approximately 12 of the female employees was held in Hollander's office. Gearing complained to Hollander about the women being off the floor because it was interfering with production. He was told not to worry about it as the employees were talking about the Union. When the meeting was concluded, Hollander came out of the office and told Gearing that the employees had voted 11 to 1 to get rid of him. Hollander informed Gearing that he "pushed them too hard" in their work and did not get along with people. Gearing subsequently gathered his tools and left the Respondent's plant. On August 5, employee Tackett was injured in an automobile accident and remained home for approximately 5 weeks thereafter. During her convalescence Tackett acted in a liaison capacity between the employees and the Union. While at home Tackett received a visit from Hollander, who inquired as to how she was getting along and if she needed any financial assistance. Hollander gave Tackett $50 to help her along. According to Tackett, Hollander indicated that it was a "gift" from him, but that if she wanted to pay it back, she could do so at her leisure. During the latter part of August, Mary Burgher, another alleged supervisor,'" began to solicit signatures from the Respondent's employees on a petition which she was circulating in the plant. She was accompanied on this mission by Ward, another senior employee. The petition was actually a poll by which the employees were to indicate whether or not they wanted an election to determine if they should be represented by a union. In each case the employee was informed by Burgher to sign his or her name and indicate yes or no. Employees Linton, 'In addition to the request by Hollander, Haywood also testified that Gearing asked him to find out all that he could about the Union and report back Haywood stated this request was made in July, and he refused to comply with it 'As in the case of Gearing, the Respondent denied that Hershey was a supervisor His status will likewise be determined subsequently in this Decision. 'It is not clear in this record whether Hershey made this request during their initial conversation in July, or at some subsequent date. "Burgher's supervisory status is also in contention, and will be dealt with subsequently herein TIIDEE PRODUCTS Wells, Virgil Brummitt, William Brummitt, and Graham signed the petition and placed "no" behind their names." Several employees refused to sign the petition. These employees were Sawmiller, Morgan, Haywood, and Venters Venters testified that when she refused to sign, Burgher told her that she had to do so. However, Venters remained adamant in her refusal. Employee Cash testified that when she was approached by Burgher, she indicated that she did not care one way or the other about the election and did not sign the petition. Another employee, Cullars, informed Burgher that she wanted more time to think the matter over. She was not approached thereafter by Burgher concerning the petition. Employee Reagan testified that Burgher signed her name to the petition and indicated "no" after her name. Reagan thought the matter over and subsequently went to Burgher and insisted that her name be erased. Employee Wilson signed the petition at the request of Burgher, but subsequently went to Burgher and asked that her name be stricken. According to Wilson, Burgher replied that she (Burgher) was proud to sign her name on the petition.12 Tackett, at home convalescing while the poll was being taken, was contacted by telephone by Burgher and asked if she would sign the petition. Tackett was noncommittal in her reply and there is no indication that her name was attached to the petition.' 3 Although Hollander disclaimed any knowledge of the petition which Burgher had been circulating, the unrefuted evidence shows that Burgher took the petition into Hollander's office after she had secured the signatures. Burgher testified that she circulated the petition because employee Linton was talking about the Teamsters Union and the Charging Union had passed out literature informing employees that a Board election would be held at the plant. Burgher claimed that she conducted the survey to determine how the employees felt about the matter, and that she intended to give the petition to the Board. After she had polled the employees, Burgher questioned a number of them individually about the Union. The unrefuted testimony shows that on August 31, Burgher asked employee Wells how he felt the Union's campaign was going. Burgher told Wells that she was going to vote against the Union. In another conversation with Wells shortly before September 14, Burgher told him that someone in the shop represented the union members and she wondered who it was. She asked Wells if he was the person, and when he denied it, Burgher stated that she was only "kidding." During the week preceding the election on September 14, Burgher asked employee Reagan her views on the outcome of the election. This employee told Burgher that she was going to "kill Burgher's `no' vote." During this same week Burgher approached employee Venters and asked her who was going to be the observer for the Union at the election. Burgher also asked this employee if she knew who started the Union. On the day of the election Burgher sought to get the name of the union observer from employee Wilson. When Wilson replied that she was going to be the observer, Burgher refused to believe her William Brummitt testified that he was told by Linton that Hershey wanted all employees in the plastics department to sign "no." "There is no indication in the record that Burgher ever deleted Wilson's name from the petition. "During this same conversation Burgher asked Tackett if she knew who among the employees started the union activity and what, if anything, she knew about the Union. In addition to remaining noncommittal about the petition, Tackett professed to know nothing about the Union 709 Burgher also played a minor role in conversations between Hollander and several employees. Sometime during the latter part of August, employee Jones asked Burgher if she could see Hollander. After Burgher determined that it was possible, she accompanied Jones into Hollander's office. Jones was upset and threatened to quit her job because she was having difficulty with several of the employees in the plant. Hollander asked Jones if she knew who started "this." Jones replied that no one had said anything