Steel-Fab, Inc.

STEEL-FAB, INC. 363 Steel-Fab, Inc. and United Steelworkers of America, AFL-CIO, Petitioner. Cases 1-CA-8560 and 1-RC-12298 June 28, 1974 DECISION AND ORDER On April 20, 1973, Administrative Law Judge Mel- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified below. Contrary to the Administrative Law Judge, we do not find it "pointless" to rule on Respondent's alleged postelection misconduct. If Respondent engaged in further unfair labor practices subsequent to the elec- tion, it becomes even more appropriate for the Board to issue a bargaining order as part of the remedy. In this case, prior to the election, the Respondent promised employees increased benefits and a new job classification system. After the election, the Respon- dent granted an I1-cent-per-hour increase to all em- ployees on October 17, 1972, effective retroactively to October 1. As to the job classification problem, the Respondent, after the election, abandoned its own plan and hired an outside consultant. Pursuant to the consultant's recommendations, a new job description and wage rate plan, dated December 1, 1972, was fully implemented by the Respondent between December 4 and 18, 1972. The new system resulted in wage increases for 39 employees and no decreases. In light of the Respondent's preelection promises, we conclude that the Respondent's aforementioned postelection conduct constituted the implementing of illegal promises in order to reward employees for re- jecting the Union and to dissuade employees from further union activity. Therefore, the Respondent's granting of postelection benefits and instituting of a new job classification system was violative of Section 8(a)(1) t of the Act. Further, the Respondent's serious postelection misconduct indicates its continued hos- tility to the Union and clearly shows that a fair rerun election could not take place. The propriety of issuing a bargaining order in this case is thus bolstered by our further findings herein. i Accordingly, we shall include in our remedial order a provision that the Respondent cease and desist from such conduct. However, this is not to be construed as a requirement that the Respondent rescind such benefits as were granted. However, unlike our colleagues, we do not find that the Respondent's postdemand or postelection mis- conduct constituted independent violations of Section 8(a)(5). Further, upon reexaming these Gissel-type cases, we conclude that it is unnecessary to predicate the bargaining order on any 8(a)(5) violation. Under Gissel, to determine whether or not a bargaining order should issue as part of the remedy, we evaluate the seriousness of the employer's misconduct and its im- pact on the holding of a fair election (or rerun elec- tion). In effect, by issuing a bargaining order, we are remedying an employer's 8(a)(1) violations that have dissipated a union's majority and prevented the hold- ing of a fair election. It serves no real purpose to find additionally a violation of Section 8(a)(5). In Gissel, the Court's decision approved the propriety of a bar- gaining order as a remedy for substantial non-8(a)(5) violations. The Court, recognizing the Board's author- ity to issue a bargaining order without finding a viola- tion of Section 8(a)(5), stated, "The Board . . . has long had a . . . policy of issuing a bargaining order, in the absence of a §8(a)(5) violation or even a bar- gaining demand, when that was the only available, effective remedy for substantial unfair labor practic- es." N. L. R B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969). One of the distortions of analysis which the artifi- cial injection of 8(a)(5) issues produces is referred to in the dissenting opinions herein. The dissents con- tend that unilateral changes in wages or working con- ditions after the date on which the 8(a)(5) violation is held to have occurred should automatically be found by the Board to be further 8(a)(5) violations, with no analysis as to whether such changes were made for bona fide business reasons or whether they were moti- vated by antiunion considerations. In a true 8(a)(5) situation, such holdings are entirely proper. For we have long held that, once a union is certified or recognized, any change made without ne- gotiations with the employees' exclusive agent consti- tutes a failure on the part of the employer to fulfill his bargaining obligations. But in the context here, such a rule rests on specious foundations. For in this type of case we decide the so-called 8(a)(5) issue on an assessment of the serious- ness of the employer's unfair labor practices, not on whether a bargaining obligation has arisen. Thus on August 4, the date on which our dissenting colleagues would find a bargaining obligation to have arisen, there was no way for anyone, including the Employer, the Union, or the employees, to have known that a bargaining obligation existed. The elec- tion, which at that time everyone thought would de- cide the question of whether the Union would be the bargaining agent, had not yet been held. So how could 212 NLRB No. 25 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer possibly know that any action taken thereafter, with respect to wages, hours, or working conditions, would have to be first negotiated with the Union? Upon reflection we think it unsound to as- sume that an employer is sufficiently prescient to di- vine that this Board may later say, in hindsight, that a bargaining obligation existed and thus impose a retroactive bargaining obligation.2 To do so may, we fear, create anomalies under existing precedent. For example, had the Employer here had a regular practice of granting a set amount of wage increases every August 5, surely we would not hold that, be- cause, as the dissents would have it, a bargaining obli- gation existed on August 4, the Employer should have withheld any such increase until bargaining could oc- cur. Indeed, if the evidence showed such a regular pattern, and if an employer did not unilaterally grant any such increase before the election, we would, in most cases, find such withholding unlawful. If, on the other hand, as here, the employer prom- ised and gave benefits in order, to discourage union activity by the employees, then and only then is such action unlawful. And, it is unlawful for 8(a)(1) rea- sons, not because of a bargaining obligation which has no discernible existence until our decision reveals that we have found it necessary to impose the obliga- tion as a remedy for serious unfair labor practices. Member Fanning argues that we are violating the principles laid down by the Supreme Court in Gissel and reverting to the decisions of the fourth circuit which were disapproved by the Supreme Court. This is simply not true. It is of course true that the Supreme Court in the Gissel case affirmed the Board's finding of an 8(a)(5) violation. That is not to say, however, that the Su- preme Court was mandating that the Board find such a violation as a predicate for entering a remedial bar- gaining order, and nowhere in the Gissel opinion is there any denial of the Board's authority to enter such an order to remedy 8(a)(1) and/or 8(a)(3) violations. Upon review of our past decisions it is our opinion that resting our remedial authority upon an 8(a)(5) finding is both unnecessary and undesirable. It will be 2 Our dissenting colleagues misconstrue our point with respect to the re- troactivity of an 8(a)(5) bargaining order. In the normal 8 (a)(3) case, for example, the facts constituting the unfair labor practice generally take place at or about the time of the discharge ; the respondent can make his evalua- tion-right or wrong-as of that time, and backpay dates from then In finding a Gissel 8(a)(5) violation, on the other hand, our colleagues support their findings by examining , inter aka, subsequent employer unfair labor practices, and their effect on an election subsequently held. If these are found sufficiently serious, our colleagues would date their 8(a)(5) findings from the date of the union's earlier request to bargain , and the employer's refusal It is not the respondent's uncertainty that is bothersome, but rather that the operative facts, on which the violation will rest, will not yet have occurred on the date respondent is to be found guilty of an 8 (ax5) violation . To find a violation nunc pro tunc seems to us analytically unsound, in addition to whatever unfairness may be present. recalled that the Supreme Court in Gissel accurately outlined the Board's position in the cases there at issue as follows:' Relying on these three assertions, the Board asks us to approve its current practice, which is briefly as follows. When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an em- ployer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union's request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under § 9(c)(1)(B). If, however, the employer commits independent and substantial unfair labor practic- es disruptive of election conditions, the Board may withhold the election or set it aside, and issue instead a bargaining order as a remedy for the various violations. It is obvious from the above quotation that the essence of what was being argued in Gissel was the scope of the Board's remedial authority in cases where, as the above quotation sets forth, "the employ- er commits independent and substantial unfair labor practices disruptive of election conditions...." It is equally apparent from the above Court description of the Board's position that the Board was not seeking to establish its authority to enter a bargaining order based solely on a refusal of a recognition demand in the absence of other independent employer unfair la- bor practices. Nor do we here seek to revert to the fourth circuit's standards for the appropriateness of the bargaining order remedy. The Supreme Court in Gissel described its differ- ences with the fourth circuit in the following language (395 U.S. at 613-615): Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit Js not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices. Such an order would be an 3 395 U.S. at 591 (1969). STEEL-FAB, INC. 365 appropriate remedy for those practices, the court noted, if they are of "such a nature that their coercive effects cannot be eliminated by the ap- plication of traditional remedies, with the result that a fair and reliable election cannot be had." N.L.R.B. v. Logan Packing Co., 386 F.2d 562, 570 (C.A. 4th Cir. 1967); see also N.L.R.B. v. Heck's Inc., 398 F.2d 337, 338. The Board itself, we should add, has long had a similar policy of issu- ing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective reme- dy for substantial unfair labor practices. See, e.g., United Steelworkers of America v. N. L. R. B., .. . 