The Rogers Manufacturing Co.

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Rogers Manufacturing Company and Internation- al Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1610, UAW and Michael Preston. Cases 8-CA- 9569,8-CA-9924, and 8-CA-9582 March 17, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On December 21, 1976, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Rogers Manufacturing Company, Akron, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. i 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 of the 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. 2 In adopting the Administrative Law Judge's Decision, we note that he inadvertently neglected to include in the affirmative action portion of the Notice to Employees appropriate language providing that the Respondent will make Preston whole for any loss of earnings he may have suffered as a result of the discrimination against him . Accordingly, we have modified the Administrative Law Judge's notice to include such a provision. 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 all sides had the chance to give evidence it has been decided that we, The Rogers Manufacturing Company, have violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOT assist you in circulating a petition to repudiate or decertify International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1610, UAW, nor will we solicit you to sign it. WE WILL NOT lay off any employee for opposing such a petition or for supporting the above-named Union or any other labor organization. WE WILL NOT warn you that layoff is the penalty for opposing such a petition. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by the National Labor Rela- tions Act. WE WILL make Michael Preston whole for any loss of earnings he may have suffered by reason of the discrimination against him , with interest at the rate of 6 percent per annum. THE ROGERS MANUFACTURING COMPANY DECISION STATEMENT OF THE CASE JOHN F. CoRBLEY, Administrative Law Judge: A hearing was held in this case on August 31 and September 1, 1976, pursuant to: a charge (Case 8-CA-9569) which was filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1610, UAW (hereinafter referred to as the Charging Union or the Union), on October 29,1975, and served by registered mail on Respondent on October 31, 1975; an amended charge filed by the Charging Union on December 17, 1975, and served on Respondent by registered mail on or about the same date; a charge filed by Michael Preston on October 31, 1975 (in Case 8-CA-9582), and served on Respondent on or about November 4, 1975, by registered mail; a charge filed by the Charging Union on March 12,1976 (in Case 8- CA-9924), and served on Respondent by registered mail on March 17, 1976; an order consolidating cases, consolidated complaint, and notice of hearing issued on January 5, 1976, by the Regional Director for Region 8 of the National Labor Relations Board, which was duly served on Respon- dent; and an order consolidating cases, complaint, and 228 NLRB No. 104 ROGERS MFG. CO. notice -of consolidated hearing which was issued by the Regional Director for Region 8 on April 27, 1976, and was thereafter duly served on Respondent. The complaint as ultimately consolidated (and hereinafter referred to simply as the complaint) alleges that: Respondent assisted in the solicitation and circulation of an antiunion petition in an effort to have the Charging Union decertified thereby violating Section 8(a)(l) and (5) of the Act; Respondent laid off Michael Preston on or about October 29, 1975, because of his support for the Charging Union or failure to support the antiunion petition, thus violating Section 8(a)(l) and (3) of the Act; and Respondent violated Section 8(aXl) of the Act by the act of its supervisors including Charles Ross in informing Michael Preston that the latter had been laid off because of his support for the Charging Union and/or his failure to support the antiunion petition. In its answers to the complaint, which answers were also duly filed, Respondent has denied the commission of any unfair labor practices. For reasons which appear hereinafter, I find and con- clude that Respondent has violated the Act essentially as alleged in the complaint. At the hearing, the General Counsel, the Charging Union, and Respondent were represented by counsel. The parties were given full opportunity to examine and cross- examine witnesses, to introduce evidence, and to file briefs. The parties waived the right to make closing statements. Briefs have subsequently been received from the General Counsel and from Respondent and have been considered. Upon the entire record' in this case, including the briefs and from my observation of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Ohio, with its offices and principal place of business located in Akron, Ohio, where it is engaged in the manufacture of automobile parts and other products. Annually, in the course and conduct of its operations, Respondent receives, at its Akron, Ohio, plant, goods valued in excess of $50,000 directly from points located outside the State of Ohio. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. ' Certain errors in the transcript of the record in these proceedings are hereby noted and corrected. 