about the Union to her. Hollander then stated that he had not mentioned the word union, whereupon Jones replied, "No, you didn't, but I know what you mean." Hollander then turned to Burgher and said, "She'd be surprised if she knew, wouldn't she, Mary9" Burgher replied in the affirmative Hollander then informed Jones that "We know a lot more than you think we know." Hollander assured Jones that matters would work out in the plant, and he asked her if she was aware of what had happened to Gearing. When Jones indicated that she had heard from the other employees that Gearing had been fired, Hollander stated, "We have our own way of taking care of troublemakers."' A week before the election Burgher came to employee Cash's machine and instructed her to go to Hollander's office. Burgher followed Cash into the office. When they arrived, Hollander informed Cash that he had heard from Burgher that she was brooding over the fact that she had not been given a raise in pay. Hollander told Cash that he could not give her a raise while the matter with the Union was pending because it would look as if it were a bribe. Hollander promised her a 10-cent-an-hour increase once the "trouble" was over. As Cash was leaving Hollander's office he told her that the union people were a bunch of "damn Communists." Hollander also showed Cash some of his records indicating the amount of profit he was making on table legs which were being produced in the plant. Later that day, Hollander stopped by Cash's machine and asked her if she had learned anything from their conversation that morning. When Cash indicated that she had, he replied, "Well, some people think that grass is always greener on the other side, until they get there."15 2. The events after the election As previously noted, the election was held on September 14, and the Union received 19 votes with 6 votes cast against union representation and 3 ballots were challenged. Tackett was the employee observer for the Union during the election. After the Board agent announced the results to the assembled employees, Hollander grabbed Tackett's arm and said, "Do you mean . .. after all that I have done for you! I gave you $50 to save your house " Hollander then asked Tackett if she had anything to say to the employees and repeated this statement until Tackett then turned and announced the results of the election again." The following day when the employees reported to work, shortly after 7:30 a.m., they found the plant locked. A notice was posted on the door stating that the doors "Jones' version of this conversation was unrefuted in the record "Cash's testimony concerning her conversation with Hollander is not controverted in the record. "Hollander testified that the Board agent made his announcement in such a low tone that he was not certain that the employees heard the results. According to Hollander, he then asked Tackett to repeat the tally to the employees, and he denied grabbing her arm or expressing anger I do not credit Hollander's version of this incident 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not be opened until 7:45 a.m. Normally the doors to the plant were open when the employees arrived. When employees Tackett and Virgil Brummitt reported to the plastics department, they were instructed by Hershey to grind up the 10-foot sections of hoses which the employees intended to prepare for shipment. Both Tackett and Brummitt protested that the hoses were not defective and should not be destroyed." Hershey, however, insisted that the hoses had to be scrapped. After the hoses were destroyed, Hershey informed Tackett that he had no work available and sent her to Hollander. At approximately 10 a.m. Hollander laid Tackett off, citing lack of work as the reason. He instructed her to contact him by telephone the following Tuesday to determine whether there was work available. When Tackett called as instructed, she was told that the Respondent had no work for her. The following day Tackett again attempted to contact the Respondent, but Hollander refused to talk to her and instructed his secretary to inform Tackett that there was no work available. Tackett was recalled on September 25, and worked for approximately a week. She was subsequently laid off again on September 29, because there was no work, The following week when Tackett went to the Respondent's office to pick up her paycheck, Hollander asked her to repay the $50 he had given her in August. When Tackett said that she thought it was a gift, Hollander indicated that it was once a gift, but that he did not consider it to be such now. He told Tackett that she was an "unappreciative employee." Employee Virgil Brummitt was also laid off on September 15 at approximately 11 a.m. He was informed that there was no work available and he was instructed to remain in contact with the Respondent. Brummitt remained in layoff status for several weeks and was then recalled. After working for approximately 7 days, Brummitt was laid off again and then recalled. Employee Morgan was laid off on September 15 at approximately 3:30 p.m. because of lack of work. Morgan was polishing castings at the time of his layoff, and he testified that there was sufficient work to carry him through the following day. Morgan contacted the Respondent's office the following Tuesday and was told that there was still no work available. He was instructed to remain in contact with the Respondent. Morgan did not contact the Respondent for more than a month, and when he did, he was informed that there was only a single day's work available.1e The day after the election, the results were the topic of conversation around the Respondent's plant. The uncontroverted testimony indicates that Burgher approached employee Jones and asked her how she had voted in the election. Jones replied that she had voted "the right way." All of the employees testified that a sign was posted by the timeclock stating, "I know who." There was no signature attached to the bottom of the sign. Burgher testified that she put the sign up because someone had jammed the timeclock. According to Burgher, she wanted to indicate that she knew who was responsible. In view of the Respondent's continuous acts of harassment and "Tackett testified that the 10-foot sections were left from a run of hoses which were originally 25 feet in length She stated that the Respondent had a request for 15-foot hoses and filled this order by cutting the desired