Craw & Son

CRAW & SON Leroy W. Craw, Jr., Vernon E. Craw and Daniel G. Leonard, d/b/a Craw & Son and Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO. Cases 6-CA-7845 and 6-RC- 6950 December 28, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On October 22, 1975, Administrative Law Judge Samuel Ross issued the attached Decision, in this proceeding. In his Decision the Administrative Law Judge found that Respondent has engaged in certain unfair labor practices and recommended that it take specific action to remedy such unfair labor practices. He further recommended that the election held on October 25, 1974, in Case 6-RC-6950, be set aside and that the said case be dismissed. Thereafter, on December 1, 1975, Respondent filed with the National Labor Relations Board two docu- ments entitled, respectively: "Exceptions to the Administrative Law Judge's Decision" and " 'Bur- den of Proof Information." The Board rejected the aforesaid documents, fmding that they failed to comply with the filing requirements of the Board's Rules and Regulations, Series 8, as amended. Ac- cordingly, on December 11, 1975, the Board adopt- ed 1 the findings, conclusions, and recommendations of the Administrative Law Judge, as contained in his Decision. On April 21, 1976, the United States Court of Appeals for the Third Circuit denied the Board's petition for summary judgment and remanded this proceeding to the Board for consideration of the merits of Respondent's exceptions and " `Burden of Proof' nformation,"2 further specifying, on May 11, 1976, that the materials included in the latter docu- ments are to be considered properly a part of the record in this case.3 The Board has accepted the remand from the court as the law of this case. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and the " `Burden of Proof Information" and has decided to affirm the rulings, findings,4 and conclusions5 of the Administrative Law Judge and to adopt his recom- mended' Order.6 227 NLRB No. 75 ORDER 601 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Leroy W. Craw, Jr., Vernon E. Craw and Daniel G. Leonard, d/b/a Craw & Son, Altoona, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order of the Adminis- trative Law Judge, except that the attached notice is substituted for that of the Administrative Law Judge. IT is FURTHER ORDERED that the election conducted in Case 6-RC-6950 on October 25, 1974, be, and it hereby is, set aside, and that the petition in said case be, and it hereby is, dismissed. 1 Not-printed in NLRB volumes ofdecisions. 2 Sub nom. N.LR.B. v. Leroy W. Craw, Jr., Vernon E Craw and Daniel G. Leonar4 d/b/a Craw & Son, unpublished order in Case 76-1382, dated April 21, 1976. 3 Id, dated May 11, 1976. 4 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all ofthe relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 5 We agree with the Administrative Law Judge's conclusion that the strike here in question was an unfair labor practice strike . Accordingly, we find it unnecessary to pass on his additional holding that the Respondent's failure to reinstate employees when they sought to return to work would have violated the Act in the circumstances of this case even if the strike were deemed to be an economic one. 6 In considering the record in this proceeding , we have carefully examined the materials submitted by Respondent as apart of its " `Burden of Proof Information" and find nothing therein which is inconsistent with the facts found or the conclusions reached by the Administrative Law Judge in support of his recommended Order. Indeed, in at least one respect the materials support the aforesaid findings and conclusions. Thus, they reveal that the Respondent advised employees that wage increases, which were customarily given to them at regular intervals, would be discontinued"... if we hold an election and we start negotiating in good faith and don't come to an agreement over a two year period ...:. See The Gates Rubber Company, 182 NLRB 95(1970). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had an opportuni- ty to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board. WE WILL NOT do anything that interferes with these rights. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge, refuse to reinstate, or otherwise discriminate against you for engaging in a protected strike or any other of the activities listed above which are protected by Section 7 of the National Labor Relations Act. WE WILL NOT threaten you with layoffs, loss of your periodic wage increases, or any other reprisal to discourage your support for or adherence to Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, or any other labor organization. WE WILL NOT photograph you while you are engaged in peaceful picketing or in any other concerted activity protected by Section 7 of the National Labor Relations Act. WE WILL respect your rights to self-organiza- tion, to form, join, or assist a labor organization, and to bargain collectively through a representa- tive of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of those rights. Since it was decided that we violated the Act by failing and refusing to reinstate and reemploy John D. Vance, Frank E. Hebler, Michael P. McDonough, and, George R. Ivory on October 4, 1974, when they unconditionally applied for reinstatement, WE WILL offer them full reinstate- ment to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs and WE WILL pay them with interest for any loss they suffered by reason of our failure to reinstate them then. WE WILL on request, bargain collectively with Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, as the exclusive representative of the employees in the unit de- scribed below with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All mechanics, mechanic helpers, and plant clerical employees employed by us at our Altoona, Pennsylvania, facility, excluding all other employees and guards, professional employees, and supervisors as defined in the Act. LEROY W. CRAW. JR., VERNON E. CRAw AND DANIEL G. LEONARD, D/B/A CRAW & SON DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: Case 6-CA- 7845 is based on a charge filed by Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, on October 21, 1974, which was amended on November 19 and 29, 1974, and on a complaint which issued on May 29, 1975, against Leroy W. Craw, Jr., Vernon E. Craw and Daniel G. Leonard, d/b/a Craw & Son (herein called Respondent or the Company) which alleges that Respon- dent engaged in unfair labor practices within the meaning of Section 8(axl) and (3) and Section 2(6) and (7) of the Act by engaging in various acts of interference with, and restraint and coercion of, employees in the exercise of rights guaranteed in Section 7 of the Act, which caused and prolonged a strike by the employees, and by failing and refusing to reemploy or reinstate the striking employees when they unconditionally offered to return to work because they had engaged in the said strike. Respondent filed an answer to the complaint which denies the substan- tive allegations of the complaint and the commission of unfair labor practices. Case 6-RC-6950 is based on a petition filed by the Union for certification as the collective-bargaining representative of Respondent's employees pursuant to which an election was conducted by the Board on October 25, 1974, which resulted in one vote for the Union, five against, and eight challenged ballots. The Union thereafter filed