2 The complaint so alleges but Respondent 's answer fails to deny this allegation . Any allegation of the complaint not specifically denied shall be deemed admitted as true and shall be so found by the Board, unless the 883 M. THE ALLEGED UNFAIR LABOR PRACTICES A. The Bargaining History 1. The appropriate unit The following employees at Respondent's Akron, Ohio, place of business constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's Akron, Ohio, facilities, including all engrav- ing and stamping division employees and progressive pulley division employees, but excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act .2 2. The Union's certification On or about January 24, 1969, a majority of the employees of Respondent in the above-described unit designated and selected the Charging Union in a Board- conducted secret ballot election as their representative for the purposes of collective bargaining with Respondent and on or about February 28, 1969, the Regional Director for Region 8 of the National Labor Relations Board certified the Union as the exclusive bargaining representative of the employees in said unit. 3. The contract Respondent and the Charging Union have engaged in collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment concerning the employees in the unit de- scribed above and were signatories to a collective-bargain- ing agreement, which was effective by its terms from January 10, 1973, until January 10, 1976. B. Respondent's Relevant Hierarchy At all times material herein the following named indivi- duals employed by Respondent were supervisors within the meaning of Section 2(11) of the Act:3 F. A. Iaconetti, executive vice president and chief executive officer; 4 James Joyce, personnel director; Dick Rothermel, assistant gener- al manager; Charles Ross, second shift superintendent; Don Newbauer, paint line foreman; John Dunbar, paint line foreman; John Landers, pressroom foreman; Harold Wilson, pressroom foreman; and John Grim, assembly foreman. I will also find later in this Decision and contrary to Respondent's contention that Patrick Greer was a supervi- sor within the meaning of Section 2(11) of the Act at all pertinent times herein. answer makes certain explanations of the failure to deny which was not done herein. See Sec. 102.20 of the Boards Rules and Regulations and Statements of Procedure, Serves 8, as amended. 3 The parties so stipulated. 4 Mr. laconetti subsequently became the president of Respondent. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Background As I have previously held, the Charging Union was certified in 1969 and a contract was entered into in 1973. This 4-year hiatus is explained by events described in the Board's decision in The Rogers Manufacturing Company, 197 NLRB 1264 (1972). The Board found in that decision that Respondent's employees went on strike on June 9, 1969, about 3-1/2 months after the Charging Union 's certification. Thereafter Respondent continued to operate using some strike replace- ments. In May and June 1970 the Union filed unfair labor practice charges against Respondent. On August 5, 1970, a settlement agreement of these charges was executed in which Respondent agreed to bargain upon request, agreed further that it would not create obstacles to bargaining by changing proposals as to which agreement had already been reached, and that it would not grant superseniority to strike replacements. Thereafter, in 1971 , this settlement agreement was set aside by the Regional Director based on new charges of postsettlement unfair labor practices by Respondent which were the subject of a fresh complaint at that time. On June 30, 1972, the Board issued its aforementioned decision in which it upheld that complaint . More particularly it found that Respondent had violated Section 8(aX5) and (1) of the Act when it suspended bargaining negotiations 5 which had been in progress for only 2 months after the execution of the settlement agreement and further violated these same sections of the Act by insisting on superseniority for strike replacements as a condition to reaching agreement on reinstatement of strikers in what the Board found was an unfair labor practice strike . The Board also held that Respondent had violated Section 8(aXl) and (3) of the Act, variously, by requiring strikers to return to work as new employees, by withholding action for more than a month on the application of strikers for reinstatement , by failing to make an offer of reinstatement to two strikers, and by making an improper offer of reinstatement to other claimants. Following the Board's decision, the 1973-76 contract was entered into. The so-called open period (60-90 days prior to the expiration of this contract) in which a new election petition could be filed 6 began on or about October 11, 1975.7 Under the union-security provision of Respondent's collective bargaining with the Charging Union this was also an open period within which an employee could withdraw from union membership. On or about October 10, Respondent gave its employees a letter with their paychecks in which it advised them of their right to withdraw from the Union pursuant to the terms of the collective-bargaining agreement and further advising them that this could be accomplished by notifica- tion to Respondent and the Union between October 11 and November 11. At or about that same time ("several weeks" prior to November 10) employee Geraldine Stevens spoke with laconetti and told him that she thought this would be a S After a decertification election petition had been filed. 6 Leonard Wholesale Meats, Inc., 136 NLRB 1000 (1962); General Cable Corporation, 139 NLRB 1123 (1962). 