length from the longer section of hoses. Tackett stated that the remaining sections could not be defective, and that they should have been prepared for shipment "Hollander testified that he had attempted to get in touch with Morgan during that month to recall him to work, but was unable to do so. retaliation against the employees after the election, I find Burgher's explanation entirely unpersuasive. I find, therefore, that the sign was posted to indicate that the Respondent's officials were aware of the identity of the employees who supported the Union. On September 18, employee Reagan reported to work and was informed that she would not be allowed to work because of an oil leak in her machine. Hollander told Reagan that he would have to order a part for the machine. Reagan testified that in the past when her machine was broken, she was allowed to work on other machines or was given other duties in the plant. On September 20, Reagan was recalled and worked until her discharge the following day." On September 19, when employee Sawmiller reported to work she was informed by Hollander that her machine had broken down, and that she would be laid off until the machine was repaired. '" Sawmiller contacted the Respondent the following day and was informed that her machine was still not repaired. She was not recalled to work until September 26. Sawmiller worked several days thereafter and then was laid off again due to lack of work. On October 6, Sawmiller returned to the plant to pick up her paycheck. Hollander noticed that she was not feeling well and suggested that she see a doctor. Later that day, Sawmiller called Hollander and informed him that she was 3 months pregnant and that she had complications with a kidney infection. Hollander told the employee to call him back when she was better. On October 31, Sawmiller called Hollander and was informed that it was the Respondent's policy not to allow pregnant women to work in the shop, therefore she was discharged.21 On September 20, Hollander laid off employees Cash, Cullars, and Graham. In each instance lack of work was cited as the reason. Cash was laid off at noontime and the Respondent never recalled her. Cullars was recalled on September 25, and she was laid off several times thereafter. The record does not indicate when Graham was recalled, but this employee testified that she was recalled and laid off many times after September 20, and that each time she was laid off, she was informed that there was no work. On September 20, Hollander came into the plant and accused employee Wilson of having one of the male employees unload a truck forher. Hollander told Wilson that if she wanted anything done she was to come to him or to Burgher. He concluded the conversation by telling Wilson "You better watch your step, and your mouth, too." At the end of the workday, Wilson was told by Hollander not to come to work the next day because there was none available She was instructed to contact him the following Monday. Wilson testified that there was work available in the plant at the time of her layoff, and that she had been recalled and laid off several times after September 20 and that on each occasion there was work available in the plant. "The circumstances surrounding Reagan's discharge will be discussed later herein 'Sawmiller did not work on September 18, but testified that her machine was operating correctly the preceding Friday. 'Hollander testified that the Respondent initiated this policy for the safety and benefit of female employees who became pregnant Sawmiller and Venters credibly testified that at least two other female employees were allowed to work in the plant while they were pregnant . Venters stated that she overheard Burgher tell one of these employees that she could work until her 6th month of pregnancy , and that the employee wore maternity clothes while working in the plant. TIIDEE PRODUCTS On September 21, Ward came over to the machine that Reagan was operating and commented that it was "a shame the way the employees had done the Respondent." Reagan then accused Ward of being in favor of the Union. and this accusation so upset Ward that she spoke to Burgher about it. Burgher and Waid went into the Respondent's office and reported the incident to Hollander. Hollander came out of his office and motioned all of the employees over to Reagan's machine. According to Reagan, Hollander would not allow her to speak and accused her of having a big mouth and threatened to throw her out of the plant. He had Ward repeat what Reagan said to her, and he then fired Reagan for talking about the Union while on the job. Venters, who was standing in the group of employees, testified that Hollander then turned to her and stated "that goes for you, too." According to Venters, Hollander then told her to "get [her] ass back to work and that [she] had raised enough hell and started enough rumors." Venters testified that Hollander stated, "You are making your bed and I will see that you pay for it." He then slated that he had been in "this mess before." Hollander acknowledged that he fired Reagan because she was creating friction and she discussed the Union on the job. He admitted that he ordered Venters back to work, but denied swearing at her. Ward and another employee (Wilson) testified concerning this incident and gave a version substantially similar to that of Hollander. All witnesses agreed that Hollander fired Reagan because she was discussing the Union while on the job and that he ordered Venters back to work. The only area of conflict concerns the exact statements made by him while doing so. Considering the entire pattern of Hollander's conduct, both prior and subsequent to the election, and considering the prominent role that Ward played in unlawful poll of the employees in August, I am persuaded that Hollander made the statements attributed to him by Venters. Consequently, I credit her version of this incident. On October 10, employee Jones was laid off because Hollander claimed that a shipment of cable was lost and he had no other work for her. Jones testified that in the past when she did not perform her usual duties, she was assigned work elsewhere in the plant.22 During the week of October 16, Jones and Venters were working at the assembly tables. Burgher instructed Venters to operate a machine which fed parts to Jones for assembly. Shortly after Venters began running the machine, she discovered that she was