timely objections to the election which in substance, as amended, alleged that Respondent interfered with the holding of a fair election by the conduct alleged as unfair labor practices in Case 6-CA-7845, and by the hiring of allegedly "permanent replacements" for the employees who struck and picketed in protest of Respondent's unfair labor practices. Inasmuch as the Union's objections to the election encompassed the same conduct on which the Regional Director issued the complaint in Case 6-CA- 7845, on May 29, 1975, he issued an order consolidating both cases for hearing and deferred disposition of the challenges to the ballots of the strikers and their replace- ments pending the resolution of the alleged unfair labor practices. These consolidated cases were heard before me in Hollidaysburg and Altoona, Pennsylvania, on August 4 and 5, 1975. Upon the entire record, including my observation of the witnesses' and their demeanor, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent is a copartnership whose sole place of business is located in Altoona, Pennsylvania, where it is engaged in the fabrication, installation, and nonretail sale of heating and ventilation systems. During the 12-month period preceding the issuance of the complaint herein, Respondent sold goods and materials valued in excess of $50,000 to employers who are directly engaged in interstate CRAW & SON commerce. Upon the foregoing undisputed data, Respon- dent admits and I find that it is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent also admits and I fmd that Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Short Summary of the Basic Facts On September 9, 1974,1 following an antiunion speech and talk to all his employees by Vernon E. Craw, one of Respondent's partners who is known as Mike, 5 of Respondent's 10 employees went out on strike and com- menced picketing the Company's office and shop located a block apart from each other. During the strike, Respondent took photographs of the striking employees while they were engaged in peaceful picketing, Mike Craw allegedly threat- ened to physically assault the Union's business agent, and Respondent, by letter, notified four of the striking employ- ees that they had been permanently replaced and that their employment had been terminated. The strike ended on October 3, and on the following day, all five of the striking employees applied for reinstatement to their jobs, but only one was put back to work, and the others were told to file written applications for employment, a requirement to which- they had not been subjected-when they were hired originally by Respondent.. All four filed the required applications, but none of them has ever been recalled to work. B. The Issues Presented for Determination The issues thus presented for-resolution in this case are as follows: Whether Craw's speech and talk to the employees on September 3 violated Section 8(a)(1) of the Act. Wether Respondent's photographing of the peaceful picketing of its employees violated Section 8(a)(1) of the Act. Whether Craw threatened to physically assault the Union's business agent, and if so, whether the said threat violated Section 8(aXI) of the Act. Whether the strike of Respondent's employees which commenced on September 9 was motiva- ted in part by unfair labor practices of Respondent. Whether Respondent's letters to four of the striking employees which stated that they had been permanently replaced and that their employment had been terminated violated Section 8(a)(1) of the Act. Whether an order requiring Respondent to recognize and bargain with the Union as the collective-bargaining representative of its employees is warranted under the circumstances of this case. All dates hereinafter refer to 1974 unless otherwise noted. ? G. C., Exh. 2 to 7. The six who signed cards at this meeting were. William Victor Davis, Paul Farber, John D. Vance, Frank E. Hebler, Michael P. McDonough, and George R. Ivory. 603 C. The Union's Demand for Recognition In August 1974, Respondent had 10 employees, including Jay Moran, who works in Respondent's office and is the husband of the Craws' sister. On August 12, six of Respondent's employees attended a union meeting at the Holiday Inn in Altoona, Pennsylvania, with Richard L. Steward, Jr., a business representative of the Union. At the conclusion of the meeting, all six of the employees signed cards authorizing the Union to represent them as their collective-bargaining representative.2 About a week later, a seventh employee (Joseph F. Bumberger) signed a like card. On August 21, Union Representative Steward visited Respondent's place of business and met with Mike Craw, his brother Leroy W. Craw, Jr. (who is known as Steve), and with Jay Moran who was introduced to Steward "as the office manager." Steward told the Craws that he had union authorization cards signed by all their employees - this admittedly "wasn't entirely true" - and he asked the Craws to recognize the Union and to "sign a letter of intent to begin negotiations." Mike Craw refused to look at the union authorization cards which Steward proffered, and he also refused to look at any agreement unless Robert Tabit, the regional executive director of the Associated Builders and Contractors, was present to counsel him in the matter. Steward told Craw that he didn't want to meet with Tabit, and he again asked Craw to look over an agreement. Craw again refused to do so without having "an independent opinion" from Tabit. Steward said, "You realize, Mr. Craw, we can put a picket line around your place tomorrow." Craw rejoined, " . . . you are making threats, typical union threats, and when somebody holds a club over our head, we fight." Craw explicated that the club to which he had referred was not "a physical club," but rather Steward's threat of a picket line, and he added, "we don't take threats lying down. We fight legally or by whatever means we have to." Steward then agreed to meet with Craw and Tabit on the following Tuesday (August 27), and after he was given a tour of the Respondent's shop by Craw, they parted "in a friendly situation." 3 Following the Union's August 21 demand for recogni- tion, Respondent retained counsel and, acting on his advice, Craw sent a telegram to the Union canceling the meeting for the following Tuesday, and he thereafter refused to further discuss the subject of negotiations with Steward and referred him to his attorneys. D. Craw's Antiunion Speech and Talk to Respondent's Employees On September 3, Respondent called a meeting of all of its employees for the purpose of discouraging their selection of or continued adherence to the Union as their collective- bargaining representative. The meeting took place in Respondent's shop and lasted for 4 hours. During the first part of the meeting, Mike Craw read a 22-page speech which had been furnished to him by Respondent's counsel.4 Then, after "a Coke break," Craw responded extemporane- 3 The findings in the foregoing paragraph are based on the testimony of both Steward and Mike Craw whose versions of this meeting were not materially different, and I credit them in these respects. 4 Resp. Exh. 1. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ously to questions from the employees which his speech had evoked. During the speech, and/or in the informal ques- tion-and-answer session which followed, Craw told the employees, inter alia: 1. That another company, R. D. Goss, had negotiated with the union which represented its employees for 2 years; that he similarly "could drag out" the negotiations with the Union for "as many years as possible" until he achieved "a contract which suited him," as long as he bargained in good faith; and that, during these long negotiations, "there would be no pay raises given out." 5 2. That there had never been a layoff at Respondent's shop; that he had given his employees "steady work - week in and week out, 52 weeks every year, regardless of business conditions"; 6 however, if the Union came in, "there would be a lot more layoffs because these small jobs that he had in the shop - that these small customers would not be able to afford to pay the union rate for jobs; and, therefore, there would be more layoffs in our shop." Furthermore, if the Union came in, welding and painting work (which currently was being done by some of the employees and by one of the partners) would have to be done by a union welder and painter, and while waiting for them to come in and do that work, the employees would be laid off if there was no other work for them to do in the interim.7 E. The Strike Vote on September 4 On the evening of September 4, following Craw's antiun- ion speech, eight of the Respondent's nine production employees attended a union meeting with Union Represen- tative Steward's At this meeting, the employees reported to Steward what Craw had said in his speech and in his answers to questions on September 3, including his state- ments that, if the Union came in, its restrictive work rules and classifications (which allegedly required welding and painting to be done only by union welders and painters) might result in layoffs and unemployment, and that negotiations would be protracted and there would be no wage increase during the pendency of the negotiations. The employees also told Steward that the number of Respon- dent's work orders had decreased substantially during the past 8 days, and that they were concerned that Craw was deliberately refusing to accept orders in order to strengthen Respondent's position in respect to the Union. At the conclusion of the discussion, Steward conducted an infor- mal strike vote by asking each of the employees individual- ly what he thought about going on strike. The employees voted to strike, but decided to wait until the following Monday before doing so in order to first get their pay on Friday which was payday. Respondent's employees, who testified regarding this subject matter at the hearing, stated their reasons for voting to strike and for striking as follows: 5 The findings above are based on the credited testimony of Vance, McDonough Davis, Ivory, and Hebler. Craw's written speech stated in this respect; " n the meantime, during this long negotiation period your wages would be frozen by law " and "we would never agree to the type of contract this Union wants!" Resp. Exh.1, p. 9. 6 Id at 15. 7 The findings above are based on the credited testimony of Vance, McDonough, Davis, Ivory, and Hebler. 1. It was mostly a little bit of everything. It was primarily the fact that - he [Craw] did mention it that as long as there would be - that he would bargain, that there would be no pay raise.9 2. At that time, what we thought was that the workload was going down and a lot of things that were said at the meeting the day prior, that negotiations could go on for a couple of years and there would be no pay increases; and, at that time, we already had an increase coming and nobody had seen it as of then. Just things, then, didn't look right, or in our favor at all.lo 3. ... mainly because of-that the company wouldn't recognize the union as the bargaining agent even after we all signed union cards, showing that we wanted the business agent to represent us - the union to represent us. Mostly because of there weren't going to be any pay raises, we were going to have to pay fines. You know, the way Mike talked about it, it sounded like a threat or something, you know. We aren't going to get any pay raises, that negotiations could drag out; Mike said that they had a year to negotiate in good faith and that negotiations could drag out this long. And he gave as an example of R. D. Goss, that their negotiations drug out for two years." 4. At the union meeting, we discussed everything that was said at the meeting the previous day at Craw & Son; and we discussed all of the false state- ments that was made about the union as far as who was allowed to do what and whether we got fined if we didn't attend union meetings and whether we got fined if we didn't attend - or contribute to these certain political funds and so forth. We discussed Mike Craw's negative attitude towards the union and not even wanting to even sit down and talk to Richard Steward. He didn't even want to listen to his [Craw's ] misconceptions about the union. And we talked about these threats, mostly if they were going to negotiate the contract, we were not going to get any raises, who knew how long, maybe a year, maybe two years; and we discussed the workload coming into the shop. That was my primaryjob, in the shop, and I could see that - I mean, I've seen it go up and down quite a few times, but I've never seen it go to just about nothing in a matter of eight days. We were figuring that maybe Mike Craw was cutting down his workload so that he 8 Willis Gibson was the only production employee of Respondent who did not attend- 9 Employee Vance so testified. 10 These quotes are from the credited testimony of employee McDo- nough. 11 The foregoing are quotes from employee Davis' credited testimony. CRAW & SON could lay us off before we had a chance of maybe even having an election. - And, at this meeting, we decided to go on strike because from what we could see, Mike Craw's negative attitude plus all the threats that we got about the union, false statements, we seen things were just at a standstill and we decided to go on strike because - well, just what I told you, that things looked very bad, as far as any negotiations coming up on their own, you know.12 Union Representative Steward summarized the reasons expressed at the September ,4 meeting for going on strike as follows: Mike Craw's attitude in decreasing the workload, the meeting with the men where it was alleged that they would be subject to excessive dues, fines and assess- ments from the Union, that restrictive work rules and classifications might mean unemployment to the men, of possible lengthy -negotiations at which time there would be no raise ... and his Craw's refusal to talk with me. F. The Events on September 6 Following the strike vote meeting on September 4, Steward again tried to contact Mike Craw by telephone, and, after a number of unsuccessful attempts, he finally reached Craw on September 6 and asked to meet with him to correct some of Craw's "misconceptions" regarding the Union's work classifications, its work rules, fines, assess- ments and Steward's alleged commissions.13 Craw refused to meet with Steward, and `he told Steward that he would have to talk to his attorney. According to Craw, Steward then said, "We don't have to hit you over the head, do we, Mike?" That same day, Craw learned that his employees planned to strike on Monday, September 9, and he assembled them just before the end of the workday. Craw testified: We told them that we heard that there was going to be a strike on Monday, that they had a perfect right to strike, that they had a perfect right to lapse their health insurance; but we had a perfect right to operate our business and we had a perfect right to replace any man who didn't report to work on Monday, that our doors 12 The foregoing are quotes from employee Ivory's credited testimony. 