376 F.2d 770 (1967); J. C. Penny Co., Inc. v. N.L.R.B., 384 F.2d 479, 485-486 (C.A. 10th Cir. 1967). The only effect of our holding here is to ap- prove the Board's use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tenden- cy to undermine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser showing of em- ployer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable em- ployee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practic- es in terms of their past effect on election condi- tions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensur- ing a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such a order should is- sue (see n. 32, suprd). We would note particularly the portion of the above rationale wherein the Court said "The only effect of our holding here is to approve the Board's use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." The central issue in all these cases is, as the Court's opinion in Gissel spells out, the propriety of the Board's use of a bargaining order as a remedy for varying degrees of employer unfair labor practices. We see no point, in cluttering up the analysis of this central issue with the kinds of matters which we cus- tomarily consider in deciding whether an employer has or has not met the kinds of bargaining obligations dealt with in our typical refusal-to-bargain 8(a)(5) cases. Indeed it is our view, in hindsight, that if the Board, ab initio, had treated this as a purely remedial issue and had not interjected the superfluous 8(a)(5) finding, much confusion could have been avoided. Even today it is not uncommon for unsophisticated critics of the Board to misinterpret the Board's policy in this area and to erroneously assert that this Board frequently requires employers to bargain with unions on the strength of authorization cards instead of al- lowing employees the more democratic alternative of utilizing the Board's election processes. Had we made plain initially that the bargaining order is not de- signed to do that, but instead is designed solely as a remedy for serious employer interference with em- ployee rights, it is at least arguable that we could have precluded the erroneous impression that the Board was attempting to substitute, as a general policy, the use of authorization cards for the Board's orderly and highly respected election machinery. We are therefore not departing one iota from any teaching of Gissel with respect to the scope of the Board's authority to enter bargaining orders as a rem- edy for employer unfair labor practices, nor from the standards set forth therein outlining the categories of cases in which such a remedial order is appropriate. Instead, we are simply removing from the analytical process involved in applying those standards a seman- tic difficulty which we believe has clouded the central issue over the years. Accordingly, having concluded that it is not essen- tial to make 8(a)(5) findings in order to issue a bar- gaining order, Members Kennedy and Penello join the position of Chairman Miller, as stated in his con- curring opinion in United Packing Co., 187 NLRB 878, 880. As stated by Chairman Miller in United Packing, it distorts our analysis to predicate bargain- ing orders on 8(a)(5) violations, and it is desirable for the Board to concentrate solely on a careful examina- tion of the employer's 8(a)(1) conduct and its impact upon the holding of a fair election. Henceforth, in these Gissel-type situations, we shall dispense with finding an 8(a)(5) violation and instead determine only whether or not a bargaining order is necessary to remedy the employer's 8(a)(l)'s. In this case, the Respondent's numerous and egre- gious violations of Section 8(a)(1) and (3), occurring both before and after the election, clearly dissipated the Union's majority and have created an atmosphere 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which a free and fair election could not take place. Our additional 8(a)(1) findings herein, showing the Respondent's continuing unlawful activity, indicate conclusively that a bargaining order is the only appro- priate remedy for the Respondent's misconduct. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge , as herein modified, and hereby orders that Respondent, Steel- Fab, Inc., Fitchburg, Massachusetts, its officers, agents, successors, and assigns , shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following as paragraph 1(b) of the Administrative Law Judge's recommended Order: `'(b) Promising and thereafter granting employees benefits and/or new job classifications to dissuade them from union activities and to reward them for ceasing to support a union." 2. Eliminate paragraph I(f) of the Administrative Law Judge's recommended Order. 3. Substitute the following as paragraph 2(b) of the Administrative Law Judge's recommended order: "Upon request, recognize and bargain with United Steelworkers of America , AFL-CIO, as the exclusive collective-bargaining representative of the employees in a unit of all production and maintenance employ- ees at the Employer's Fitchburg, Massachusetts, plant, excluding office clerical employees , guards, foremen and all supervisors as defined in Section 2(11) of the Act, respecting rates of pay, wages , hours, or other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement." 4. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election conducted on August 31, 1972, in Case 1-RC-12298 be set aside, that the petition therein be dismissed , and that the proceeding in Case 1 -RC-12298 be vacated. MEMBER FANNING, concurring in part and dissenting in part: I agree with my colleagues in the majority that Re- spondent engaged in egregious violations of Section 8(a)(1) and (3) of the Act and that a bargaining order to remedy such violations is warranted in this case. I dissent from their conclusion that Respondent did not violate Section 8(a)(5) of the Act and that a bargain- ing order, dating from August 4, 1972, the date the Union demanded recognition based on its conceded status as the employees' bargaining representative is "unnecessary." This is the first time in the long history of the Board that a majority of its members have refused to find a violation of Section 8(a)(5) where a union's majority has been established by valid authorization cards and the employer, upon demand, has refused to bargain while at the same time committing serious unfair la- bor practices. The majority's failure to find this unfair labor practice is contrary to the literal language of Section 8(a)(5), which directs the Board to find such a violation where the employer has refused to bargain with a union selected by a majority of its employees. It Is contrary to the holding of the Supreme Court in the Gissel case, supra, where the Court found that Section 9(c)(1)(B) was not intended "to relieve any employer of his § 8(a)(5) bargaining obligation where, without good faith, he engaged in unfair labor practic- es disruptive of the Board's election machinery."a It is contrary to the legislative history of Section 8(a)(5) set forth in particular detail by the Supreme Court in Gissel, supra, in support of its conclusion.5 I have carefully considered and I reject the majority's assertion that a finding of a violation of Section 8(a)(5) in cases such as this is "unnecessary," "serves no real purpose," and "distorts our analysis." Obviously, this is not a situation where the remedy for the same unfair labor practice would inevitably be the same regardless of the particular section of the statute invoked by the General Counsel. I submit that in cases of this kind it is of overriding importance for the effectuation of the purposes of the Act that employers be found in violation of Section 8(a)(5). Consider, that after August 4, when under normal Board Law this Employer's bargaining obliga- tion would have commenced, the Employer engaged in bargaining with individual employees contrary to the statutory requirement that he bargain only with their selected representative. The majority's Order does not remedy this violation. Consider, that after August 4 the Employer engaged in unilateral changes in conditions of employment in violation of Section 8(a)(5). The majority's Order does not remedy this violation except to the extent such conduct constitutes independent violations of Section 8(a)(1). Consider, that after August 4 the Employer, again violating his bargaining obligation, refused to furnish the Union with information relating to changes in wages and job classifications. The majority's Order does not remedy this violation. Violations of even more serious propor- tions will go unremedied in similar cases under the majority's new rule. For example, after a bargaining ° 395 U S at 600 5 395 U S at 598-600 STEEL-FAB, INC. 367 obligation has been established by the use of cards an employer may decide to relocate his plant for eco- nomic reasons, to cut wages, or to go out of business in whole or in part. Contrary to precedent, the majori- ty would find no violation of Section 8(a)(5) and pro- vide no remedy for such conduct no matter how serious the employer's other unrelated unfair labor practices. The employer would be under no order of the Board to bargain about its decision or even the effect upon its employees of such 8(a)(5) unfair labor practices. We do not know and cannot predict at this time the impact of the Board's decision upon the ac- cepted rule that a union's majority, once established, is presumed to continue until rebutted by substantial evidence. Where the Board's order is based not on the union's right as the employees' majority representa- tive to a bargaining order, but upon the remedy of other unfair labor practices, what weight can or should be given to its unrecognized lawful selection as the majority representative of employees under Sec- tion 8(a)(5) of the Act? I can find no justification or reasonable rationale for the majority's decision, reversing, as it does, long- established Board and court precedent. It will not help to say that but for the Employer's independent unfair labor practices there would be no violation of Section 8(a)(5) and a bargaining order under existing rules would not issue where, as here, the Union has acquired its majority by means of authorization cards. It has always been a cardinal tenet of Board law that a Board election is the preferable method of estab- lishing employee preference for or against union rep- resentation. Indeed, the Supreme Court in Gissel, supra, took note of and approved the Board's policy in this respect .6 But this is not to say that an employer is or should be' exonerated from his statutory obliga- tion under Section 8(a)(5) where his conduct has made it improbable or unlikely that a Board election would be a method better than, or as good as, authori- zation cards to determine the union's majority status. This, however, is precisely the Frankenstein that the majority has chosen to manufacture in this case. The, majority's position boils down to a truncated version of the fourth circuit's rule that a bargaining order in a Gissel-type case can be used only to remedy independent unfair labor practices, but not an 8(a)(5) violation. In an extended analysis of that court's view the Supreme Court reversed the fourth circuit's hold- ing with respect to its refusal to grant a bargaining order on an 8(a)(5) charge based on cards, but left standing the court's position that such an order could be issued for outrageous unfair labor practices irres- pective of the union's majority status.? The Supreme 6 395 U.S at 596. Court noted that the Board had a "similar policy" 8 without pointing out that the Board's policy related only to the issuance of a bargaining order for substan- tial 8(a)(1) and (3) violations where no 8(a)(5) viola- tion was involved, but in which the Board required that the union had at one time attained majority standing. In an attempt to walk between the rain- drops, the majority concludes that it is "unnecessary" to base a bargaining order on an 8(a)(5) violation, that its order need only remedy other serious unfair labor practices, but nevertheless, and somewhat inconsis- tently, that the Union must have achieved majority status, which the Employer is free to disregard with- out violating Section 8(a)(5). Apart from being very confusing, I submit that the majority is clearly wrong. The similar policies of the fourth circuit and the Board were considered by the Supreme Court in the first category of pervasive unfair labor practices .9 In the next paragraph the Court pointed out that the only effect of its holding was "to approve the Board's use of the bargaining order in less extraordinary cases marked by less pervasive practices, which nonetheless still have the tendency to undermine majority strength and impede election processes." 