catchmg up with Jones and that they were failing to assemble the required parts. Because of this Venters returned to the assembly table and began working with Jones on her own initiative. Burgher questioned this and called Hollander out into the plant When the employees explained the difficulty, Hollander told them that he would allow the employees to work together at the table provided they produced 125 parts a day. In the past these employees jointly produced 75 parts each day. Several days later Hollander came into the plant and asked Jones and Venters if they were producing the 125 parts that he insisted upon. The employees informed him that this was impossible and that they were only able to produce 100 parts. Hollander then demanded 125 parts "or else." On October 21, Venters left the Respondent's employment and never returned, although she had received several calls from Hollander asking her to do so. "Jones was also laid off on December 20 for a 3-day period 711 Employee Linton testified concerning several conversations with Hershey and Hollander about the Union after the election He stated that 2 or 3 weeks after the election Hershey told him that the names of the four instigators of the Union were "mud."23 Linton further testified that in November Hershey asked him if he had said anything about the Union around the plant and he told Linton that his days were "numbered." After charges were filed by the Union, Linton received a letter from the Board agent requesting information to be used in the investigation of the charges. Linton called Hershey at his home and informed him of the letter. Hershey came to Linton's home and took the letter and subsequently invited Linton over to his home. Hershey told Linton that he wanted him to call the Regional Office of the Board and inform them that he was interested in the Union and wanted to find out what was going on. According to Linton, Hershey gave no explanation as to why he wanted Linton to do this. While Linton was at Hershey's home, Hollander came there and told the employee that he could not order him to make the call to the Regional Office, but that he would like for him to do it.24 Sometime in December employee Haywood was laid off for an alleged lack of work. On December 29, Haywood returned to the Respondent's office to pick up his paycheck. While there Hollander asked Haywood how he had voted in the election. Haywood replied that he had voted for the Union. Hollander then stated that he knew this but wanted to see what the employee would say. During the period following the election and continuing through the first of the following year, the Respondent hired four new employees. Although the record is not absolutely clear on this point, it appears that two of the employees were hired sometime between October and December, and that they performed jobs that the employees in layoff status would have normally performed. The remaining two employees were hired sometime during the first part of 1968. Concluding Findings The initial issue to be resolved in this case is the status of Gearing, Burgher, and Hershey. The Respondent takes the position that Gearing was never designated foreman and that he in fact usurped the title and authority of this position. The Respondent further claims that Burgher was the oldest and most experienced employee, completely familiar with Respondent's entire operation, and that she simply trained new employees when they initially reported to the job. With respect to Hershey, the Respondent alleges that this individual is the technical engineer in charge of design, cost, and tooling, and in addition is responsible for quality control. Respondent denies that Hershey possesses any supervisory authority whatsoever. The relevant facts, however, do not support the Respondent's position with respect to these three individuals. Gearing credibly testified that he was originally hired as a maintenance man and that after a few weeks the Respondent placed him on salary ($10,000 per year) with the understanding that he would run the plant. Hollander admitted that Gearing was placed on salary, but states that this was done in order to allow Gearing to earn a "There was no indication as to who these instigators were considered to be "There is no indication in the record that Linton ever made such a call to the Regional Office. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fixed sum of money without working long hours of overtime each week.25 Gearing testified that he had authority to give work to employees, to see that the production was maintained, and to transfer employees from one job assignment to another. His testimony in this regard was corroborated by employees Wells, Sawmiller, Reagan, Haywood, and Morgan Each of these employees testified that Gearing had authority to grant them time off for emergency leave or for illness and that he responsibly directed their work. There is evidence in the record that Hollander not only considered Gearing the foreman, but also informed at least one employee that Gearing occupied this position. The unrefuted testimony of Haywood indicates that when he was hired, Hollander told him that he would take instructions from Scarpelli, the toolmaker, because the foreman (Gearing) was in the hospital. On the basis of the above, it is clear that Gearing had authority to responsibly direct the work of the employees, to change their job assignments, to grant them time off, and to require them to work overtime if needed. It is also clear that the employees regarded Gearing as their supervisor.26 Huberta Coal Co., Inc., 168 NLRB No. 22. On the basis of the above, I find and conclude that Gearing was the Respondent's foreman, and that he was a supervisor within the meaning of Section 2(11) of the Act. Stratford Lithographers, Inc., 168 NLRB No. 65, Newland Knitting Mills, 165 NLRB No. 104. Respondent's contention that Burgher was nothing more than a senior employee who acted in the capacity of the leadgirl, also lacks persuasive force. The evidence discloses that from October 1966 until May 1967, a portion of the Respondent's operation was housed in a temporary plant located a considerable distance from the main plant. This division in the operation was caused by a fire which destroyed a portion of the main plant. It is undisputed that Burgher was the only person in charge of the six or seven female employees who worked in the temporary building, and that