13 In his September 3 speech, Craw had told his employees that "the organizers get credit for the dollarsyou pay for union membership dues and union assessments and union fines," and that the reason "why these high paid union organizers have been courting you ... is very simple - their salaries depend on the union dues dollars they collect from their members." Resp. Exh.1, p. 2. 14 The five who struck and picketed on September 9 were Vance, McDonough, Davis, Ivory, and Hebler. Union Representative Steward also picketed, but only on the first day of the strike. - 15 See G. C. Exh. 13. 16 Craw denied that he had any knowledge that Moran took a picture of Farber, but I regard his denial as unworthy ofbehefandIplaceno credence therein for the following reasons : (a) Unless he did it for Respondent, there was no reason for Moran to take a photograph of Farber, the only picket whose picture had not previously been taken by Mike Craw . (b) According to Farber, a witness for Respondent, his picture was taken with a camera which Respondent used in its shop for taking pictures of "things that they made." (c) At the time Moran took Farber's picture, he made a comment to Farber 605 will be open to you, your jobs will be here, but you still have a perfect right to strike. G. The Strike and Events - Which Occurred While It Was in Progress On Monday, September 9, five of Respondent's nine production employees struck and commencedpicketing the Company's office and shop with picket signs which stated "CRAW & SON ON STRIKE." 14 -A sixth production employee, Paul Eugene Farber, joined the strike about a week after it started and participated in the picketing for a period of 2 weeks before he abandoned it and returned to work. The strike was terminated by. the Union by a letter which was hand delivered to Mike Craw on October 3 at 1:30 p.m.15 1. The photographing of the pickets On the-first day of the strike, shortly after the picketing commenced, Mike Craw took a number of photographs of his employees while they were peacefully picketing Respon- dent's shop and office. One of the striking employees, Michael McDonough, turned his back and walked away from the camera when his picture was taken, but Craw followed him, snapped his picture again, and said, "That's all right, we can identify you anyway." When Farber joined the strike and picketed the Respondent's office I week later, his picture was taken by Jay Moran, the brother-in-law of the Craws.16 2. The threat to assault Steward On the second or third day of the strike, while Vance and Hebler were picketing the Respondent's office, Mike Craw approached and told them that they were "doing Dick Steward's dirty work," that "he didn't like the way that Dick Steward had come in and broken up the family," and that he didn't want to be quoted but if Steward was there and he had a club, "he would use the club on Dick Steward." 17 3. The Union's petition for certification On September 11, 2 days after the strike began, the Union filed a petition in Case 6-RC-6950 for certification as the about his participation in the picketing . (d) According to Farber's uncontro- verted testimony, which I credit, about one-half hour later, Mike Craw came out of the office and apologized for Moran s comment and said in substance, "I'm sorry, Mr. Moran shouldn't have said what he said ." All of the foregoing, including Craw's knowledge of Moran's comment to Farber, persuade me, contrary to Craw's denial, that the photograph of Farber was taken with Craw's full knowledge, and that Moran did so as an agent of Respondent 17 I base the finding above on the credited testimony of Vance and Hebler. Craw admitted telling them that they were "doing Steward's dirty work for him while he's basking in the sun," but he denied saying that if he had a club and Steward was there, he would use it on him I do not credit Craw's denial. He admitted that he might have told the two employees that "when somebody holds a club over our head, we fight.' He also conceded that he did not believe that "any of the [his ] men would deliberately he or fabricate a story." In the light of the undenied testimony of Vance and Hebler that Craw said he did not want to be quoted, and my agreement with Craw's assessment of the credibility of these employees, I regard their testimony as more reliable than Craw's denial. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining representative of the Respondent's employees. 4. The hiring of so-called replacements and the termination of strikers On September 10, Respondent hired D. Earle Summers, an over-65-year-old retired sheet metal worker. On Septem- ber 12, Respondent hired Walter O'Donnell, another over- 65-year-old retired-machinist. The next so-called perma- nent replacement hired by Respondent was Walter Von Gehr, a 60-year-old retiree. He was hired on September 23 and started to work for Respondent on September 24. All three of these hires were retirees from employment by the Pennsylvania Railroad. The final so-called replacement hired by Respondent was Jim Nail who started to work on September 25. The record does not disclose any informa- tion regarding Nail's age, background, or the nature of the work he was hired to perform by Respondent. On September 13, Respondent sent identical letters signed by Mike Craw to striking employees Michael McDonough and George Ivory which stated: This will inform you we have hired a permanent replacement for your position at Craw & Son, effective September 13, 1974. We have notified your Health and Accident Insurance Carrier of your termination. Forms to convert the policy to individual coverage, at your option will be forthcoming. Questions you may have in this regard should be directed to: ABC INSURANCE TRUST FUND P. o. Box 8733 BALTIMORE, MD. 21240 On September 20, Respondent sent an identical letter to Frank Hebler advising him that his employment had been terminated as of that date.18 On September 30, Respondent sent the same letter to John Vance notifying him of his termination on that date. H. The Failure and Refusal of Respondent To Reinstate Four of the Strikers On October 3 at 1:30 p.m., the Union terminated its strike against Respondent by a letter which was hand delivered by Steward to Mike Craw. On the following morning, Vance, McDonough, Davis, Ivory, and Hebler, who had been out on strike since its inception on Septem- ber 9, reported to the Respondent's office and told Mike Craw that they were ready to go back to work. Only Davis was reinstated. The other four were told by Craw that they had been permanently replaced, that they would have to fill out applications for employment, and that they would be recalled if and when they were needed. None of these employees had previously been required, to fill out an application for employment when he was first hired by the Respondent. Davis was not required to fill out an applica- tion when he was reinstated. The four subsequently received application forms from the-Respondent by mail, filled them out, and returned them to the Company.19 Although two of the so-called permanent replacements have not worked for Respondent since November 1, 1974, and another had a heart attack