10 If the majority is right, the Court in adopting the Board's rule gov- erning 8(a)(5) authorization card cases adopted only that portion relating to the appropriateness of a bar- gaining order, but rejected, ignored, or did not consid- er the rule in its entirety. It is undisputed that the Board's rule in such cases provided for a bargaining order to remedy 8(a)(5) violations from the date of the employer's initial refusal to bargain. Indeed, the whole tenure of the Court's opinion is contrary to the majority's decision. Unlike my colleagues, I cannot assume that the Supreme Court has, in effect, reversed Board law while appearing to approve it. In affirming the Board's policy of granting a bar- gaining order to remedy 8(a)(5) violations where the union's majority was based on cards, the Court indi- cated that the Board had discretionary authority to reduce the number of cases theretofore included in that category." Citing Aaron Brothers Company of California, 158 NLRB 1077 (1966), with approval, the Court emphasized the absence of a per se rule that the commission of any unfair labor practice would auto- matically result in an 8(a)(5) violation and the is- suance of a bargaining order. 12 In Aaron Brothers the Board had held that the commission of minor unfair labor practices did not warrant a finding that the employer had violated Section 8(a)(5), despite the 7 395 U.S at 613-614. 8 395 U.S at 614. 9 Ibid 10 Ibid. 395 US. at 615. 12 Ibad. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union's successful campaign in securing authorization cards. So too, the Court concluded, a fair election might be possible in some cases in which the employer's unfair labor practices were less than per- vasive." Accordingly, the Court instructed the Board to examine the record in such cases carefully and reach a balanced judgment on this issue. If, on bal- ance, the Board decided that a fair election could be held, obviously this method of determining the union's majority status was to be preferred over its designation by means of authorization cards. If, on the other'hand, the Board concluded that there was only a slight possibility of erasing the effects of the employer's unfair conduct, then the sentiment of the employees for the union, evidenced by authorization cards, was a better indication of their true desires.14 Clearly, in the latter situation, the Court was uphold- ing long-established Board law that a union's majority representative status would be recognized by the Board and enforced through the statutory command of Section 8(a)(5) and 8(d). If I have read the Gissel decision correctly the Court has found that: (1) Congress has not eliminated the use of authorization cards as one means of estab- lishing a union's majority status for purposes of Sec- tion 8(a)(5); (2) a Board election, if it can be conducted fairly, is a preferable method of determin- ing employee choice; (3) where an employer commits extraordinary violations of Section 8(a)(1) and (3) a bargaining order is a proper remedy for such viola- tions whether or not the union had ever achieved majority status; (4) the Board's policy of granting a bargaining order to remedy an 8(a)(5) violation where the evidence of the union's majority consists of valid authorization cards, is proper if, on balance, the Board decides that this method of exercising employ- ee choice is, in the circumstances, preferable to a Board election; and (5) where a fair election can be conducted or where the employer has engaged only in minimal unfair labor practices, as in Aaron Brothers, supra, no violation of Section 8(a)(5) should be found and no bargaining order should issue. Conceding that the Supreme Court in Gissel found a violation of Section 8(a)(5), the majority neverthe- less argues that the Board is not "mandated" to do likewise in this and similar cases . Apparently, the ma- jority takes the position that the Court in Gissel was merely approving a reasonable policy of the Board, but that the Board is now free to adopt another policy different from the one approved by the Court. I sub- mit that the majority is mistaken . The fact that the Court acknowledged the Board's authority to grant a Ibid 14 395 U S. at 614-615 bargaining order without finding a violation of Sec- tion 8(a)(5) is not an invitation to the Board to ignore conduct in violation of this section of the Act. In considering the validity of Board law under Section 8(a)(5) the Court set forth in great detail the legislative history of the 1947 amendments to the Act, particular- ly Section 9(c)(1)(B) as it affected an employer's obli- gations under Section 8(a)(5), the statutory directive of Section 8(a)(5), and the Court's own precedents such as N. L. R. B. v. Bradford Dyeing Association, 310 U.S. 318, 339-340 (1940), and Franks Bros. Company v. N.L.R.B., 321 U.S. 702 (1944), among others, citing with approval its decision in United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 69 (1956), to the effect that, where the union had established its majori- ty by the use of authorization cards without any bona fide dispute, the employer's "denial of recognition of the union would have violated § 8(a)(5) of the Act." 15 The Court next considered whether cards were so unreliable that they ought never be used to establish a union's majority and support an order to bargain.16 The Court concluded that where the employer had engaged in conduct disruptive of the election process cards could be the "most effective-perhaps the only-way of assuring employee choice." " The Court finally held, in accordance with Board law as distinguished from that of the fourth circuit, that a bargaining order based on cards was appropriate where the employer's conduct had made a fair elec- tion improbable. Thus, it is no longer open to the Board, through the advantage of hindsight or other- wise, to hold that a finding of a violation of Section 8(a)(5) in these cases is a "superfluous finding." The Supreme Court has spoken, not only in Gissel, but in the more recent case of N.L.R.B. v. Savair Manufac- turing Co., 414 U.S. 270 (1973), where the Court , citing Gissel, interpreted that case as follows: "There we held that the gathering of authorization cards from a majority of the employees in the bargaining unit may entitle the union to represent the employees for collec- tive-bargaining purposes, even though there has been and will be no election . . . and that rejection of that authorization by the employer is an unfair labor prac- tice." 18 (Emphasis supplied.) While the dissenting Justices in that case had a different view with respect to the issue in Savair, they too pointed out that a card majority would serve as the basis for an 8(a)(5) bar- gaining order under Gissel if the employer had com- mitted serious unfair labor practices.19 The majority deny that their view of the law corre- sponds to that of the fourth circuit. Like the fourth 15 395 U S at 597-598 16 395 U S at 601-603 '7 395 U S at 602 18 N L R B v Savair Manufacturing Company, 414 U S at 280 (1973) '9 Id at 281 STEEL-FAB, INC. 369 circuit, however, the majority will not find a violation of Section 8(a)(5) although the employer has refused to recognize and bargain with a union selected by a majority of its employees by authorization cards. The fourth circuit's position, rejected by the Supreme Court, was that cards were too unreliable to support a bargaining order. The majority's view is that the bargaining order should be treated as a "purely remedial issue" relating only to employer unfair labor practices other than Section 8(a)(5). It would clutter up their analysis, the majority contend, to find and remedy the violation of Section 8(a)(5). Unlike the fourth circuit's view, there is no intimation in the majority's opinion that they would issue a bargaining order as a remedy for employer unfair labor practices if the union had not, in fact, secured a majority of valid cards. If Section 8(a)(5) is so unnecessary, super- fluous, and cluttering of analysis, will the majority remedy serious unfair labor practices without regard to the union's majority status? And if not, have not the majority accepted three-fourths of the fourth circuit's opinion relating to bargaining orders for pervasive employer unfair labor practices and applied'that rule to less pervasive conduct which, the Supreme Court in Gissel held, would justify a bargaining order if the record showed that the union at one point had achieved majority status? In my opinion, the issue in this case is of paramount importance in effectuating the policies of Section 8(a)(5) of the Act as interpreted by the Supreme Court. I cannot agree that we are engaged here in disputing a mere "semantic difficulty." Nor do I be- lieve that it is the business of the Board to placate uninformed critics, who frequently misjudge and mis- quote Board law. Rather, it seems to me our effort should be in the direction, of stating our view of the law in the clearest, fullest terms, relying on the highest precedents, and remedying every violation of the Act, which the record shows has been committed by an employer or a union. Finally, I must respond to the majority's argument that no violation of Section 8(a)(5) should be found because to do so would impose a "retroactive bargain- ing order" on this Employer. It should not require saying that every order of this Board finding a viola- tion of the Act is retroactive and the remedy applies as of the date of the finding of the original unfair labor practice. No one knows that an employer has violated Section 8(a)(3) on the date an employee is discharged until the Board and the courts make that decision. No one knows that an employer has engaged in bad-faith bargaining in violation of Section 8(a)(5) or has violat- ed that section of the Act even after refusing to bar- gain with a certified union until the Board and ultimately the courts speak. Every union and every employer acts at its peril by engaging in conduct that may subsequently be the subject of an unfair labor practice charge. This has always been the law, as I understand it. Clearly, this particular Employer must be held to have known that when President Hall and others engaged in serious unfair labor practices the Respondent was running the risk that the Board would find the authorization cards of August 4 the best available evidence of the Union's majority status and that such a finding would put the Employer in violation of Section 8(a)(5) as of that date. Whether or not a further violation of that section would occur if Respondent granted a wage increase on August 5 is a matter, again, for the consideration of the Board and the courts, upon a proper charge filed and com- plaint issued. But however viewed, this Employer, even in the majority's analysis, is hardly an innocent and unsophisticated participant in unfair labor prac- tices. To suggest that it is somehow unfair to find the Respondent in violation