Hollander only visited the temporary building for short periods of time during the workweek. The employees who worked under Burgher in the temporary building credibly testified that she had the authority to, and in fact did, grant them time off for emergency situations. Further, that she assigned them duties and saw to it that they were carried out. The evidence also indicates that when Gearing was fired Burgher assumed his duties and directed all of the employees in the plant with the exception of the employees in the plastics department. Several employees testified that they were told by Hollander at the time they were hired that they would take their instructions from Burgher. Moreover, it is abundantly clear that Burgher regularly transmitted information concerning employees' conduct to Hollander, and that on the basis of information supplied by Burgher that Hollander took action affecting the employees. Considering all of the above, I find and conclude that Burgher was a supervisor within the meaning of Section 2(11) of the Act. Huberta Coal Co., Inc., supra; Newland Knitting Mills, supra. "Hollander claimed that Gearing worked 60 to 80 hours a week It is significant to note that while Hollander professed to be concerned about the long hours Gearing was working , he complained , while testifying, that Gearing was no longer willing to put in the extra hours after he became salaried "The Respondent's claim that Gearing usurped the authority that he exercised in the plant is completely unpersuasive. From my observation of Hollander, I am of the firm belief that this employer would not have allowed anyone to assert any supervisory authority in the plant unless he specifically authorized it The evidence is equally as compelling concerning the supervisory status of Hershey. Hershey hired employee Linton and informed him at the time of hire what his rate of pay would be. Employees Linton, Tackett, Virgil and William Brummitt credibly testified that Hershey gave them their job assignments, transferred them from one job to another, and granted them time off when they requested it. Accordingly, I find and conclude that Hershey was also a supervisor within the meaning of Section 2(11) of the Act Having determined that Gearing, Burgher, and Hershey were supervisors, it necessarily follows that the Respondent is responsible for the conduct and statements of these individuals. Webb Tractor and Equipment Company, 167 NLRB No. 46 This record is replete with instances of unlawful conduct engaged in by the three supervisors and by the Respondent's president, commencing shortly after the handbilling of the plant in July. Hollander's threat to close up the plant and go fishing if the Union became the bargaining representative was repeated by Gearing and Hershey to employees Haywood and Linton. This statement carried the clear threat that the employees would face a loss of employment due to plant closure if they selected the Union as their representative. There are numerous instances of unlawful interrogation of employees by the supervisors concerning union activities in the plant. Gearing admitted questioning Sawmiller to determine who was responsible for causing the Union to organize the employees. Hershey made a similar attempt to get information concerning the Union from employee Linton. Burgher was particularly active in this regard, and repeatedly questioned employees in an effort to determine the identity of the union adherents and the extent of the union activity among the employees That such conduct by supervisors interferes with, restrains , and coerces employees in the exercise of their statutory rights is too fundamental to warrant citation I find, therefore, that the Respondent violated Section 8(a)(1) of the Act by the above conduct of its supervisors. In addition to the above unlawful conduct, Burgher polled the employees in order to determine their views about union representation. This poll was conducted at a time when representation proceedings were pending before the Board, and it is clear that the poll was not for the purpose of determining whether or not the Respondent should recognize the Union as the majority representative of the employees. Blue Flash Express, Inc., 109 NLRB 591, 593. Accordingly, I find and conclude that the Respondent committed a further violation of Section 8(a)(1) of the Act when Supervisor Burgher conducted an unlawful poll to determine the extent of employee support for the Union. Han-Dee Spring & Mfg. Co., Inc, 132 NLRB 1542. The Respondent also violated Section 8(a)(1) when Gearing and Hollander on separate occasions attempted to enlist the aid of employee Haywood to check with other employees and to find out whatever he could about the Union. It is plain that both Gearing and Hollander were seeking to use this employee as an informer to ascertain the extent of the union activity among the employees. This effort on the part of the Respondent's president and foreman further violates Section 8(a)(1) of the Act. Atlas Engine Works, Inc., 163 NLRB No. 61. The Respondent's attempts to interfere with and thwart the union activity of its employees did not cease after the election established that a clear majority of the employees desired union representation. Indeed, the evidence TIIDEE PRODUCTS discloses that after the election, the Respondent's unlawful activities intensified The day following the election Tackelt, the union observer during the election, was laid off at 10 a.m., and Virgil Brummitt was laid off an hour later. Morgan was laid off at 3:30 p.m. that same day On September 18, Reagan was not allowed to work at all because of an alleged defect in her machine, and on September 19, Sawmiller was also informed that she could not work because her machine needed repairing. On September 20, Cash, Cullars, and Graham were laid off. Although the Respondent asserts an economic defense, the evidence overwhelmingly supports the General Counsel's claim that the layoffs were unlawfully motivated. After expressing strong displeasure over the results of the election in the presence of all the employees, Hollander began laying off employees the very next day. There was no prior indication that a work curtailment was contemplated It is significant to note that Tackett was the first employee selected for layoff that morning. Of equal significance is the fact that the Respondent departed from the past practice of finding other jobs around the