on December 31, none of the four strikers has been offered reinstatement. I. Concluding findings 1. The threats of layoffs if the Union became the employees bargaining representative As found above, in Craw's speech and -talk to his employees on September 3, he told them,' inter alia, that there had never been a layoff in Respondent's shop, -and that he had given them "steady work - week in and week out, 52 weeks every year, regardless of business conditions," but that if the Union came in, "there would be a lot more layoffs" because the "small customers would not be able to afford the union rate for jobs." The standard for predictions which an employer may or may not make in resisting the unionization of his employees was stated by the Supreme Court in N.LRB. v. Gissel Packing Co., Inc., as follows: 20 ... An employer is free to communicate to his employees any of his. general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit" He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control .... At the time Craw made his statement regarding layoffs to his employees, he admittedly had not seen any of the Union's contracts. Even assuming that Craw then knew the wage rates which the Union would request for his employ- ees, he knew, however, that he was under no compulsion to agree to pay those rates, and (as he told'his employees) that he could bargain for years until he was offered a contract with wage rates which suited the nature of his business. It therefore is quite clear that Craw's statement that, if the Union came in, there would be layoffs due to loss of business was not a prediction based on "demonstrably probable consequences beyond his control," nor one "based on available facts, but a threat of retaliation ... and coercion, and as such without the protection of the First Amendment." 21 I therefore ' find that by the said statement Respondent interfered with, restrained, and coerced its employees in the exercise of their rights under 15 As noted above, Von Gehr was not lured by Respondent until September 23 Hebler was thus notified of his termination before his so- called permanent replacement was hired 19 G. C. Exh. 9, 11,14, and 16. 20 395 U.S. 575,618 ( 1969). 21 Id CRAW & SON 607 the Act; and that it thereby - engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.22 In his September 3 speech and-talk, Craw also told his employees that, if the Union came in, welding and painting work which they currently performed would have to be done by outside union welders and painters, and that, while they were waiting for that work to be done, they would be laid- off if there was no other work to done in the interim. This statement, like the one about layoffs which would result from the loss of small jobs, was not based on "objective fact," but rather on, a` misconception of the Union's work rules and classifications. Moreover, although Craw's statement was a prediction of a result which would occur only if the Respondent so agreed in negotiations with the Union, 'it was presented to the employees as an automatic consequence of unionization.23 It therefore was neither a prediction based on "demonstrably probable consequences beyond his control," nor one "based on available, facts," but rather a threat of retaliation' if the employees, contrary to ' Craw's wishes, designated the Union as their representative. As-such it was not protected by Section 8(c) of the Act. I therefore-find that, by this statement, Respondent` further restrained and coerced its employees in the exercise of rights guaranteed by the Act, and thus engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act 24 - 2. The threat to "drag out" negotiations and to withhold wage increases if the Union came in It has been Respondent's consistent practice for many years-to give all its employees a wage increase twice a year. In recent years, these raises were given on February 15 'and August 15, and, when given late, they were made retroac- tive to those dates. The- amount of the increase given to each employee varied in accordance with the formula by which Respondent computed them. All of the employees received an identical cost-of-living increase., To -this, Re- spondent added an amount based on thelabor costs which the employee had saved Respondent by performingjobs in the previous 6 months in less time than the Company had estimated. On August ` 15, Respondent's employees were not given their usual periodic increase in wages, but they were told by Mike ' Craw that when he -had the time to compute the raises, they would be made retroactive to August 15. -On September 3, Mike Craw told the employees in his speech and talk that if they designated the Union as their collective-bargaining representative, he, like the R. D. -Goss Co. which he cited as an example, could "drag out" the negotiations for as many years as possible, as long as he bargained in good faith, and that, "during this, long negotiation period, your wages would be frozen by law," Mink-Dayton, inc., 166 NLRB 604, 608-609, enfd. in relevant part 416 F.2d 327 (C.A. 6, 1969); Jimmy-Richard Co Inc., 210 NLRB 802,805 (1974). 23 The Great Atlantic & Pacific Tea Co., Inc., 194 NLRB 774,778 (1971), enfd. 80 LRRM 2902,68 LC ¶ 12, 770 (CA. 4, 1972). 24 Mink-Dayton, Inc., supra 25 As noted above, when the Umon's strike ended on October 3, Respondent reinstated only one of the five striking employees although all of them applied for reinstatement. On October 25, Respondent gave all its old employees (those who were employed before the strike began) a wage increase in their pay envelopes just before they went in to vote at the Board and "there would be no pay raises given out." On September 6, just before the Union's strike began, and again on September 15, while on the picket line, employee John Vance asked Mike Craw "when we would be getting our back pay," and he was told that "we,would not get it until.all this was-settled." - - The receipt by Respondent's employees of semi-annual wage increases clearly was a condition'of their employment by Respondent. Respondent was therefore under no legal restraint from giving its employees the wage increase it had promised them retroactive to August 15, and it did, infact, give them the increase on October 25, albeit-without retroactivity.25 Moreover, Respondent also had a -legal obligation to continue existing conditions of employment, including ' semi-annual wage increases to its employees.26 I therefore find that Craw's statement,to employee Vance that the employees' backpay would be withheld "until all this was settled," and his statement to all the employees that their wages would be frozen and that there would be no wage increases during the protracted negotiations with the Union, clearly interfered with, restrained, and coerced employees in the exercise of their rights under the Act, and Respondent thereby further violated Section 8(a)(1).27 I likewise regard Craw's statement to the employees that he "could drag out" the negotiations with the Union for "as many years as possible" as long as he bargained in good faith as a further trespass of his employees' rights under the Act. A threat to protract negotiations is inconsistent and incompatible with the obligation of an employer under the Act to-bargain in good faith with the representative of his employees. In the contextof_Craw's threat that "during this long negotiation period, your wages would be frozen," Craw clearly disclosed-to