of Section 8(a)(5) and to in- sist that a remedy for such a violation apply, if at all, only as of the date of the Board's Order finding an unfair labor practice is, in my opinion, sheer non- sense. Accordingly, I dissent from the majority's refusal to find and remedy the conceded violation of Section 8(a)(5) in this case. MEMBER JENKINS, concurring in part and dissenting in part: I agree with my colleagues that Respondent violat- ed Section 8(a)(1) and (3) as set forth by the Adminis- trative Law Judge. I further agree with my colleagues in the majority that Respondent's granting of post- election benefits and instituting of a new job classifi- cation system were violative of Section 8(a)(1) of the Act. Moreover, in my view, a bargaining order to remedy these violations is warranted in this case. On the other hand, I disagree with my colleagues in the majority when they fail to find that Respondent vio- lated Section 8(a)(5) of the Act and fail to provide a bargaining order dated from August 4, 1972, the date the Union demanded recognition. Also, inasmuch as I would find that, at all times after August 4, Respon- dent was obligated to bargain with the Union as col- lective-bargaining representative of its employees, I would also find that Respondent's changes in wages and job classifications after that date without notifica- tion to or bargaining with the Union further violated Section 8(a)(5) of the Act. My colleagues, as their opinions express, have widely differing views as to the import of the Supreme Court's decision in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). Since I am not in complete agreement with either of the views expressed, I have 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elected to set forth my views briefly in a separate opinion. The Court's decision in Gissel is essentially a reaf- firmation of many long held Board views and a rejec- tion of the numerous and varied attacks on these holdings by litigants before us and by those courts to which we must look for enforcement of our Orders, including the fourth circuit . Thus, the very first issue considered by the Court was whether a union can establish a bargaining obligation by means other than a Board election and whether the validity of possible alternative routes to majority status, such as cards, was affected by the 1947 amendments to the Act. In this regard the Board had always preferred that the bargaining obligation be established through its elec- tion procedures , but recognized that certain other lim- ited avenues were available warranting the creation of a bargaining relationship . The Court expressly ap- proved the Board's views and approach to this trou- blesome problem (395 U.S. at 596-598), as follows: The most commonly traveled route for a union to obtain recognition as the exclusive bargaining representative of an unorganized group of em- ployees is through the Board's election and certi- fication procedures under § 9(c) of the Act .. . it is also, from the Board's point of view, the preferred route. A union is not limited to a Board election, however, for in addition to § 9, the pres- ent Act provides in § 8(a)(5) . . . as did the Wag- ner Act in § 8(5), that "[i]t shall be an unfair labor practice for an employer . . . to refuse to bargain collectively with the representatives of his em- ployees, subject to the provisions of section 9(a)." Since § 9(a), in both the Wagner Act and the present Act, refers to the representatives as the one "designated or selected" by a majority of the employees without specifying precisely how that representative is to be chosen, it was early recog- nized that an employer had a duty to bargain whenever the union representative presented "convincing evidence of majority support." Al- most from the inception of the Act, then, it was recognized that a union did not have to be certi- fied as the winner of a Board election to invoke a bargaining obligation; it could establish major- ity status by other means under the unfair labor practice provision of § 8(a)(5)-by showing con- vincing support, for instance, by a union-called strike or strike vote, or, as here, by possession of cards signed by a majority of the employees au- thorizing the union to represent them for collec- tive bargaining purposes. We have consistently accepted this interpreta- tion of the Wagner Act and the present Act, par- ticularly as to the use of authorization cards. [Citations omitted.] Thus, in United Mine Work- ers, supra, we noted that a "Board election is not the only method by which an employer may sat- isfy itself as to the union's majority status," 351 U.S., at 72, n. 8, since § 9(a), "which deals ex- pressly with employee representation, says noth- ing as to how the employee's representative shall be chosen," 351 U.S., at 71. We therefore pointed out in that case, where the union had obtained signed authorization cards from a majority of the employees, that "[i]n the absence of any bona fide dispute as to the existence of the required majority of eligible employees, the employer's denial of recognition of the union would have violated § 8(a)(5) of the Act." 351 U.S., at 69. We see no reason to reject this approach to bargain- ing obligations now, and we find unpersuasive the Fourth Circuit's view that the 1947 Taft- Hartley amendments, enacted some nine years before our decision in United Mine Workers, su- pra, require us to disregard that case. [Footnotes omitted.] Not only did the Court spell out its approval of the Board's approach to these matters, but, in the pas- sages I have quoted, the Court made crystal clear that in denial of recognition, where the union obtains signed authorization cards from a majority of the em- ployees, the violation is of Section 8(a)(5) of the Act. I see no reason in logic or in law to change our long held views as the majority of my colleagues now pro- pose, nor do I believe that the Board has heretofore "artificially" injected 8(a)(5) matters in these cases. Clearly, the Supreme Court did not believe it was "artificial" or "unnecessary" to predicate a bargain- ing order on any 8(a)(5) violation. On the other hand, in certain limited areas, the Court, in Gissel, also approved the Board's long held views that a bargaining order may be appropriate to remedy unfair labor practices not normally running afoul of Section 8(a)(5). Thus, at page 614, the Court stated: The Board . . . has long had a . . . policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective reme- dy for substantial unfair labor practices. Those long held policies of the Board, approved by STEEL-FAB, INC. 371 the Court in Gissel, are correct, and I see no present need or sound policy reason for abandoning them at this time. Needless to say, the application of these policies may require the Board, on occasion, "to walk between the raindrops" as suggested by my colleague Member Fanning, but this is the course, in my view, which is essential to the sound administration of the Act. The majority of my colleagues conclude that no violation of Section 8(a)(5) should be found because to do so would impose a "retroactive bargaining or- der" on an employer. In other words, in the instant case, they would allow the Respondent to escape with the fruits of its unlawful behavior. I believe their posi- tion on this point to be logically wrong. A Board decision does not create rights and obligations, but merely ascertains and expresses their existence. The facts, conduct, and legal principles create the rights and obligations of the parties. This is the sound reason why every order of this Board and indeed every judi- cial opinion is retroactive to the date of conduct and not the date of the Board or court opinion. Indeed, my colleagues have long provided for backpay remedies from the date of the conduct, not the date of the Board opinion. Logic demands the same principle be applied to bargaining orders. So that there may be no doubt as to my views in this troublesome area of the law, I would continue to find, as in the instant case, an 8(a)(5) violation where there has been a demand for bargaining or recognition; I would find the violation occurred at the time of the demand, and any unilateral changes in terms and con- ditions of employment thereafter would, in my view, constitute additional 8(a)(5) violations. In those cases where no demand or request for bargaining has been made, but a petition has been filed and the election has been frustrated by the employer's misconduct, I would consider the petition as constituting a construc- tive demand or request for bargaining and I would find the 8(a)(5) violation from the date the petition is filed. Similarly, any unilateral changes in terms and conditions of employment would constitute addition- al violations of Section 8(a)(5). My views would be the same in those situations where a petition has been filed but subsequently withdrawn. In those cases where no demand or request for bargaining has been made, and no petition has been filed, but the union has in fact represented a majority of the employees, I would not find an 8(a)(5) violation, but would find an 8(a)(1) violation only. If the 8(a)(1) misconduct rises to the level suggested by the Court in Gissel, I would provide for a collective-bargaining remedy dat- ing from that first instance of misconduct which ulti- mately frustrated the election process. Moreover, I would further find that any unilateral change in the terms and conditions of employment after that date would not only constitute additional violations of Sec- tion 8(a)(1) but would also constitute violations of Section 8(a)(5). Member Fanning has correctly pointed out the de- ficiencies in remedy, which the majority now creates, and the undermining of the statute which results, without logic or reason to support the change, from our present position. My own views are set out, not in disagreement on this point, but solely in order to make clear some matters which seem not to have been explicated fully in the other opinions. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question employees about their union activities. WE WILL NOT promise and thereafter grant em- ployees benefits and/or new job classifications to dissuade them from union activities or reward them for ceasing to support a union. WE WILL NOT grant raises or other benefits to our employees to influence their rejection of a union. WE WILL NOT threaten employees because of their testimony in a National Labor Relations Board proceeding. WE WILL pay Charles Valera for losses he suf- fered as a result of our having rescinded his wage increase in August, 1972. WE WILL NOT discriminate against any employ- ee because of his activity on behalf of United Steelworkers of America, AFL-CIO. WE WILL, upon request, bargain collectively with United Steelworkers of America, AFL- CIO, respecting rates of pay, wages, hours, or other terms and conditions of employment, as the representative of our employees in the follow- ing bargaining unit: All production and maintenance employees employed by us at our Fitchburg, Massachu- setts, plant, excluding office clerical employ- ees, professional employees, guards, foremen, and all supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to join or assist that Union or any other union. STEEL-FAB, INC. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Employer) Dated By (Representative) (Title) workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES A. The Facts This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. Any ques- tions concerning this notice or compliance with its provisions may be directed to the Board's Office, 7th Floor-Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223- 3300. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Fitchburg, Massachusetts, on various dates in December 1972 and January 1973, based on charges filed September 6, 1972, and a complaint issued October 19, 1972, alleging that Respondent violated 8(a)(1), (3), and (5) of the Act. In its answer, Respondent denied that it engaged in any unfair labor practices. In Case 1-RC-12298, an elec- tion was conducted on August 31, 1972, pursuant to a stipu- lation for certification upon consent election, which resulted in a 36-35 vote against the Union. On October 7, 1972, the Union filed timely objections to the election. On October 11, 1972, the Regional Director determined that a hearing on the objections was necessary, and ordered that the objections be consolidated with Case I-CA-8560 The complaint was amended by the Regional Director on De- cember 1, 1972, and by counsel for the General Counsel at the hearing on January 4, 1973. The General Counsel and Respondent have filed briefs, which have been carefully considered. Upon the entire record in the case,) including my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, a Massachusetts corporation, is engaged in the manufacture, sale, and distribution of fabricated steel and related products at its plant in Fitchburg, Massachu- setts. Respondent annually both receives from and ships to points outside the Commonwealth of Massachusetts materi- als and products valued in excess of $50,000. I find, as Respondent admits, that it engaged in commerce within the meaning of Section 2(6) and (7) of the Act. United Steel- 1 The General Counsel's unopposed motion to correct the transcript is hereby granted. Charles Valera, an employee of Respondent, was at all pertinent times chairman of the employees' "Shop Commit- tee," which functioned as the representative of the employ- ees with respect to presenting grievances, and requests for wage increases, to the Company. It met monthly with the Company's general manager and plant superintendent. As spokesman for the committee, Valera had presented a num- ber of demands to management at the March, April, and May meetings. Among the demands was a general wage increase, thejob classification system, and that the Compa- ny remedy the chronic lateness of the 6-month wage re- views. These demands, along with others, were reiterated at successive monthly meetings through the July meeting. At the May meeting, the committee was informed that a gener- al wage increase would be considered about October 1. The Company also indicated at that time that they would try to speed up the reviews and to straighten out the classifica- tions. Following that meeting, the employees concertedly refused to work overtime for about 3 days, returning to work after a meeting with Company President Edward Hall, who promised to see about correcting the lateness of the reviews and to examine the wage scale, and repeated the earlier expectation of an October 1 general increase. Valera began receiving requests from the employees to get a union into the plant in July. He then called on an official of the Steelworkers local, who instructed him in organizing the plant. Valera was given a number of authori- zation cards. He distributed some to employees, and also called Union Representative Chris Joyce. The Union's or- ganizational campaign at Respondent's plant thus began in late July. About July 24, union organizers passed out leaf- lets and authorization cards, with return addressed enve- lopes attached, to Steel-Fab employees outside the plant. Valera received a number of signed authorization cards from employees, and the Union received a number of cards in the envelopes given out to the employees. At a meeting about August 2, to which Valera invited six employees, Bart Murray, a union staff representative in charge of the union campaign at Steel-Fab, spoke to the men, telling them that the Union had received signed authorization cards from "well over 60%d" of the employees, and that they intended to ask the Company for recognition the next day. This was done, by letter dated August 3, 1972. On August 4, the Respondent refused to recognize the Union. As noted above, the Union filed a representation petition on August 4, and, pursuant to a stipulation for certification upon consent election, an election was conducted August 31, with the Union losing 36 to 35. The bulk of the alleged unfair labor practices in this case occurred between July 24 and August 31, and these also constitute the grounds for the Union's objections to the election. There is also at issue before me other conduct by Respondent, occurring after August 31, alleged to have been violative of the Act On the same day that the Union distributed cards at the STEEL-FAB, INC. plant entrance, President Hall called the day-shift employ- ees together in the lunchroom. Hall told them he knew that cards were being distributed, that if the employees signed them, the union would be "automatically put into the facto- ry," and that "we don't need a god damn union in here."' Hall, according to his own testimony, also told the men that the company "had run for six years without a union and I thought we could run our affairs better without any outside interference, and I hoped we wouldn't have a Union." He added that he understood "that they received cards and I hope they would not sign them and return them," and that "we thought we could run our affairs better by ourselves." Respondent at about that time, and continuing almost to the date of the election, August 31, posted a number of notices on its bulletin board dealing with the Union's cam- paign, and sent several letters to employees. None of these notices or letters is specifically alleged as violative of Sec- tion 8(a)(1) of the Act. All of them stated and reiterated the theme that the Company was against having the Steelwork- ers represent its employees, hoping the employees would not commit themselves by signing cards for the union, empha- sizing that the employees did not need a union to receive fair treatment from the Company, and pointing out various promises allegedly earlier made to the employees regarding wage increases and other benefits.3 During the next few weeks after Hall's initial talk to the employees, Hall went around the plant, talking to the men at their work stations. In response to the question, "Did you attempt to find out from the men why they wanted a Union in the plant?" Hall replied, "Yes, I talked to all our men, most all of them." This was part of his "campaigning against the Union." In furtherance of this campaign, Hall also sought to as- certain why the employees felt they needed a Union. During the course of his travels around the plant, "most of them told me they didn't want a Union." The "job classification setup, " which had, for many of the positions in the plant, three ratings, with some eight different pay rates within each of the three, "seemed to be a bone of contention." Hall also testified that the men indicated great dissatisfaction with the lateness of the wage reviews, which were supposed to be given each six months. On discovering this, "The first thing I did was try to check on the reviews, on the reviews which I had paid no attention to, because it was supposed to be taken care of by other people . . . And I found, somewhat to my dismay, that we were way behind in having our re- views, properly on the six month basis." This was "probably the first part of August," according to Hall, and he "said we must immediately catch up and have these reviews as quick- ly as we can." Early in August, Malta reported to Hall that he "began to get caught up." Hall informed the employees, when he found out what their problems were, that he would take steps to take care of them. Hall further testified that he indicated to the employees, during the course of his cam- 2 Based on the testimony of Valera; Hall did not deny having made these statements. 3 Valera testified to a particular notice, which is not in evidence, the word- ing of which was denied by MacRae and Hall. I need not resolve the alleged "conflict" as it would not affect any findings or conclusions herein 373 paign, that he could not correct many of the things that were causing dissatisfaction until the Union business was re- solved. Asked by the General Counsel "Did you ask them whether or not they were interested in the Union when you discussed these things to [sic] them?" Hall said "I am sure I did." He also, in these conversations at the employees' work stations, "made it more positive that I was against the Union, . . . and I tried to convince them to be against the Union, too." Hall kept a personal running account of how he thought the election was going to come out. Although Hall, as noted above, admitted that he attempt- ed to ascertain employees' union sympathies during his anti- union campaign, he denied that he had flatly asked any employee whether he was for or against the Union, or any direct words to that effect. The testimony of perhaps a score of employees is to the contrary. Thus, employee Dennis Barret testified that Hall asked him "What do you feel about the Union?" John Buckley testified that Hall asked him "if I had an opinion on the Union." Thomas Koula testified that Hall asked him "how things were going and if I was going to stick with him." Norman LeBlanc testified that Hall asked him "what I thought about the Union." Raymond Paradis testified that Hall asked him "How I felt about the Union." William Lekaditis also testified that Hall asked him "how he felt about the Union." Hoyt Norris testified that Hall said to him "You're a strong union man, aren't you?" John Gallant testified that Hall asked him if he "was going to back him up, or vote for the union." Steven Smith testified that Hall asked him "if I was going to vote for the union." I shall not detail any further employee testi- mony in this regard, for I am satisfied that in accomplishing his avowed purpose of finding out how the employees felt about the Union, Hall did in fact ask the question in so many words, as the above, and other, employees credibly testified. The testimony of many employee witnesses also confirms Hall's having solicited from them what their grievances and dissatisfactions were. In many instances, such solicitation accompanied Hall's questioning them about their union sympathies. Hall also promised some of the employees ben- efits, sometimes accompanying the promise with the condi- tion "if we beat this union thing" (testimony of Michael Yedinak, who I credit); or "if the union didn't get in that he would like to see this wage problem straightened out and go into effect as soon as possible" (testimony of Thomas Gallant); or "if we can beat this thing, he was going to give the Class A Fitters $4.25 an hour";4 or that "if I give him a chance he is going to bring us to $4.25 an hour" (testimony of Walter Sebek); or that "if the union doesn't come in I am going to get the 5-1/2% the day after" (testimony of William Lekaditis); or that "the following Monday, after the Union election is over, that this would come into effect, this A,B, and C rating which would give equality to all the men" (testimony of Hoyt Norris); or that "things will change after the election, provising the union didn't get in" (testimony of Dante Tonet); or that "people working there as Fitters and Welders could go up, pertaining [sic] that the union didn't get in, could go up a certain amount of money" (testimony of John Gallant). Other employees testified to the same 4 Testimony of Norman LeBlanc, a class B fitter at the time. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD general effect, and I see no need for setting forth the sub- stance of all their testimony. I do not find that General Manager Theodore MacRae questioned any employees directly about their union senti- ments. Only one employee, John Keegan, testified that MacRae had questioned him,5 and MacRae specifically de- nied questioning anyone. However, MacRae did testify that although he never asked any employee how he felt about a union, he did ask them "how they felt about the company" in discussions in which the Union was mentioned, "proba- bly" raised by MacRae himself. MacRae, like Hall, kept a separate poll of how he thought employees were going to vote, as a result of his conversations with them. In addition to promising employees benefits during the course of his individual talks with them, Hall met with four employees, John Gallant, Tom Gallant, Al Hendrickson, and William Johnson on August 15. Hall told the four em- ployees at this meeting about his new wage plan, about his proposal to change the classification system, and that a general increase would "definitely happen." According to Hendrickson, Hall said he wanted to put his ideas into effect, but "the Union matter had to be settled first." Hen- drickson also testified, and I credit him, that Hall "did tell us to go out and spread the word." In fact, Hendrickson did go out and spread the word. President Hall testified that he learned from the employ- ees that they were particularly concerned about the lateness of the periodic wage reviews, supposed to be held every 6 months, and that he gave instructions that the general man- ager and the plant superintendent "catch up" and "have these reviews as quickly as we can." During the month of August, 44 employees received wage increases. According to the somewhat confusing records and equally confusing testimony of Tony Malta,6 it appears that there were about 37 "regular" reviews in August, and seven "incentive" re- views, or reclassifications. It is clear that only two employ- ees were reviewed without receiving any pay increase in August, one of them being Charles Valera, who first was told he was getting an increase, and then, by President Hall, that he was not. There were approximately 73 employees on the payroll at that time, with about 15 of them not having been hired before April. The previous February, there had been approximately 21 reviews (4 listed as incentive re- views), with 15 increases granted. The testimony of compa- ny officials indicates, and the documentary evidence bears out, that a review does not automatically result in an in- crease. In prior months, for example, there had been only 5 increases granted out of 24 reviews in June 1972, only 6 out of 10 in May 1972, and only 14 out of 24 in April 1972. I shall not detail all the evidence, both testimentary and documentary, with respect to reviews and wage increases; the above suffices for purposes of the issues in this i.ase. As already noted on several occasions, Charles Valera was one of two employees who were reviewed without re- ceiving wage increases during August. On August 4, 1972, 5 "What about this union thing9" was the way Keegan put it 6 His definition of "regular reviews" and "incentive" or "merit" reviews did not seem to accord with that of MacRae, nor did his own handwritten notations on employees' cards always accord with the stipulated payroll information in evidence Tony Malta gave Valera a review. Valera had not received any wage increases, although accorded reviews in April and June of 1972, since June 1971. Malta told Valera that he was giving him a raise. Valera then left for his 2-week vacation. He returned to the plant August 11 on personal business, and was met in the lunchroom by President Hall, who asked him to step outside, and told him he was rescinding the raise. When Valera asked why, Hall said it was because he did not do enough work for a class A fitter. Valera re- sponded, "If I don't do enough work, then why did they give me the raise in the first place?" Hall then said that he did not care what they did, he was rescinding the raise, and if Valera did not like the way he (Hall) did things, he "could go elsewhere." The conversation ended with Hall asking Valera "how in hell did you ever become shop committee chairman?" Valera answered that he was "elected by the men." The testimony of Hall, MacRae, and Malta with respect to the granting and rescission of Valera's August raise was confusing and self-contradictory. Hall testified that he heard about the raise from employees Perry and Quimby, that these two employees were upset about it, and that he then went to MacRae and "strongly recommended" that the raise be rescinded. MacRae, on the other hand, testified that he himself decided to rescind the wage increase, having heard about it by overhearing a conversation, although Hall testified that when he first questioned MacRae about Valera's raise, MacRae "didn't know about it." Valera was far and away the most active Union proponent among Respondent's employees. He was responsible for bringing the Union into the plant in the first place, and he was the only employee who passed out union authorization cards to other employees. Hall admitted that Valera had been some- what of a thorn in his side because of his activities on behalf of the shop committee, of which Valera was Chairman. As already noted, the Union demanded recognition, by letter, on August 3, 1972, and Respondent declined to rec- ognize the Union on August 4. The Union, on that date, had cards signed or purportedly signed by a substantial majority of Respondent's employees. Whether or not it had a legal majority will be considered in the "Discussion" section of this Decision B. Discussion and Conclusions The alleged violations of Section 8(a)(1) of the Act fall into three general categories: (1) coercive interrogation, (2) promises of benefits, and (3) granting of extraordinary ben- efits in the period between the advent of the Union and the election. The alleged violation of Section 8(a)(3) consists of the "rescission" of a wage increase presumably promised to Charles Valera. The General Counsel also contends that Respondent violated Section 8(a)(5) by refusing to bargain with the Union on and after August 4, 1972, and by certain "unilateral acts" and "refusals to furnish information to the union," subsequent to the August 31 election. Finally the General Counsel alleges as violative of Section 8(a)(1) cer- tain conduct of Respondent's president, Edward Hall, which occurred during a hiatus in the hearing before me. STEEL-FAB, INC. 375 1. The 8(a)(1) and (3) violations cial agents" Albert Henrickson, Jr., or Thomas A. Perry's That Respondent violated Section 8(a)(1) by coercively interrogating its employees is fully established by the testi- mony of Edward Hall, Respondent's president, taken to- gether with that of employee witnesses too numerous to mention here. I have found that Hall asked a great many employees how they felt about the Union, or words to that effect, while engaging in his "personal campaign" against the Union. As the facts reported above show, many of these interrogations occurred in conjunction with Hall's attempts to ascertain the source of employee dissatisfaction, and Hall often accompanied the questioning with promises of bene- fits, and assurances that the conditions being complained about would be remedied, sometimes making such benefits contingent upon the Union losing the impending election. In these circumstances, I cannot accept Respondent's argu- ment that because Hall never sought to determine who had actually signed authorization cards, or because the "nature and tone of his talks with employees was affirmative and not inquisitive," or because the union campaign was the pri- mary matter of discussion among the employees during that period, the questioning somehow became benign, rath- er than coercive in nature. Respondent also argues that Hall's "frank and open ad- mission of such discussion is indicative of the harmlessness of the discussion and the absence of any intent to violate the Act" Perhaps lack of intent is suggested by Hall's "open- ness," but "harmlessness" does not follow from frankness or openness. Nor is the fact that "no one felt restrained from being honest and sincere as to their interest in the Union," which Respondent claims is manifest from all of the em- ployees' testimony, indicative of the fact that "the employ- ees felt perfectly safe." Indeed, even direct employee testimony that they did not feel coerced would have no bearing on whether as a matter of law Respondent's con- duct was coercive. I question, moreover, the factual basis for Respondent's contention in this latter respect, as Hall himself indicated in his testimony that he was quite sur- prised by the vote at the election (36 to 35 against the Union), having believed as a result of his survey that the overwhelming majority of the employees would vote against union representation. Perhaps the employees were not so honest and sincere with Hall; perhaps they were in fact coerced. In any event, as I have indicated, I find that Respondent violated Section 8(a)(1) by the systematic interrogations, as described above, of its president, Edward Hall. I conclude also that General Manager MacRae's more subtle attempts to ascertain the extent of union sentiment in the plant vio- lated Section 8(a)(1). As MacRae's own testimony estab- lishes, he did seek to get employees' views, not by asking them whether they were for the Union, but whether they were for the Company. With Hall himself during the same period asking the more direct question, it is unlikely that any employee would fail to realize the import of MacRae's questioning, particularly since "union" was prominently mentioned in most of his discussions with the employees. I do not find any substantial evidence to support the General Counsel's allegations of interrogation by Tony Malta or Robert Rossitter. Nor do I find that alleged "spe- conduct entailed any violations of the Act, for I do not regard either as a supervisor or as an "agent" within the meaning of the Act. As noted below, Henrickson did play a role in letting employees know about certain benefits Hall was dangling before them as part of Respondent's antiunion campaign, but in this latter respect he was only a conduit for Hall's unlawful conduct, not an "agent" in his own right. I find also that Respondent violated Section 8(a)(1) by questioning its employees with respect to the sources of their dissatisfaction, and by both promising and bestowing vari- ous economic benefits to the employees for the purpose of inducing them to refrain from supporting, or voting for, the Union. The evidence detailed above clearly demonstrates that Hall in particular, and MacRae and Rossitter as well, did promise wage increases, changes in the classification system, and the like, in some instances making the granting of the benefit contingent on the Union not becoming the employees' bargaining representative, and in most instanc- es, as to Hall, accompanying the promise with interrogating the employees about their union sentiments. As noted above, Hall held a