Vincent Brass & Aluminum Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vincent Brass & Aluminum Co. and Miscellaneous Drivers, Helpers and Public Employees Union, Local 610, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 14-CA- 15403 September 29, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On June 8, 1982, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Vincent Brass & Aluminum Co., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 88 F 2d 162 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENIt OF tHE CASF. THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at St. Louis, Missouri, on March 23, 1982, pursuant to a charge filed on October 5, 1981,1 by Miscellaneous Drivers, Helpers and Public Employees Union, Local 610, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein referred to as the Union), and a complaint issued on December 10. The complaint alleges that Vincent Brass & Aluminum Co. (herein referred to as Respondent) violated Section 8(a)(1) of the National Labor Relations Act, as amended I All dates referred to are in 1981 unless otherwise stated 264 NLRB No. 70 (herein referred to as the Act), by threatening employees that second-shift employees would be laid off because employees had been exercising their-contractual right to bid on jobs, by threatening employees with plant closure because Respondent's employees had chosen representa- tion by the Union or because employees were engaging in union activities, by threatening an employee there would be reprisals for employees filing grievances, dis- paraging employees who exercised the rights granted to them by the collective-bargaining agreement to bid on other jobs and suggested it would be futile for employees to place job bids under the collective-bargaining agree- ment, and by making statements to employees about not intending to abide by the terms of the collective-bargain- ing agreement; violated Section 8(a)(1) and (3) of the Act by discriminatorily laying off employees Patrick Tosie, Douglas Alderson, Donald Winters, Dale Tubb, Michael Mathon, Michael Menke, Robert Baker, Edward Rade- macher, Niels Christensen, Tim Lurtz, Curtis Denton, and Terry Drysse because of their union or protected concerted activities 2 on or about September 25 and thereafter by failing and refusing to recall Rademacher, Christensen, and Lurtz until October 6, and Mathon and Menke until October 22, and by failing and refusing to recall the remaining employees; and violated Section 8(a)(1) and (5) of the Act by effectuating the termination of the job-bidding procedure in the collective-bargaining agreement without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative of Respond- ent's employees with respect to the job-bidding proce- dure and the effects of terminating it. Respondent in its answer dated December 18 denies having violated the Act as alleged. The issues involved are whether Respondent violated Section 8(a)(1), (3), and (5) of the Act as alleged by making unlawful statements or threats to employees; by discriminatorily laying off and refusing to recall the 12 employees because of their union or protected concerted activities; and by refusing to bargain with the Union by unilaterally terminating the job-bidding procedure con- tained in the collective-bargaining agreement. Upon the entire record in this case and from my obser- vations of the witnesses and after due consideration of the briefs filed by the General Counsel and Respondent, I hereby make the following: 3 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDI-NT Respondent, a corporation authorized to do business in Missouri with an office and facility located at 2150 South 59th Street (herein referred to as the 59th Street facility), St. Louis, Missouri, and a facility located at 2121 Janu- ary Street (herein referred to as the January facility) and 2 These protected concerted activities as described by the General Counsel included the use of the job-bidding procedure in the collective- bargaining agreement and the filing of grievances by employees. I Unless otherwise indicated the findings are based on the pleadings, admissions, stipulations, and undisputed evidence contained in the record which I credit. 334 VINCENT BRASS & ALUMINUM CO. another facility located at 165 Cherokee Street (herein referred to as the Cherokee facility) in St. Louis, Missou- ri, is engaged in the business of warehousing, nonretail sale, and distribution of metal products. During the 12- month period ending September 30, a representative period, Respondent in the course of its operations sold and distributed at its three St. Louis, Missouri, facilities products, valued in excess of $50,000, which were shipped from those facilities directly to points located outside the State of Missouri. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOI VED Miscellaneous Drivers, Helpers and Public Employees Union, Local 610, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR L ABOR PRACTICES A. Background and the Bargaining Unit Respondent is engaged in the warehousing, nonretail sale, and distribution of metal products and operates facilities at various locations in the United States includ- ing its St. Louis branch which is comprised of three facilities. These, the only ones involved in this proceed- ing, are located at 2150 South 59th Street, 2121 January Street, and 165 Cherokee Street, St. Louis, Missouri. Michael White, Jr., who is no longer employed by Re- spondent, was in charge of the St. Louis branch until January 4, 1982, and held the positions of vice president, regional manager, and general manager of St. Louis. Robert Rowan, Sr., the warehouse superintendent, oversees operations of the 59th Street facility. He is also over Foreman Paul Richardson at the Cherokee Street facility and Foreman Larry Mullins at the January Street facility who both report to him.4 Under Respondent's operations structure the St. Louis branch is set up financially and operated like an individu- al business under its general manager, who is provided with various financial reports and subject to certain con- trols from the main office. White was accountable for the operations of his branch to Ron Smith, who is Re- spondent's vice president and general manager with of- fices located at Minneapolis, Minnesota. About December 15, 1980, following a secret-ballot election the Union was certified by the Board as the col- lective-bargaining representative of Respondent's em- ployees in a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act, as follows: All drivers and warehouse employees, including machine operators, helpers, warehousemen, shipping and receiving clerks, employed by the Employer at its 2150 South 59th Street, 2121 January and 165 Cherokee, St. Louis, Missouri, facilities, EXCLUD- 4 Vice President White and Superintendent Rowan are supervisors under the Act. ING office clerical and professional employees, guards and supervisors as defined in the Act. The Union at all times material herein has been and is now the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. Respondent and the Union are parties to a collective- bargaining agreement effective from April I until mid- night December 31, 1983, covering the unit employees. B. Unnlawful Statements and Threats Several employees of Respondent testified concerning unlawful statements or threats made by Vice President White and Superintendent Rowan. On September 23, Superintendent Rowan was ob- served by Melvin Christisen, Niels Christensen, and union shop steward Michael Vineyard looking at job bids posted on the bulletin board outside his office. Christisen stated he heard Rowan, using profanity, say he was tired of the Union and they ought to close the doors and go back to Minneapolis. Christensen heard Rowan, using profanity, remark he was going to close the doors and move back to Minneapolis, that he was not going to work "in no union shop." Vineyard, who denied anyone else was present, said as he walked by the bulletin board he heard Rowan say he was tired of all the bidding and confusion it was making and he was just going to lay off the second shift and eliminate the prob- lem. These three employees acknowledged Rowan did not make these statements they overheard directly to them or to other employees. Superintendent Rowan. who had previously worked for Respondent in Minneapolis, denied making these statements attributed to him. However, I discredit his de- nials and credit the testimony of Christisen, Christensen, and Vrneyard and find that on September 23 Superin- tendent Rowan by making threats in their presence threatened Melvin Christisen and Niels Christensen with closing the plant because of the Union and threatened Michael Vineyard with laying off the second shift be- cause employees had been bidding on jobs pursuant to the collective-bargainirg agreement. Apart from my ob- servations of the witnesses in discrediting Rowan, his tes- timony was contradictory and conclusionary. On September 24, union shop steward Vineyard credi- bly testified that, while discussing two grievances per- taining to an employee being off work due to illness with Superintendent Rowan, Rowan informed him he was tired of all the grievances and nit-picking the guys in the warehouse were doing and he was going to start doing some himself; he said he was going to start writing them up for too much breaktime and taking too long on lunch and things like that. While Superintendent Rowan denied making such statements I discredit his denials for reasons previously given and I find that, on September 24, Superintendent Rowan threatened Vineyard that employees would be written up for taking too much time on breaks and lunch because employees had filed grievances. 