plant for the employees during slow periods, e g., cleaning machinery, washing windows, and general maintenance work Thus, it is apparent that Hollander was carrying out the threat voiced to Gearing when he stated, "that if the Union got in, he would keep the `dedicated' employees and get rid of the rest." While the record shows that only two employees were actually fired, it is clear from the Respondent's treatment of the employees after the election that Hollander was seeking to achieve his purpose by penalizing the employees for voting for the Union, thereby discouraging their membership in the Union Additional evidence of this unlawful motivation is contained in Hollander's statements to employees during the week following the election. He told employee Wilson "to watch her step and her mouth," and he stated to employee Venters that "you're making your bed and I'll see that you pay for it." He also told Venters that he had been in "this mess before."27 Hollander continued his harassment of the employees by suddenly increasing the production quota of the employees working at the assembly table He demanded that these employees, Jones and Venters, produce 125 parts a clay, whereas he previously had been satisfied with little more than half that amount. This dramatic increase in the production requirements, after the election, is a further demonstration of Hollander's efforts to retaliate against the employees for selecting the Union as their bargaining representative. It is in the totality of these circumstances that I find and conclude that the Respondent's claim of economic justification for the layoffs must be completely rejected. I further find that the motivating cause underlying the Respondent's conduct was the intense desire to retaliate against the employees for voting in favor of union representation and thereby discourage employee membership in the Union. Battle Creek Steel Fabricating Company, Inc., 169 NLRB No. 125; West Side Plymouth, Inc , 170 NLRB No. 98. The suddenness of the layoffs, the departure from the past practice of putting employees to work in other jobs when business was slack, the various statements made to employees after the election, and the imposition of oppressive production quotas are all factors which far outweigh the Respondent's "As the General Counsel correctly pointed out in his brief, "this mess before" obviously referred to the Union's prior attempt to organize the employees in 1964 A complaint was issued in connection with that effort and was subsequently dismissed by the Trial Examiner (TXD-378-65) 713 claim of economic necessity in its treatment of the employees. Accordingly, I find that the Respondent violated Section 8 (a)(3) and (1) of the Act by laying off employees and increasing the production quota of two employees for discriminatory reasons The discharges of Reagan and Sawmiller must also be considered as a part of the pattern of unlawful conduct directed at the employees by the Respondent. It is clear that Reagan was fired for discussing the Union on the job, but it is equally as clear that until this particular incident the Respondent never invoked or enforced a rule against discussions of the Union in the plant. Indeed, the evidence shows that the Respondent's president and supervisors repeatedly discussed the Union with employees while they were on the job, and that Burgher freely circulated among the employees while they were working in an effort to poll them about their union sympathies. The conversation between Ward and Reagan which precipitated the latter's discharge was in fact initiated by Ward, who was complaining about the fact that the majority of the employees voted in favor of the Union. Hollander summarily discharged Reagan without affording her an opportunity to explain or defend her conduct, and there is no evidence in this record that any other employee was ever discharged for discussing the Union while working. It is apparent, therefore, that the rule against discussing the Union while on the job, if it existed at all, was spontaneously invoked and discriminatorily enforced against Reagan. Consequently, her discharge was in violation of Section 8(a)(3) and (1) of the Act. Talon, Inc., 170 NLRB No. 42; Clanbach, Inc., dlbla Carousel, 170 NLRB No. 35. Cf Rexall Chemical Company, A Division of Rexall Drug and Chemical Company, 172 NLRB No. 147 The Respondent's claim that Sawmiller was discharged because of a policy against allowing female employees, for purposes of safety, to work in the plant is likewise without merit. The credible evidence indicates that at least one other female employee was allowed to work until she was in her 6th month of pregnancy. Moreover, Hollander's comments to Sawmiller at the time that she was ill, due to her pregnancy, gave rise to the expectation that the employee would be allowed to return to work once her condition was better. There was.no mention of the alleged company policy against allowing pregnant women to work in the plant I find therefore that Hollander seized upon the fact of Sawmiller's pregnancy as a pretext to enable him to get rid of one more employee identified as a union supporter. I therefore find that by the discharge of Sawmiller, the Respondent further violated Section 8(a)(3) and (1) of the Act. Jackson Packing Company, 170 NLRB No. 155. CONCLUSIONS OF LAW 1. The Respondent, Tiidee Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The above Union is the duly certified collective-bargaining representative of the Respondent's employees in the following appropriate unit. All production and maintenance employees at the Employer's Dayton, Ohio, plant, excluding all office clerical employees, professional employees, technical employees, guards and supervisors, as defined in the 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. 