his employees that their designa- tion of the Union as their representative would be an exercise in futility, and his statement thus, obviously was intended to undermine and-dissipate.employee support of the Union. I therefore fmd that by this, threat to protract negotiations, Respondent further trenched on employee rights under the Act, and engaged in-unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The photographing of the pickets, It is undisputed that on September 9, the first day of the strike, Mike Craw took a number of still photographs of all of Respondent's employees while they were peacefully picketing-its shop and office, including two photographs of employee Michael McDtonough- who, tried- to .void being photographed. As found above, l week later when employ- ee Paul Farber joined the, strike, Respondent also photo- graphed him while he was peacefully picketing its office. It is well established that photographing employees while they are peacefully picketing is , coercive and violates election, but it failed to make the increases retroactive to August-] 5 as previously promised. Respondent offered no explanation, either for the failure to make the increases retroactive, or for the-tmnng of the payment of the increase on the same day as the Board election. The so-called replacements for the strikers were not included in this wage increase. 26 General Motors Acceptance Corporation, 196 NLRB 137 (1972), enfd. 476 F.2d 850, 854 (C.A. 1, 1973); Liberty Telephone & Communications, Inc, 204 NLRB 317 (1973); JFB Manufactunng, Inc, 208 NLRB 2 (1973). 27 JFB Manufacturing, Inc., supra- General Motors Acceptance Corpora- tion, supra 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act unless the employer has a legitimate and substantial reason for taking the pictures.28 Respondent contends that its photographing of the pickets was justified because, as Craw testified, "we weren't sure whether there was going to be violence or not." According to Craw, a second reason for taking the pictures was to make a record of the date that the picketing began so that, if the strike, and picketing continued for 30 days without the Union filing a petition for certification, Respondent could file an unfair labor practice charge against the Union for violation of Section 8(b)(7)(C) of the Act. I regard both of these reasons for photographing the employees while they were peacefully picketing as specious. According to Craw, his uncertainty regarding possible violence was based on a statement which Union Represen- tative Steward made to him during their September 6 telephone conversation . As previously noted, Craw testified that when he refused Steward's request for a meeting which Steward sought to'correct Craw's misconceptions about the Union and its work rules, Steward said, "We don't have to hit you over the-head, do we, Mike?" I do not believe that Steward's statement was a threat of physical violence or that Craw so understood it. I note in this regard that in the first conversation between Steward and Craw on August 21, when Steward told Craw that he could put a picket line around Respondent's place the following day, Craw replied that "when somebody holds a club over our head, we fight." Craw conceded that he had not been threatened by "a physical club," but that he so regarded the` threat of picketing. Craw also admitted that his one and only meeting with Steward had ended on friendly terms. In this context, I am persuaded that Steward's statement, on September 6, like Craw's similar reference to one on August 21, was to the metaphorical club of picketing, and that Craw so understood it. Moreover, since all the pickets excepting only Steward were employees of Respondent and were personally known by Craw, I fail to see how taking their pictures while they were peacefully picketing could serve any useful purpose if violence later occurred. In any event, even assuming that Craw feared violence (and I do not believe that he did), since none in fact occurred, the photographing of the pickets was not justified.29 I likewise place no credence in the second reason offered by Craw for photographing the pickets, to record the date that picketing commenced. Obviously a picture of the pickets was not required to record the date when picketing started. Taking the pictures of all of them certainly was not necessary for that purpose. Moreover, although the Union filed its petition for certification on September 11, Respon- dent subsequently took a photograph of Paul Farber when he later joined the strike and began to picket. This picture clearly could not have been taken for the purpose of recording the date when the Union began to picket, nor for documenting evidence of unlawful activity when none had occurred nor was occurring. 28 Flambeau Plastics Corporation, 167 NLRB 735 743 (1967), enfd. 401 F.2d 128 (C.A. 7,1968). 29 Farah Manufacturing Company, Inc., 204 NLRB 173, 176 (1973). Russell Sportswear Corporation, 197 NLRB 1116, 1117-18 (1972); Sackett's Welding, 207 NLRB 1030 (1974). 31 Walter Kidde, Inc. (Globe Security Systems), 185 NLRB 1011, 1013 (1970). As evidenced by McDonough's reluctance to be photo- graphed, picture taking creates a fear in employees that the record of their concerted activities might be used for some future reprisal against them. Absent the occurrence of actual violence or coercive conduct on the picket line, the taking of pictures of the pickets by Respondent was unwarranted.m I therefore conclude that by photographing the employees while they were engaged in peaceful picket- ing of the Respondent's shop and office, Respondent further restrained and coerced its employees in the exercise of their rights under the Act, and that it thereby engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The threat to club Union Representative Steward As found above, on the second or third day of the strike, Mike Craw told employees Vance and Hebler while they were picketing that he did not want to be quoted, but if Steward was there and he had a club, "he would use the club on Dick Steward." Craw's threat ofhis desire to inflict physical harm on the union 'representative clearly is coercive of employee rights under the Act and. violated Section 8(a)(1).31 5. The nature of the Union's strike It is well settled that a strike which is prompted in part by unfair labor practices is an unfair labor practice strike even though some of the other reasons for striking are economic in nature.32 In the light of this well-established principle, it is quite evident that the Union's' strike which began on September 9 was motivated in part by the unfair labor practices of Respondent which I have found above, and that it therefore was an unfair practice strike. I base this conclusion on the following considerations: The decision to strike on September 9 was made at a union meeting which was held on September 4, the day after Craw's antiunion speech and talk to the employees. The meeting was devoted principally to a discussion of what Craw had told the employees the previous day, including his threats that, if the Union came in, he would "drag out" negotiations with the Union for as long as possible until he obtained a contract which suited him; that during these protracted negotiations, which could last for as long as 2 years, the employees' wages would be "frozen" and 'there would be no periodic wage increases as thereto- fore; and his threats that the Union's