335 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union shop steward Randall Potter testified that, about I p.m. on September 25 during a conversation with Superintendent Rowan at the Cherokee facility con- cerning why employees had not been awarded jobs they had bid on, Rowan, using profanity, said he was tired of people changing jobs. Upon mentioning to Rowan that employees had the right to bid on jobs, Rowan said he would lay off everyone and would lay off the whole second shift. After telling Rowan he expected to be awarded on Monday the job he had bid on, Rowan said he would but he accused the Potters" as being the reason the Union was there. Although Superintendent Rowan acknowledged dis- cussing job bids and layoff that day with Potter he denied making the statements attributed to him by Potter. Instead, he claimed he mentioned there was going to be a layoff that afternoon and that there would not be any job openings on the second shift because there would not be a second shift. I credit Potters rather than Rowan whom I have previously discredited. Having credited Potter, I find that on September 25, Su- perintendent Rowan threatened Randall Potter that em- ployees and the whole second shift would be laid off be- cause employees had bid on jobs pursuant to the collec- tive-bargaining agreement. Such threat is also consistent with other threats made by Rowan herein found. Niels Christensen testified on September 25 Superin- tendent Rowan informed him he was laid off because of lack of work. However, Rowan then said he hated to lay him off and did not want to do it but "that damned Tim Lurtz"7 did not want to train anyone on the second shift and "all those damned people" were bidding on different jobs and he just could not allow that. I credit Christen- sen rather than Rowan who denied making such state- ments and I find that, on September 25, Superintendent Rowan made statements to Niels Christensen disparaging employees because they had bid on jobs pursuant to the collective-bargaining agreement and indicated it would be futile for employees to bid on jobs. On October I union shop steward Vineyard testified he gave Superintendent Rowan a grievance prepared by Union Business Representative Jack Kuperg pertaining to job bidding whereupon Rowan told him Norme was "tired of all this stuff" and all the union problems and he was just going to close the doors. Although Superintend- ent Rowan denied making such statements I discredit him and I find that on October I Superintendent Rowan threatened Vineyard with plant closure because of the employees' union activities. On October 8, a meeting was held attended by Vice President White, Superintendent Rowan, employee Tim Lurtz,' ° and Vineyard to discuss work shift arrange- Randall Potter's brother formerly worked for Respondent. ^ Potter's admission that he intentionally misstated his age as 1 rather than 17 on his employment application form filed in June 1969 in order to obtain his job at Respondent has been considered in resolving this credi- bility conflict. 7 Lurtz was a warehouse employee. a Kuper is both business representative and president of the Union. * The person referred to was Vice President Norm Smith. 'o Lurtz did not testify. ments for Lurtz whereby he could continue with his schooling while working. Vineyard stated at this meeting that White mentioned some of the grievances and said they had had the Union the shortest time of anybody and had the most problems. White then said he was tired of all the cherry picketing and nit-picking that was going on and he had skilled people and he would put them where he wanted and when he wanted. Vice President White denied making any statement at this meeting about not abiding by the terms of the collec- tive-bargaining agreement. However, neither he nor Su- perintendent Rowan testified concerning what was said at this meeting. I credit Vineyard rather than White and find that on October 8 Vice President White indicated to Vineyard he would assign employees to jobs without abiding by the terms of the collective-bargaining agreement. Besides my observations of the witnesses in not crediting White his testimony on occasions was contradictory and ap- peared implausible. C. The Discriminatory Layoff The discriminatees Patrick Tosie, Douglas Alderson, Donald Winters, Dale Tubb, Michael Mathon, Michael Menke, Edward Rademacher, Niels Christensen, Tim Lurtz, Curtis Denton, and Terry Drysse were laid off work by Respondent on September 25 and discriminatee Robert Baker, a truckdriver, was laid off work on Sep- tember 23. Three nonunit employees including a billing clerk, an inside salesman, and a foreman were also laid off. Shortly thereafter all the discriminatees except Doug- las Alderson, Patrick Tosie, Dale Tubb, and Donald Winters were recalled to work. Niels Christensen, Terry Drysse, and Edward Rademacher returned to work on October 7, Curtis Denton on September 29, and Tim Lurtz on October 12. Robert Baker returned to work on October 14 but was laid off again from October 19 to October 29. Both Michael Mathon and Michael Menke returned to work on October 8; however, Mathon was again laid off from October 9 to October 22 while Menke was again laid off from October 13 to October 22. Before this layoff Respondent operated two shifts at each of the three facilities. Vice President White estimat- ed there were approximately 51 to 52 warehouse em- ployees at the time of the layoff while Superintendent Rowan gave the number