4. By unlawfully interrogating employees to determine the identity of union adherents and the extent of union activity in the plant, the Respondent interfered with, coerced, and restrained employees in the exercise of their statutory rights and violated Section 8(a)(1) of the Act. 5. By threatening to close the plant in the event that the Union became the employees' bargaining representative, and by threatening to get rid of employees who supported the Union, the Respondent interfered with, restrained, and coerced the employees and violated Section 8(a)(1) of the Act. 6. By seeking to induce employees to act as informers concerning the union activities of fellow employees, the Respondent further violated Section 8(a)(1) of the Act. 7. By conducting a poll of the employees in order to determine their sentiment for or against the Union, at a time when a representation proceeding was pending before the Board, the Respondent further violated Section 8(a)(1) of the Act. 8. By unlawfully laying off employees because a majority of the employees selected the Union as their collective-bargaining representative, the Respondent violated Section 8(a)(3) and (1) of the Act. 9. By discriminatorily discharging employees in order to retaliate against employees for selecting the Union as their collective-bargaining representative and in order to discourage membership in the Union, the Respondent violated Section 8(a)(3) and (1) of the Act. 10. By arbitrarily increasing production quotas of employees in order to retaliate against them for selecting the Union as their collective-bargaining representative, the Respondent changed terms and conditions of employment of its employees in order to discourage membership in the Union and violated Section 8(a)(3) and (1) of the Act. 11. By refusing to bargain with the Union as the certified collective-bargaining representative of the employees in an appropriate unit, the Respondent violated Section 8(a)(5) and (1) of the Act. 12. By refusing to furnish the Union with information pertaining to employees' existing wage and fringe benefits, the Respondent also violated Section 8(a)(5) and (1) of the Act. 13. By refusing to meet and negotiate with the Union, as the duly certified representative of its employees, until all litigation was concluded, the Respondent further violated Section 8(a)(5) and (1) of the Act. 14. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging 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 take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent discriminatorily laid off and discharged employees on various dates beginning September 15, 1967, 1 shall recommend that the Respondent recall all employees discriminatorily laid off and reinstate all employees discriminatorily discharged to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. The sum payable to these employees shall equal the amount they would have earned from the date of their unlawful layoff or discharge, as the case may be, to the date of recall or the offer of reinstatement, less any net earnings during the said period. Backpay shall be computed on a quarterly basis in a manner consistent with the Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, and interest thereon shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In the case of employee Sawmiller, however, backpay shall not accrue from the 6th month of her pregnancy to the time that she would have normally been able to return to work after the termination of her pregnancy. Because the Respondent has refused and continues to refuse to bargain with the Union as the duly certified collective-bargaining representative of its employees in the unit found appropriate, I shall further recommend that it cease and desist from refusing to bargain and, upon request, bargain in good faith with the Union. Further, that if an understanding is reached, embody such understanding in a signed agreement. In view of the nature of the Respondent's extensive unfair labor practices and because this conduct evinces a complete rejection of the collective-bargaining principle, I shall also recommend that the certification period be extended to begin on the day that the Respondent commences to bargain in good faith with the Union, upon request, as the certified bargaining representative. Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5); Excelsior Laundry, 167 NLRB No. 64; Monroe Manufacturing Company, 167 NLRB No. 157. In addition to the above, the Union seeks a far broader remedy. The Union requests that the Respondent make the employees whole for wages and benefits which they might have received but for the Respondent's unlawful refusal to bargain, and that the Respondent be required to pay the Union the amount of dues and initiation fees it lost dating from 130 days after the Union was certified. The 130 days is predicated upon the testimony of high-ranking union officials that in their experience a contract containing a union-shop clause is generally executed within 100 days after certification. The Union's request for this type of an expanded remedy represents the views of a growing body of respectable authority who take the position that the Board's current policy and practices in remedying this type of unlawful refusal to bargain is neither adequate nor realistic. There is currently pending before the Board at the present time two cases in which such a request is being considered.28 In each of these cases the Board has received oral argument on the question of an adequate remedy, but has not, as yet, rendered its decision. As the remedy requested in the instant cases involves both legal and policy questions which should be initially considered by the Board, I am not inclined to grant the remedy requested by the Union. In the course of the trial of these cases, I allowed the Union to develop fully in the record all evidence necessary to sustain its position on this issue and in the event that the Board does modify its policy in this regard, the Union's position is amply protected. Accordingly, I decline to require the Respondent to make the employees whole for wages and benefits that might have been negotiated but for the unfair labor practices, and I likewise decline to require the "Zinke's Foods, Case 30-CA-372 (TXD-662-66, Trial Examiner Josephine Klein ), Ex-Cell-O Corp, Case 25-CA-2377 (TXD-80.67, Trial Examiner Osley Vose). TIIDEE PRODUCTS 715 Respondent to pay the Union the amount of dues and initiation fees lost as a result of a failure to negotiate a collective-bargaining agreement Monroe Auto Equipment Company, Hartwell Division, 164 NLRB No. 144. Cf. Excelsior Laundry, supra. Because of the nature and extent of the unfair labor practices found herein and because these violations manifest an attitude of hostility directed toward the very basic purposes of the Act, and further, in order to prevent the commission of other unfair labor practices by the Respondent, I shall recommend a broad cease-and-desist order. Barnwell Garment Company, Inc., 163 NLRB No. 