meeting with four employees about August 15, outlining his plans for improving the class- ification system, restructuring the wage rates, and indicating his intent to give a general wage increase when the "union business" was over. He told the employees at this meeting to "spread the word" to the other employees. This too con- stituted an obvious promise of benefit to the employees. Telling the employees to "spread the word" plainly demon- strates Respondent's purpose to capitalize on its promises, so that their impact would be broader than just to the four men at the meeting, or merely to those that the four hap- pened casually to mention the matter. Enlisting employee aid in such dissemination, however, does not make the em- ployee an agent of Respondent, and I reject the General Counsel's contention that Hendrickson, or Perry in another respect, was in fact an agent of Respondent so as to attrib- ute any conduct on their part to Respondent. As to former Plant Foreman Rossitter's involvement, it stems from his having advised Norman LeBlanc on,August 12, that he was one of three employees in line for the next foreman's job, at about the same time that Hall had interro- gated LeBlanc about his union activity, and, about a week later, telling LeBlanc that he (Rossitter) "felt I would be better off without a union and that I could go further with- out one.,, As related above, Hall himself testified that as a result of the employees' expressed concern about the lateness of the reviews, Hall set about to "immediately catch up and have these reviews as quickly as we can." Respondent did "catch up." During the month of August there were 46 reviews, resulting in 44 wage increases. One of the two which did not result in an increase was with respect to Charles Valera, who in fact had been "recommended" for the increase by Tony Malta at the review, but had the increase rescinded. As discussed below, -1-am finding this rescission violative of Section 8(a)(3) and (1) of the Act. Never before had Respondent reviewed so many employ- ees in a single month. The previous high, as I read the documentary evidence, was 33 m December 1971, which, since it was followed by only two reviews in January of 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1972, I infer was attributable to the "Christmas spirit." And never before was the percentage of wage increases so high, as a result of the reviews, as during August. By contrast, in June 1972, there were 24 reviews, with only 5 wage increas- es; in April 1972, there were 24 reviews with only 14 wage increases.? The highly disproportionate number of reviews and of wage increases, standing alone, establishes a pattern that can only be attributed to the advent of the Union. See Gruber's Food Center, Inc., 159 NLRB 629, 636-637; Kaw- neer, Inc., 164 NLRB 983, 985, enfd. 413 F.2d 191 (C.A. 6, 1969). Coupled with Hall's own admitted intent to cure employee dissatisfaction by curing the lateness of the re- views, there is no question but that the inference drawn from the numbers is correct. I conclude, accordingly, that Respondent violated Section 8(a)(1) of the Act by bestow- ing upon its employees an excessive number of wage in- creases in August 1972. It is a bit difficult to ascertain exactly how many reviews, or wage increases, would normally have taken place during that period, particularly in the light of the Company's long- standing failure to adhere to its own policy of periodic 6-month reviews prior thereto. Thus, it is no defense to this allegation to show, as Respondent attempts to do, that a large number of the "reviews" during August were either "on time," being approximately 6 months after a prior re- view, or "late," as more than 6 months after a prior review. The "catch up" itself, attributable to Hall's desire to amelio- rate the dissatisfaction, and part of his "campaign" against the Union, suffices to negate that defense. Indeed, since "on time" reviews had not been the pattern in the past, it can hardly be argued that they suddenly became the norm. It is true that employees were not specifically told, with respect to reviews, that they were being given in return for a vote against the Union. But the impact of such a large number of wage increases, virtually admitted as one way of curing the dissatisfaction that engendered the desire for a union, could not have been lost on the employees. This impact surely was greatly magnified by the fact that the one em- ployee whose increase was actually rescinded during that period after it had been promised was Charles Valera, the prime moving force of the Union's drive to organize Steel- Fab's employees. The rescission of Valera's increase not only served to emphasize the purpose, and enhance the effect, of the many increases given to the employees after the Union's advent; it also was itself a violation of Section 8(a)(3) and (1) of the Act. The facts set forth above with respect to its rescission amply support the inference that it occurred because of a combination of Valera's role as the employee leader of the union movement, and his gadfly role as chairman of the shop committee, during the preceding months. Respondent argues that the granting of the increase by Malta "was un- doubtedly influenced by Valera's position in Union organi- 7 The record is confusing , as noted above, as noted above with respect to "reviews," in that Malta and MacRae testified to "incentive ," "merit," and "regular" reviews or increases, without any clear delineation of the differ- ences involved Some of the increases, the testimony shows, results from changes in an employee's classification I have, however, lumped all of them together in this discussion under the term "review," for the numbers involved are the significant feature , rather than the precise basis for the wage increase, during the preelection period. zational efforts," that Malta "was faced with a problem and took what he figures was the easy way out," and as MacRae testified, "We were in a very critical time right there, be- cause I knew that Charlie had been named in the correspon- dence from the union, and that whether I did or did not allow a raise for Charlie, I was in trouble." I cannot agree that there would have been "trouble" by keeping in effect a raise to Valera during a period when some 46 of Respondent's employees were receiving raises, with Valera himself not having been reviewed since December 1971, and not having received a wage increase since July 1971, 13 months earlier. Hall's intervention 8 itself, was unprecedented; he had never before intervened in such matters, had never before rescinded any wage increase granted an employee. The ver- sions of MacRae and Hall were in sharp conflict with re- spect to the rescission of Valera's increase. Hall testified that he strongly recommended to MacRae that the raise be rescinded. According to Hall, he first learned about the raise from two employees, Perry and Quimby, who were purportedly upset that Valera got a raise when they did not. Hall then questioned MacRae about Valera's raise, and, according to Hall, MacRae "didn't know about it." Hall then said "you better check with Mr. Malta because person- ally I don't approve of that particular increase and in fact, I am very much against it. And.he did check with Mr. Malta and I understand that Mr. Malta said well, I promised I would try to get him a raise, but I know I made a mistake." MacRae testified that he heard about the increase to Valera by overhearing a conversation in the foreman's office, and that he then wrote a note to Hall informing Hall about the increase, and that he subsequently told Hall the increase should be rescinded, and Hall- agreed with him. As has been stated, Valera was the prime mover, among the employees, in the Union's organizational drive. It was he who first contacted union officials. It was he who passed out union authorization cards to many employees in the plant. He had also been chairman of the shop committee, and Hall, when asked by the General Counsel, "Don't you feel he [Valera] has been somewhat of a thorn in your side?" responded "Because of his activities on the committee, to a little extent, but to a much greater extent he doesn't work hard." Hall also indicated in his testimony that he was unaware of prior promotions or merit increases having been accorded to Valera. Assuming, arguendo, that Malta was influenced by Valera's position as the chief union adherent among the employees to promise him the raise in the first place, that would only serve to emphasize the discrimination involved, and the lesson to the other employees manifest, in its subse- quent rescission. The extensive coercive interrogations, the promises of benefits, and the bestowal of benefits, all keyed to Hall's "personal campaign" against the Union, coupled with the unprecedented nature of the rescission of the wage increase, with Hall intervening in a matter never before of direct concern to him, as well as the conflicting stories of 8 Were Ito believe that MacRae independently decided to rescind Valera's raise, and therefore that it was only a coincidence that Hall made the same decision at the same time , I would nonetheless conclude that the rescission was discriminatory, MacRae, rather than Hall, then being the Steel-Fab official acting for discriminatory reasons. STEEL-FAB, INC. 377 Hall and MacRae, all lead inescapably to the inference that Respondent was motivated, in rescinding Valera's increase, by his open espousal of and leadership in the Union's orga- nizational drive, as well as his having been a leader of the employees as chairman of the employee shop committee. I conclude, accordingly, that Respondent thereby violated Section 8(a)(3) and (1) of the, Act. President Hall, about December 20, 1972, told employees Quimby and Koula that he would meet with the shop com- mittee at its next scheduled meeting about a week later only if Valera were not present, because Valera had called him a liar in the courtroom. Quimby and Koula reported this to Valera. On December 26, all three employees reported to Hall's office for the scheduled meeting. Hall then told Val- era that he wasn't going to talk to him at the meeting, and that Valera was excused. He left, and Quimby and Koula left with him. The next day, Ted Hall, Jr., concededly a supervisor, tolda meeting of all the day-shift employees that Valera should step aside, because he had called his (Hall, Jr.'s) father a liar under oath. The occasion for Hall's ire was the following colloquy at the second day of the hearing before me. Respondent's counsel asked Valera "Did you hear Mr. Hall testify yesterday you swore at him?" Answer: "Yes, I did." Question: "Are you telling us that he is a liar?" Counsel for General Counsel: "Objection." Judge Welles: "Overruled." Question: "Are you telling us that he is a liar for the statement he made yesterday?" Answer: "For the things that he said, yes." Manifestly, Valera was disagreeing with testimony previ- ously given by Hall. But he was not himself using the word "liar," the word was used only by Respondent' s counsel, and Valera was hardly in a position to do other than agree, with the limitation "for the things that he said," without in effect changing his own testimony. This could scarcely be characterized as impugning the character of President Hall. Even if it could, Hall's refusal to meet with the shop com- mittee, as long as Valera was there, compounded by his son's telling the employees that Valera should be removed