as 41 employees excluding the foreman. Respondent's records reflect there were 56 warehouse employees at the end of August. Prior to the September layoff employees had also been laid off work at the St. Louis branch in July 1980, May, and August with all of those employees being recalled. The discriminatees were laid off according to reverse order of seniority as required by the collective-bargain- ing agreement. Seven of them worked at the 59th Street facility, while two each were from the January Street fa- cility and the Cherokee Street facility, and the remaining one was a truckdriver. All of them except three who worked on the first shift worked on the second shift. Their job classifications included truckdriver, order 336 VINCENT BRASS & ALUMINUM CO. filler, slitter operator helper, shear operator, and polisher operator. Vice President White testified it was his decision to lay off the employees. His reason was there was not enough work; he denied it was because of their union or protected concerted activities. According to White, on September 24 while in Springfield, Missouri, he made his decision to lay off the second shift based upon weekly sales report information " furnished him that day by Office Manager Michael Chappell 2 and estimates fur- nished him by Superintendent Rowan that there were 2 to 2-1/2 days available production work to be per- formed. Other factors he said he relied upon were a de- crease in the average orders per day from about 180 to about 120, which information he obtained from the order entry girl prior to his departure for Springfield, and also a drop in the backlog of orders from $5 million to $1.8 million. Both Office Manager Chappell and Superintendent Rowan corroborated White's testimony concerning their discussions with him. Rowan, who estimated the typical amount of available work to be performed averages about 4 days' work, testified that the estimate he fur- nished White on September 24 was based on his looking at orders for the 59th Street facility, his experience in de- termining how long it takes to process an order, and on information reported to him by the two foremen at the other facilities. Neither of these foremen testified. Under cross-examination, Rowan denied he ever recommended closing the second shift or discussing it with White prior to September 24. Graphs prepared by Office Manager Chappell cover- ing the St. Louis branch reflect that the total number of orders received each month based on information taken from the daily order entry summary report decreased in August from 3,029 to 2,489,' 3 but increased in Septem- ber from 2,489 to 2,739; and that the average daily bill- ing per month taken from the monthly profit-and-loss statement decreased in September from $93,292 to $73,921 but increased in October to $79,116. According to White, the sales volume at the St. Louis branch began to drop in April and continued to drop rapidly.14 Written objectives prepared by him in May for the budget period covering the third quarter of 1981 and first quarter 1982 listed that improvement was needed in controlling warehouse costs through such measures as more production and less people. White also stated that almost every other day beginning in January and during March, May, July, and September he also had discussions about his branch's financial status with Vice President Smith or Douglas Brooks, who is Re- spondent's vice president of finance. 5 He further stated I I This report reflects that as of September 22 orders totaling S490,200.37 had been received for that month while orders billed during the same period totaled $1,235,690 53. 12 Chappell is now inside sales manager for Respondent. II During late August eight employees laid off earlier that month were recalled and another employee laid off in August was recalled on Sep- tember 1. " No records, except for September, were proffered showing the sales volume. "5 Neither Smith nor Brooks testified. that, on September II11, Vice President Smith discussed with him the August figures and sales volume and in- structed him to study their manning situation including both warehouse and office and to bring it in line with company averages. George Dougherty, who is Respondent's director of corporate operations located in Minneapolis, Minnesota, testified that about August 15 to August 18 at the direc- tion of his superior, Vice President Smith, he performed an analysis concerning the operations of the St. Louis branch to determine whether the manning levels were too high for productivity and projected productivity. His conclusion, which he said he reported to Smith about the middle of August, was that the staffing level there was too high. Dougherty in reaching his conclusion said he relied upon various documents. The one he considered the most important was dated August 28 and showed the percentage of payroll to gross profit for all of Respond- ent's 14 branches including the St. Louis branch. The year-to-date figure for the St. Louis branch warehouse operations was 27.2 percent while the August figure was 20.1 percent. The