advent, contrary to Respondent's prior practice of providing full-time employ- ment whether business was good or bad, would cause layoffs because of the alleged loss of jobs from small customers, and because of the alleged necessity for hiring union welders and painters to perform work which the employees were then doing themselves. According to the uncontroverted and credited testimony of the employees, the decision to strike was prompted by these statements and 32 General Drivers and Helpers, Local 662, Teamsters [Rice Lake Creamery Co.] Y. N.LR.B., 302 F.2d 908, 911 (C.A.D.C., 1962); N.LR.B. v. Stackpole Carbon Co., 105 F.2d 167, 175-176 (C.A. 3), cert. demed 308 U.S. 605; Lifetime Door Company, 179 NLRB 518,523 (1969). CRAW & SON 609 threats in Craw's speech, as well as by the refusal of Respondent to recognize the Union as their collective- bargaining representative. Accordingly, inasmuch as the strike was motivated in part by Craw's threats which, as found above, were unfair labor practices, I find that the Union's strike which commenced on September 9 was an unfair labor practice strike, and that the employees who participated in the strike were unfair labor practice strikers. 6. The termination of the strikers' employment The law is well established that unfair labor practice strikers are entitled to reinstatement on their unconditional application even if this necessitates the discharge of replacements who were hired to fill their positions.33 As previously noted, Respondent notified four of the striking employees during the strike that their positions had been filled by permanent replacements and that their employ- ment by Respondent had been terminated. Inasmuch as an employer may not even threaten to permanently replace unfair labor practice strikers,34 its letters to the four strikers that they had been permanently replaced and terminated further violated Section 8(a)(1) of the Act. On October 3, the Union made an unconditional applica- tion for the reinstatement of the striking employees in its notice to Respondent that it was terminating the strike. On October 4, each of the five striking employees made his own unconditional application for reinstatement. Respondent reinstated only one of the strikers, William Victor Davis. The other four were told that Respondent had no need for their services because their positions were filled by perma- nent replacements, and that they would have to fill out applications for employment. By failing and refusing to reinstate the four unfair labor practice strikers upon their unconditional application for reinstatement, Respondent engaged in further unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act 35 Moreover, even if it is assumed that the Union's strike was an economic one, I would still regard the failure of Respondent to reinstate any of the four striking employees when the strike ended as unlawful. I base this conclusion on the following considerations: The burden of proving that economic strikers have been permanently replaced at the time they applied for reinstate- ment is on the employer.36 None of the so-called permanent replacements was called by Respondent to testify about what he was told when he was hired regarding the tenure of his employment, and Respondent offered no other testimo- ny in this regard. Although Respondent paid its prestrike employees in cash, the replacements were paid by check.37 Three of the replacements were of advanced age and were retirees from other jobs. Two of the so-called permanent replacements worked for Respondent less than 2 months when they were requested to take layoffs. These two have not worked for Respondent since November 1, 1974, 1 week after they cast challenged ballots at the Board election 33 See, e.g, KPRS Broadcasting Corporation, 181 NLRB 535, 536, fn. 4 (1970). 34 Tommy's Spanish Foods, Inc., 187 NLRB 235, (1970) enfd. in relevant part 463 F.2d 116 (C.A. 9,1972). 35 KPRS Broadcasting Corporation, supra. 36 Trinity Valley Iron and Steel Company, 158 NLRB 890, 896 (1966), enfd. in relevant part 410 F.2d 1161,1170 -71 (C.A. 5, 1969). on October 25. One of these two worked for the most part only 2 or 3 days a week during his less than 2-month tenure with the Respondent. A third replacement worked for Respondent for about 3 months when he had a heart attack, and with the exception of only "a few days," he has not worked since December 31, 1974. Since January 1, 1975, Respondent has operated with only seven employees, three less than its normal complement, and it has not recalled any of the striking employees notwithstanding that its monthly sales since that date frequently exceeded those before the strike when it regularly gave its employees "steady work - week in and week out, 52 weeks every year, regardless of business conditions." 38 I conclude from all the foregoing that Respondent has failed to sustain its burden of proving that the replacements it hired during the strike were permanent replacements. I therefore conclude that even assuming, arguendo that the Union's strike was an economic one, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate all of the striking employees when they applied uncondi- tionally for reinstatement on October 4, 1974. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having further found that Respondent on October 4, 1974, unlawfully denied reinstatement to their former jobs to employees John D. Vance, Frank E. Hebler, Michael P. McDonough, and George R. Ivory on their unconditional application, I will recommend that Respondent be ordered to offer them immediate reinstatement to ' their former positions, or, if they no longer exist, to 'substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by the payment to each of them of a sum of money equal to the amount he normally would have earned from the date of Respondent's denial of reinstatement on October 4, 1974, to the date of the offer of reinstatement, less his net earnings during the said period, 37 According to Craw, this was done "to mdicate" permanent employ- ment." 38 The quotes above are from Craw's September 3 speech to the employees. Resp. Exh. 1, p. 15. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with backpay computed on a quarterly basis in the manner established by the Board.39 I will also recommend that Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social securi- ty payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this recommended remedy. There remains for consideration the contention of the General Counsel and the Charging Party that an order requiring Respondent to recognize and bargain with the Union is necessary to remedy Respondent's unfair labor practices. I find merit in this contention and I will recommend the issuance of such an order for the following reasons: On August 21, when the Union demanded recognition from Respondent and offered to prove its majority status, it clearly represented a majority of seven of Respondent's 10 employees. The Respondent reacted to the Union's demand by instituting a campaign to dissipate and undermine the Union's majority support, and to persuade its employees of the futility of representation by the Union. In furtherance of that objective, Respondent unlawfully threatened em- ployees with layoffs and the loss of customary wage increases if the Union became their representative, and it also threatened to protract the negotiations with the Union for years. In addition, when