7 All dates appearing hereinafter occurred in 1975 unless otherwise noted. good time to circulate a decertification petition. Iaconetti agreed but warned Stevens that the situation was different from the time Stevens had previously circulated a decertifi- cation petition (apparently in the fall of 1970) because now there was a collective-bargaining agreement and that Stevens should discuss the matter with Joyce, the personnel director. Stevens subsequently spoke with Joyce before she began circulating her petition. Joyce told Stevens that, in order for such a petition to be timely, it had to be done between 60 and 90 days before the end of the contract. He also suggested to her that she obtain donations from her fellow employees to help support the effort. The circulation of Stevens' petition began on October 27. Stevens was helped in this effort by other employees. Also on October 27, Respondent directed a second letter to its employees, delivered with their paychecks, in which it advised them that the Union would soon want to start negotiations with Respondent. The letter further reminded the employees of their right to withdraw from the Union before November 11, and told them how this could be accomplished. The letter, which was signed by laconetti, added the statement that the Union did not pay employees benefits but that it merely promised what it would "try to force" Respondent to do. Wages and benefits, the letter concluded, were paid by Respondent regardless whether the employees had a union. Also on or about October 27, parts employee George Wright approached working Supervisor Patrick Greer with the decertification petition and asked Greer to sign it. Since Greer had already signed, Wright asked Greer if anyone else wanted to do so. Greer then accompanied Wright over to stockboy John Collins and Collins signed the petition in the presence of Greer. Wright then took the petition over to employees Joyce Conroy, Estelle Burkhart Simmons, and Lorraine Zurshmidt and told them that whoever "wanted out of the Union" should sign the petition but they refused. Greer thereupon took the petition, held it up for Conroy and said "Here." Conroy again refused to sign. Greer also proffered the petition to employee Simmons to sign but she likewise again refused.8 Respondent's assistance to the decertification effort is alleged to be violative of Section 8(a)(1) and (5) of the Act. I will take up this question along with the issue as to Greer's supervisory status in my "Concluding Findings." On October 28, Stevens took her petition into a plant lunchroom. Gathered there were a number of employees on their lunch break including employee Michael Preston. Stevens attempted to solicit signatures to her petition but instead she had a confrontation with Preston. Preston attempted to debate with Stevens the merits of the unionization of Respondent and the conversation specifi- cally included mention of the Charging Union. Preston in a loud voice which the other employees could easily hear told Stevens that "any union was better than no union at all." After the Stevens-Preston conversation none of the employ- ees present would sign Stevens' petition. Indeed they 8 new findings are based on the credible and essentially corroborative testimony of Conroy and Simmons in this regard as partially corroborated or not dented by Greer. None of the other participants in the incident testified. ROGERS MFG. CO. 885 laughed at her. With this Stevens marched out of the lunchroom .9 Stevens told her foreman, Grim, an admitted supervisor, about this incident the next day, October, 29, and Preston was laid off that same day. His layoff is alleged to be a violation of Section 8(a)(1) and (3) of the Act. Later alleged comments by Preston's supervisors that the layoff was occasioned by Preston's support for the Charging Union and/or his failure to support the antiunion petition are claimed to be violations of Section 8(a)(1). I will treat with both these matters in detail in my "Concluding Findings." On October 31, Preston filed his charge herein against Respondent which was served on Respondent on or about November 4. Preston was notified by Joyce on November 6 that he would be reinstated on November 10. By payroll change notice of November 7 he was given a raise in pay of 25 cents per hour. He resumed work on November 10. Also on November 10 Stevens filed a decertification election petition in Case 8-RD-692 with Region 8 of the National Labor Relations Board. It does not appear that any action has been taken on this petition .10 Subsequent to January 10, 1976,11 according to the briefs of both the General Counsel and Respondent, Respondent and the Union have engaged in bargaining for a new contract but there is no indication that one has been entered into. Concluding Findings 1. The layoff of Preston Preston was employed on September 9. He was laid off, as I have held, on October 29, the same day as Stevens had informed her foreman, Grim, of her aforedescribed con- frontation with Preston in the lunchroom on the previous day. On the evening of October 29 Shift Superintendent Ross called Preston into his office and told Preston that he was being laid off due to a production cutback. Preston stated that he did not understand since he had gotten a raise (after 30 days) and had been complimented on his work. Ross told Preston that Preston had done a good job 12 but Ross said that he believed that Preston was being laid off because of the lunchroom incident on the day before and that Preston should have kept his mouth shut.13 Preston then proceeded back to the restroom preparatory to leaving the plant where he ran into his foreman, Watson. Watson asked Preston what had happened and Preston said that he had been laid off. Watson said he had heard rumors 9 The findings as to this incident are based on a composite of the credible and essentially corroborative testimony of Stevens and Preston in this regard 10 It has presumably been dismissed in the light of the 8 (aX5) allegations of the complaint herein . See, e.g., Pullman Industries, 159 NLRB 580 (1966). 