8; N.L.R.B. v Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Accordingly, upon the foregoing findings of fact and the conclusions of law and upon the entire record in this case, I recommend, pursuant to Section 10(c) of the Act, the following: RECOMMENDED ORDER Respondent, Tiidee Products, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees to determine the identity of union supporters and the extent of union activity in the plant. (b) Threatening to close the plant or to discharge employees who support the Union in the event that the Union became the collective-bargaining representative. (c) Seeking to induce employees to act as informers in an effort to determine the extent of union activities of other employees in the plant. (d) Unlawfully polling employees to determine whether or not they support the Union. (e) Discriminatorily laying off employees because the majority of the employees selected the Union as their collective-bargaining representative. (f) Discriminatorily discharging employees because the majority of the employees selected the Union as their bargaining representative and because the employees so laid off were supporters of the Union. (g) Discriminatorily changing terms and conditions of employment in order to retaliate against employees for voting in favor of union representation, and to discourage membership in the Union. (h) Refusing to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the duly certified exclusive bargaining representative of its employees concerning wages, rates of pay, hours, and other terms and conditions of employment in the following appropriate unit: All production and maintenance employees at the Respondent's Dayton, Ohio, plant, excluding all office clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act. (i) Refusing to furnish the Union with requested information necessary to enable the Union to act fully in its capacity as the collective-bargaining representative of the employees in the above unit. (j) Refusing to meet and negotiate with the Union, as the duly certified representative of the employees, until all pending litigation is finally disposed of (k) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the duly certified collective-bargaining representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Furnish the Union with the requested information pertaining to wage and fringe benefits currently received by the employees in the bargaining unit. (c) Recall any employee currently in layoff status, found herein to have been discriminatorily laid off, to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed by them, and make them whole for any loss of pay suffered by reason of their discriminatory layoffs in the manner set forth in the section of this Decision entitled "The Remedy." (d) Offer Wanda Reagan and Virginia Sawmiller immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (e) 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 to analyze the amount of backpay due under the terms of this Recommended Order. (f) Notify the employees laid off if any are presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (g) Post at its Dayton, Ohio, plant copies of the attached notice marked "Appendix."29 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's official representative, shall be posted immediately upon receipt thereof, and be maintained 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. (h) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.31 "In the event that this Recommended Order is 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." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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: This notice is posted pursuant to a Recommended Order of the Trial Examiner, issued after a trial in which both sides had the opportunity to present evidence. The Trial Examiner found that we violated the National Labor Relations Act and has ordered us to inform our employees of their rights. The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any and all of these things We assure all of our employees that: WE WILL NOT do anything that interferes with these rights. WE WILL NOT threaten our employees with plant closure, or discharge, or with any other types of reprisals because they have selected International Union of Electrical, Radio and Machine Workers, AFL-CIO, as their exclusive bargaining representative. WE WILL NOT attempt to get employees to inform on the union activities and desires of their fellow employees. WE WILL NOT unlawfully interrogate employees concerning their union membership, activities, or desires, nor will we unlawfully poll our employees in order to discover their sentiments about the Union. WE WILL NOT lay off employees because they selected the Union as their collective-bargaining representative. WE WILL NOT discharge employees because they selected the Union as their collective-bargaining representative. WE WILL NOT discriminatorily change terms and conditions of employment because employees voted in favor of union representation, or in order to discourage -membership in the Union. WE WILL NOT refuse to bargain collectively with the above Union as the certified collective-bargaining representative of the employees in the following unit: All production and maintenance employees at our Dayton, Ohio, plant, excluding all office clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act. WE WILL NOT refuse to furnish the Union with information that will enable it to function as the bargaining representative of our employees in the above unit. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under the Act. WE WILL make whole Virginia Sawmiller and Wanda Reagan for any loss of earnings they may have suffered by reason of their discriminatory discharges WE WILL recall and make whole all employees who were discriminatorily laid off by us. WE WILL notify any of our employees if currently in layoff status and if presently serving in the Armed Forces of the United States of their rights 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. WE WILL bargain collectively with the above Union as the duly certified collective-bargaining representative of our employees in the above unit and if an understanding is reached, we will sign a contract with the Union Dated By TIIDEE PRODUCTS, INC. (Employer) (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 directly with the Board's Regional Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686