the employees struck in part in response to these unfair labor practices, Respondent further coerced its employees by photographing them while they were picketing peacefully, it hired so-called permanent replacements for- the quite apparent purpose of voting against the Union in' the forthcoming Board election,40 it notified four of the unfair labor practice strikers that their employment by Respondent had been terminated, and it refused to reinstate them when they terminated their strike and unconditionally applied for reinstatement, and it has not since then offered any of them reinstatement notwith- standing that almost a year has elapsed since the strike ended and Respondent has been operating with three fewer employees than its normal complement. Respondent's unfair labor practices quite evidently has had its intended effect of undermining and dissipating the Union's former majority status, for it received only one vote at the Board election on October 25 41 - In the, light of Respondent's extensive and pervasive unfair labor practices which were calculated to destroy the Union's majority status and included the termination of four of the Union's five staunchest supporters, I am persuaded that the application of traditional remedies cannot eliminate their lingering coercive effects to permit the holding of a fair and reliable rerun election. In these circumstances, I regard the employees' signed authorization cards as a more reliable measure of their representational desires. I will therefore recommend the issuance of an order requiring the Respondent to recognize and bargain with the in 3 F. W. Woolworth Company, 90 NLRB 289 (1950); backpay shall clude the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 90 It laid off two of the so-called permanent replacements 1 week after the election. Union as the collective-bargaining representative of its employees.42 RECOMMENDATION IN CASE 6-RC-6950 I have found above that following the Union'-s demand for recognition, Respondent engaged in unfair labor practices both before and after the Union filed a petition for certification for the purpose of dissipating and under- mining the Union's majority status, and I have recommend- ed in the unfair labor practice proceeding that in the light of the said extensive and pervasive unfair labor practices of Respondent, a bargaining order should issue. In view of the said findings and recommendation, I further recommend that the election which was held on October 25, 1974, be set aside, and that Case 6-RC-6950 be remanded to the Board for dismissal or other appropriate action. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Leroy W. Craw, Jr., Vernon E. Craw, and Daniel G. Leonard, d/b/a Craw & Son, is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By denying unfair labor practice strikers John D. Vance, Frank E. Hebler, Michael P. McDonough, and George R. Ivory reinstatement on their unconditional application on and since,October 4, 1974, because of their union and concerted activities, Respondent has discrimi- nated and is, discriminating, against them to discourage membership in a labor organization in violation of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by threatening its employ- ees with layoffs, loss of periodic wage increases and protraction of the negotiations if they designate the above- named Union as their representative, by photographing its employees while they were engaged in peaceful picketing of its premises, by threatening to inflict physical harm on the Union's representative, and by notifying unfair labor practice strikers Vance, Hebler, McDonough, and Ivory that their positions had been filled by permanent replace- ments and that their, employment had been -terminated, Respondent interfered with, restrained, and coerced em- ployees in the exercise of their guaranteed right to engage in union and concerted activities for the purpose of collective bargaining or other mutual aid or protection, and it thereby violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 41 It is thus fairly obvious that two of the employees who signed union cards voted against the Union at the election. 42 NLRB. v. Gissel Packing Co., Inc., 396 U.S. 575, 613-614 (1969), Steel-Fab, Inc., 212 NLRB 363 (1974); Trading Port, Inc., 219 NLRB 298 (1975). CRAW & SON 611 All mechanics, mechanic helpers and plant clerical employees employed by the Respondent at its Altoona, Pennsylvania, facility, excluding all other employees and guards, professional employees and supervisors as defined in the Act. 7. On August 21, 1974, the above-named Union repre- sented a majority of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER43 The Respondent, Leroy W. Craw, Jr., Vernon E. Craw, and Daniel G. Leonard, d/b/a Craw & Son, Altoona, Pennsylvania, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with layoffs, loss of periodic wage increases, protraction of negotiations, or any other reprisals, to discourage support of, or adherence to, a labor organization. (b) Photographing employees while they are engaged in peaceful picketing, or any other concerted activity protect- ed by the Act. (c) Notifying employees who are engaged in a strike to protest unfair labor practices that their positions have been filled by permanent replacements and/or that their employ- ment has been terminated. (d) Discouraging membership in, or activities on behalf of, Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, or any other labor organization, by refusing to reinstate them because of -their union or strike activities, or in any other manner discriminating against -them in regard to their hire or tenure,of employ- ment or any other term or condition of employment in order to discourage union membership or other concerted activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self. organization, to form labor organizations, to join or assist Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, or any other labor organization, to bargain collectively- through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, 43 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules I 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. except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer John D. Vance, Frank E. Hebler, Michael P. McDonough, and George R. Ivory immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary - to analyze and determine the amounts of backpay due under the terms of this recommended Order. (c) Upon request, bargain collectively with Sheet Metal Workers' International Association, Local Union No. 19, AFL-CIO, as the exclusive collective bargaining represen- tative of the employees in the appropriate unit described below, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All mechanics, mechanic helpers and plant clerical employees employed by the Respondent at its Altoona, Pennsylvania, facility, excluding all other employees and guards, professional employees and supervisors as defined in the Act. (d) Post at its place of business located at Altoona, Pennsylvania, copies of the notice marked "Appendix." 44 Copies of the said notice, on forms provided by . the Regional -Director -for Region 6, after being duly signed by Respondent, shall be posted by it for 60 consecutive' days thereafter, in all conspicuous places, including all - places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 44 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." -