from the committee, as a reprisal for what he said in testify- ing in this case, constitutes a clear violation of Section 8(a)(1) of the Act. 2. The refusal to bargain a. The unit appropriate for bargaining The parties agree that the appropriate unit, the one in which the election was held, is as follows: All production and maintenance employees of Respon- dent employed at its Fitchburg, Massachusetts plant, excluding office clerical employees, professional em- ployees, guards, foremen, and all supervisors as defined in Section 2(11) of the Act. b. The majority status of the Union The General Counsel introduced into evidence 55 union authorization cards in a unit of 73 employees. Forty-four employees testified with respect to their cards. Forty-three of these employees identified their signatures on an authori- zation card. One, Raymond Paradis, testified that he was handed a card by Charles Valera, filled it out and handed it back to Valera, and intended to sign it, but unaccountably omitted to do so. I have no reason not to credit Paradis' explanation, and therefore no hesitancy in counting his card. Francis Deschene testified that he signed a card after it was read to him by his wife-he does not read English. However, he also testified that he did not know what the card meant, and that he signed it because he thought ev- erybody had to sign a card. In these circumstances, I shall not count Deschene's card. Many of these 43 cards were obtained by employees at the plant entrance, where they were being distributed by Union agents. Attached to these cards was a union flyer entitled "Simonds Sez." After describing a union victory the preceding year at another company in Fitchburg, and the wage and fringe benefits obtained in the Union's contract with that company, Simonds Saw & Steel Division of Wal- lace-Murray Corp., the flyer went on to say "HOW ABOUT YOU? Today, the Steelworkers' Union is offering you the same opportunity to have a voice in your wages, hours, and working conditions. To start the ball rolling, you should sign the attached card and return in the postage-paid envelope. When 60% of the employees have signed, we will petition the United States Government to conduct a secret ballot election. We're offering the tools to a better way of life, the decision to use them is yours." The Union agents distribut- ing the cards with the flyer attached did not have any con- versations with the employees to whom they gave them, other than a "Good morning," or something of that nature; they had been instructed not to carry on conversations with the employees, but to refer problems or questions to Union Representatives Joyce and Murray. Respondent argues that all persons who signed cards received in this manner were misled by the above-quoted language, and that those cards should not be counted .9 The Supreme Court, in N.L.R.B. v. Gissel Packing Co., 39,5 U.S. 575, 606 (1969), said that "employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disre- gard and forget the language above his signature." In this case, the authorization card stated: "°I hereby accept and request membership in the UNITED STEELWORKERS OF AMERICA, and of my own free will hereby authorize the United Steelworkers of America, its agents or represen- tatives, to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employ- ment, or other conditions of employment." This is, of course, and Respondent does not contend otherwise, a per- fectly straighforward, clear, and unambiguous card. I am 9 Union Representative Murray testified that the cards with the flyers attached contained the language "If you wish to serve on the Organizing Committee please check this box," while those given to Valera did not con- tain this language Respondent argues that as the cards of some of the employees who testified they were given cards by Valera contained this language, they must have been received at the plant entrance, and therefore the employee recipients must have received the above flyer. In view of my disposition of Respondent's contention that any card signed by a recipient of the flyer is invalid, I need not determine precisely how many cards were distributed this way and how many by Valera 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfied that the language of the flyer does not nullify the clear card language Southwest Regional Joint Board v. N. L R.B 441 F.2d 1027, 1033-1034 (C.A.D.C., 1970). No other basis is asserted for invalidating these cards. The above conclusion, that nothing in the union flyer invalidates the cards, means that the Union's majority is established, 43 valid cards out of 73 employees, without more. As to nine other cards introduced by the General Counsel, no testimony was presented, but cancelled payroll checks were introduced, presumably endorsed by the signer, for the purpose of comparison with the signatures on the authorization cards. There is, of course, no testimony that the payee on the check actually signed it, but to the extent that the endorsement on a paricular check is identical with the signature on an authorization card, it staggers the imagi- nation to conceive that each could have been forged As to seven of the nine, I have no doubt whatsoever that the signatures are identical. These are: Frusciante, Vassallo, Richard, Norton, Martin, Allard. and Faatz. In the circum- stances, I have sufficient doubt, although the signatures are similar, so as not to count the cards of Guillemette or Bur- gess. The 7 cards I am counting brings the total of valid cards to 50. The Union thus had a clear majority of the employees signed up when it demanded recognition on Au- gust 3, 1972. c. The refusal to bargain The unfair labor practices already found in this case were pervasive, in that almost every employee in the plant was directly subject to interrogation by Respondent's President, Edward Hall, both with respect to his union sympathies and the reasons for employee dissatisfaction. Furthermore, Re- spondent took steps to eliminate the causes of dissatisfac- tion, and hence of the desire for union representation, by either curing or promising to cure, in many instances mak- ing the fulfillment of the promise contingent on the Union losing the election, the stated sources of dissatisfaction. Fur- thermore, Respondent rescinded, for discriminatory rea- sons, the wage increase promised to the employee responsible for bringing in the Union, Charles Valera. Fi- nally, Respondent continued to give the employees benefits after the election was lost by the Union 36 to 35, and while objections to the election were pending. In these circum- stances, it is apparent that traditional remedies cannot rad- icate the impact of Respondent's unlawful conduct, and that the only available effective remedy is a bargaining order. N.L.R.B. v. Gissell Packing Company, supra at 614; Skaggs Drug Centers, Inc., 197 NLRB 1240; Soil Mechanics Corp., 200 NLRB No. 60. I conclude, accordingly, that Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Union on August 4, 1972. d. Further alleged refusal-to-bargain conduct The General Counsel contends that Respondent also vio- lated Section 8(a)(5) of the Act by certain conduct occurring after August 4, 1972 , such as the refusal to furnish the Union certain information requested by it, and the " unila- teral" implementation of various wage increases and other benefits. Contrary to the General Counsel, I view these matters as wholly derivative from the refusal to bargain I have already found. In other words, were there no flat refus- al to bargain found unlawful, there would be nothing wrong with "unilateral" action taken thereafter. With a refusal to bargain, and an order to bargain to remedy that refusal, it would be pointless to find that everything Respondent did after August 4 with respect to its employees further violated the Act, and equally pointless to issue specific remedial orders for such alleged violations. The remedy I am recom- mending thus needs no further embellishment. CONCLUSIONS OF LAW 1. By unlawfully interfering with, restraining, and coerc- ing its employees, as found herein, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discriminating against Charles Valera because of his union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By refusing to bargain with the Union, on and after August 4, 1972, when the Union represented a majority of the employees in the appropriate unit described above, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and that it take certain affirmative action necessary to remedy the unfair labor practices and to effec- tuate the policies of the Act. Included in this affirmative action will be a recommendation that Respondent make whole Charles Valera for losses he suffered because of the rescission of his wage increase in August 1972, with the payment of interest at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices found also interfered with the election held on August 31, 1972, I recommend that the election be set aside. And, in view of my finding that a bargaining order is warranted, I further recommend that a petition in Case 1-RC-12298 be dismissed and that all pro- ceedings held in connection therewith be vacated and set aside. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: STEEL-FAB, INC. 379 ORDER 10 Respondent, Steel-Fab, Inc., Fitchburg, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union activi- ties. (b) Promising employees benefits to dissuade them from union activities. (c) Bestowing benefits on employees to dissuade them from union activities. (d) Threatening employees with reprisals because of the nature of their testimony in a National Labor Relations Board proceeding. , (e) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discriminatorily rescinding wage increases to employees of their union or other concerted activities. (f) Refusing to recognize United Steelworkers of Ameri- ca, AFL-CIO, as the exclusive collective-bargaining repre- sentative of its employees in the following appropriate unit: All production and maintenance employees at its Fitchburg, Massachusetts, plant, excluding office cleri- cal employees, professional employees, guards, fore- men, and all supervisors as defined in Section 2(11) of the Act. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed by the Act. i° In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make whole Charles Valera, in the manner set forth in the section entitled "The Remedy," for any loss of earn- ings suffered by reason of the discriminatory rescission of his wage increase. (b) Upon request, recognize and bargain with United Steelworkers of America, AFL-CIO, as the exclusive collec- tive-bargaining representative of the employees in the afore- said appropriate unit respecting rates of pay, wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (c) Post at its premises in Fitchburg, Massachusetts, cop- ies of the attached notice marked "Appendix." 11 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps the Respondent had taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby' is, dismissed insofar as it alleges unfair labor practices not specifically found herein. IT IS FURTHER ORDERED that the election held on August 31, 1972, be set aside, and that the petition in Case 1-RC-12298 be dismissed, and that all proceedings held in connection therewith be vacated and set aside. i i In the event that the Board's Order is enforced by a Judgment of a ' United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."