1 i The date of the expiration of the 1973-76 contract. 12 Ross so admitted. 13 These findings are based on the credible testimony of Preston in this regard. Preston, while rambling in his testimony, appeared to me to testify in an honest manner to the best of his ability . I discredit the contrary version of Ross with the exception of Ross' statement that Ross assured Preston that he had been doing a good fob. Ross I felt was an inhibited witness who did not testify as convincingly as Preston . I also noted that Ross looked down when denying that he told Preston that his layoff had to do with the Stevens' lunchroom affair. that Preston was going to be laid off because of the Stevens incident. Watson also told Preston that this was a shame because Preston was a good worker but that Preston should have kept his mouth shut-14 Preston also saw Landers, another pressroom foreman, in the men's room. In discussing Preston's layoff with Preston, Landers stated that this was not the first time "they" (Respondent) had attempted such things, that "they had done it before and that's the way it had been taken care of." Landers then suggested that Preston go to the National Labor Relations Board which, as noted, he did.15 Respondent defends that Preston was laid off by selec- tion of Rothermel after laconetti had directed Rothermel to reduce indirect help. Indirect help was defined by Iaconetti as anyone not working on equipment to produce a product. Preston was a setup man at the time of his layoff. I reject this defense. According to Iaconetti, the amount of indirect help is a constant problem with Respondent-so much so that he has a short meeting with management on the subject every day. He further testified that he seeks to limit indirect labor to an average of 22.1 percent of the total labor force. While this may well be an admirable management goal, it does not satisfactorily explain why Preston was laid off even in the absence of other evidence on this issue. For if the problem was constant there should have been layoffs to meet it on a regular basis prior to the layoff of Preston. Yet there had been none since the early part of 1975. Further, as of the time of hearing, the percentage of indirect labor had become 33-1/3 percent - more than 10 percent beyond laconetti's goal. Finally, if there had indeed been a need to lay off a setup man at the time Preston was let go, commonsense would dictate that the least efficient setup man would be separated first (provided such a decision would not violate any contract seniority requirements). Here, however, though Preston was admittedly a good worker, he was laid off ahead of Wilborn who was not only hired after Preston but who was actually terminated as unsatisfactory some 3 days following Preston's layoff.16 In these circumstances I am convinced that Respondent's claimed desire to reduce indirect labor at the time does not provide the true reason for Preston's layoff. I rather conclude that Preston was laid off because of his resistance to Stevens' antiunion petition just as he was told by Ross 17 and as suggested to him, in effect, by Foremen Watson18 and Landers. I further conclude that by laying him off for this reason where his resistance was based on his support for the Charging Union, Respondent violated Section 8(a)(1) and (3) of the Act. 14 Watson credibly so admitted. is These findings are based on the credible and undisputed testimony of Preston in this regard. is Nor am I persuaded by Respondent's contention that it kept on Wilborn to give him a chance to improve. For, if the matter ofindirect labor was so pressing at the time, Wilborn, having never proved himself, was the logical choice for separation before Preston who had proved himself. 17 See ChefNathan Sez Eat Here, Inc., 181 NLRB 159 (1970), enfd. 434 F.2d 126 (C.A. 3). 18 Watson testified that what he told Preston about Preston's layoff was based on a rumor he heard from some women in the shop. Ross, however, endorsed such rumor as gospel when he concluded his remarks to Preston on the subject with the admonition that Preston should have kept his mouth shut. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I likewise conclude that the statements of Watson and Landers and particularly those of Ross to Preston that he was being laid off for this reason violated Section 8(a)(1) of the Act because such statements could not help but chill any desire on the part of Preston to support the Charging Union at any time when Preston might be recalled (as he eventually was) after being laid off. 2. Greer's efforts to have employees sign the antiunion petition There is no question that Greer assisted parts employee Wright to obtain the signature of stockboy Collins on the petition. Nor is there any question that Greer insisted, unsuccessfully, that employees Conroy, Simmons, and Zurshmidt also sign the petition. Respondent defends in this regard that Greer was not a supervisor within the meaning of Section 2(11) of the Act but was rather a rank-and-file employee engaged in a protected concerted activity. In support of this contention Respondent presented considerable testimony that Greer cannot be a supervisor because he does not hire, fire, promote, etc., employees who work with him. I disagree. It is well settled that Section 2(11) of the Act (the definition of "supervisor") is to be construed in the disjunctive just as it reads-and that the substantial authority to take any of the actions enumerated in behalf of an employer renders an individual a supervisor.19 I con- clude that Greer is a supervisor on the ground that he responsibly directed his crew of some nine employees working on the paint line in a manner requiring the exercise of independent judgment at the time the incident took place. Greer, a former setup man, was promoted to "working supervisor" effective September 22, 1975, and given a 75- cent increase in his hourly pay (to $5) almost $2 higher than any employees named in the record who were working under him. He was thereafter assigned to the paint line on different shifts replacing admitted supervisors, Foremen Newbauer and Dunbar. He kept this position until at least December 1975. While his authority over the employees under him was somewhat less than Newbauer's or Dunbar's in some respects it was the same in respect to his essential responsibility. Thus he was told when he was promoted to working supervisor in September 1975 that his job was to "make sure the paint lines kept running." In October he was given a gray jacket to wear, which, according to laconetti, was otherwise worn only by salaried supervisors or office personnel. In managing his crew of some nine employees Greer followed a production schedule. Since this changed daily he had to assign these employees their jobs on a daily basis. He was also responsible for the employees' work time. Thus when a paint line broke down he would assign them to work on another line in his department20 or contact Ross or Rothermel to obtain other work for them or send them all 19 Elliott- Williams Co , Inc., 143 NLRB 811 (I%3), enfd. as modified 345 F.2d 460 (C.A 7,1%5); Ohio Power Company v. N. L RB, 176 F.2d 385, 387 (C.A.6,1949). 20 Rothermel and Ross so admitted. 21 In view of all my findings, but particularly this testimony, I attach no weight to Greer's later inconsistent testimony that he was not given the authority to exercise Independent judgment. on break. He was also told that if he had any problems he was to contact these same two officials. However, the determination of what was a problem was left largely to him since, as he testified, "he handled it all himself' and that no one gave him specific instructions what to do.21 He also asked employees to work overtime when this was necessary. In overseeing the normal activities of employees working on his crew Greer would check each half hour during the shift to see if pulleys (Respondent's product) were painted correctly and packed properly by the crew. At the conclu- sion of each shift he checked and signed each employee's production record and timecards. He also gave employees their paychecks. When employee Conroy began work in September she was told that Greer was her foreman. Simmons was told the same thing in October. Both received their instructions from Greer when he was working supervisor on the paint line during their shift. Greer also trained admitted Supervi- sor Dunbar. Based on all of the foregoing I conclude that Greer was a supervisor within the meaning of Section 2(11) of the Act at all pertinent times herein.22 Respondent argues that the General Counsel in enforcing the complaint is seeking to create an avalanche out of "2 snowflakes"-Greer's participation in the circulation of the petition and Preston's layoff. I disagree. In my judgment, in the full context of what occurred, if there has been an avalanche, it was started by Respondent and it was started by it with boulders and not snowflakes. Thus, on October 27, the day the petition began circulating, Respondent sent a letter to its employees with their paychecks in which Respondent denigrated the Union and advised employees of their right to withdraw from it. On that same day Respondent's Supervisor Greer solicited four employees to sign it. The next day, October 28, Preston opposed the petition in the presence of other employees in a lunchroom, an act for which he was laid off the following day, October 29. The rumor in respect to Preston's layoff and the reason for it circulated in the plant even prior to the layoff itself, as Watson admitted. Ross had also heard of the incident on the day it occurred or on the next day. From the foregoing it is manifest that Respondent suggested that the employees reject the Union, it assisted the circulation of the decertification petition and it laid off an employee for opposing that petition in the presence of other employees in the lunchroom. All these events along with the rumor of Preston's impending layoff and the reason for it occurred during the first 3 days that the petition was circulated. Some 85 percent of the 133 employees who signed the petition affixed their signatures during those same 3 days. At the time they signed the petition Respondent's message to them was loud and zx Custom Bronze & Aluminum Corporation, 197 NLRB 397 (1972); Birnungham Fabricating Company, 140 NLRB 640 (1963); Mini Steel Fabricators, Inc., 197 NLRB 303 (1972); The Bama Company, 145 NLRB 1141, 1142-43 ( 1964), enfd. 353 F.2d 320 (C.A. 5,1965). ROGERS MFG. CO. clear-that is, that Respondent wanted them to sign it and that they could be laid off for opposing it 23 In view of the above and the history of Respondent's earlier unfair labor practices,24 I conclude that it assisted the circulation of the decertification petition, that this had the foreseeable 'elect of obstructing the bargaining process, and that Respondent thereby violated Section 8(a)(1) and (5) of the Act.25 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, 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 The recommended Order will contain the conventional provisions for cases involving unlawful discrimination in violation of Section 8(a)(1) and (3) of the Act, unlawful assistance of an effort to decertify the Union in violation of Section 8(axl) and (5) of the Act, and unlawful restraint and coercion in violation of Section 8(a)(1) of the Act. This will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respondent will be required to take to remedy its unlawful layoff of Preston. Thus, Respondent will be required to make Preston whole for any loss of earnings he may have suffered as the result of the discrimination against him by payment to him a sum of money equal to that he would have earned from the date of his layoff until the date of his recall less net earnings, if any, during such period to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest thereon as required by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Inasmuch as Preston was recalled, it will not, of course, be recommended that he now be offered recall by Respondent. It will, however, be further recommended, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941)), that Respondent be ordered to 23 A message well reinforced by the comments of Respondent's Supervi- sors Ross, Landers, and Watson to Preston on the day of Preston 's layoff: 24 See, e.g., Paramount Cap Manufacturing Co., 119 NLRB 785, 787 (1957), enfd. 260 F.2d 109 (C.A. 8, 1968). 25 See El So! Mexican Foods, 200 NLRB 804,809 (1972), and cases cited therein. In making my 8(aX5) finding, I conclude that the Union was, at all times pertinent hereto, the exclusive majority representative of the employees in the collective-bargaining unit. These events occurred while the collective- bargaining agreement was in effect and consequently while a conclusive presumption of majority status existed in favor of the Union. Dimarc Broadcasting Corp., 204 NLRB 378 (1973). While a petition could be filed raising an issue as to such status during the open period of the contract (on or about October I I to November 11) to be resolved by an election after such contract expired, Respondent's substantial assistance in the circulation of the 887 cease and desist from infringing in any other manner on the rights guaranteed its employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1610, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Akron, Ohio, facilities including all engraving and stamping division employees and progressive pulley division employees, but excluding all office clerical employ- ees and all professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the above-named labor organization has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By assisting the circulation of a petition leading to the decertification of the above-named Union in soliciting employees to sign said petition and laying an employee off for opposing said petition Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. By laying off Michael Preston for opposing said petition and supporting the above-named Union, Respon- dent has violated Section 8(a)(l) and (3) of the Act. 7. By advising Michael Preston that he was being laid off for opposing said petition Respondent has violated Section 8(a)(l) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: petition herein rendered the petition's claimed employee support nugatory and provided no basis for Respondent to question that majority status at that time. See Worthington Corporation, 119 NLRB 306 (1957); cf. Daisy's Originals Inc. of Miami, 187 NLRB 251, 255-256 (1970), enfd. as modified 468 F.2d 493, 502 (C.A. 5, 1972); Hoyt Motor Co., Inc., 136 NLRB 1042 (1962). Even if the presumption of the Union 's majority were rebuttable during such open period there is no basis in this record to question that status except for the fact of the unlawfully assisted petition and the unsupported claims in Respondent's letters to its employees on October 10 and October 27 that some unspecified number of employees had said they desired to withdraw from the Union. Nor can Respondent be absolved from its support of the petition by its subsequent reprimand of Stevens for circulating it in part on company time. For this reprimand was not given until November 7-some 3 days after the last signatures were solicited. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 26 Respondent, The Rogers Manufacturing Company, Ak- ron, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting employees to repudiate or decertify the Union as their exclusive bargaining representative in order to avoid its obligation to recognize and bargain with the Union. (b) Discouraging membership in, activities on behalf of, or sympathies toward International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, Local 1610, UAW, or any other labor organiza- tion, by discriminating in regard to hire or tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent's employees in order to discourage union membership, activities, or sympathies. (c) Advising employees they are being laid off for opposing a petition to decertify the above-named Union or for supporting that Union or in any other manner interfer- ing with, coercing, or restraining employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: 26 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 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. (a) Make whole Michael Preston for any loss of pay he may have suffered in the manner set forth in the section of the Administrative Law Judge's 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, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Akron, Ohio, copies of the attached notice marked "Appendix." 27 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's 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 . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 27 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."