average for all Respondent's ware- houses for the year to date was 15.9 percent and for August was 13.5 percent. According to Dougherty and as reflected by this document the St. Louis branch was higher than the other branches except for one which had a 21.2 percent for August. The document also contained annual percentages for 1971 through 1980 and shows St. Louis was second highest of all the branches in 1980. Another document relied upon contained the number of employees employed in all 14 facilities in August 1980 and July and at the end of August. The number of ware- house employees in the St. Louis branch at the end of August was 56. The other document dated August which Dougherty said he relied upon showed the aver- age number of orders written per workday foi various periods of time. It showed the St. Louis branch average for August was 144, with a year-to-date average of 1I2 and for the prior year 171. These averages were second highest to Minneapolis of all of Respondent's branches. An additional factor Dougherty said he considered was the manning ratio per 1,000 square feet of warehouse space. According to him the average manning ratio for Respondent was about .29 per 1,000 square feet while St. Louis which had the highest ratio of all the branches was between .4 and .5 in August and September. Dougherty also testified that, between about Septem- ber 17 through September 20, he attended a meeting with Vice President Smith and Vice President White in which he said Smith instructed White to decrease the level of his warehouse staff or cut expenses. Less than 2 weeks after the September layoff the second shift was reinstituted at the 59th Street facility. Several employees who were not laid off including Melvin Christisen and Union Steward Michael Vineyard at the 59th Street facility and Union Steward Randall Potter at the Cherokee facility testified without denial that the following week or the next week after the layoff they were asked by Superintendent Rowan to work overtime. Christisen denied noticing at the time of the layoff any decrease in work while Vineyard said he be- 337 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lieved at the time of the layoff they were behind; Christi- sen said it seemed he had enough to keep busy. Rowan acknowledged that shortly after the layoff business picked up at times on certain machines and he had to recall certain laid-off employees because of orders they had received which the first shift could not do. Respondent's employee attendance records reflect that employees worked overtime both before and after the layoff and that during the period between the layoff on September 25 up until October 31, during which time all but 4 of the discriminatees were recalled, approximately 23 different employees worked a total of approximately 116 hours' overtime work. The Union filed a grievance dated September 28 over the layoff of the employees, alleging the reason for the layoff was to discriminate against union members in the exercise of the bidding procedures under the collective- bargaining agreement. During a grievance meeting held that day attended by Business Representative Kuper, shop stewards Potter and Vineyard for the Union, and Vice President White and Superintendent Rowan for Re- spondent, the union representatives accused Rowan of making statements about closing the warehouse which he denied. White informed them the layoff was for econom- ic reasons and showed them the weekly sales report. This grievance was denied by White. D. Termination of the Job-Bidding Procedure Article VIII of the collective-bargaining agreement be- tween Respondent and the Union provides in pertinent part as follows: Permanent job openings on new jobs or vacant per- manent jobs will be posted by the Employer at the three locations for two (2) regular work days. The Employer will fill such openings with the senior employee who is qualified to perform the work in question properly, who signs the bid sheet to indi- cate that he desires said vacant or new job. If an employee may have the necessary qualifica- tions, he shall be given a reasonable trial period of up to thirty (30) days. If the Employer determines that the senior employee bidding for the job does not have the necessary qualifications, a representa- tive of the Employer shall meet with the employee and his steward before the job is awarded to an- other employee to review the reasons for its deter- mination. When an employee is assigned to a new position under the provision of this article and it develops within a reasonable length of time (not more than thirty (30) days) that the employee is not capable of handling the position, the employee shall be entitled to return to the employee's former position. These provisions, which are clear and unambiguous on their face, permit qualified employees to bid on perma- nent job openings or new or vacant permanent jobs which are required to be posted and to be awarded to the employee with the most seniority who bids on the job. 1 6 During the period August 6 through September 23, 7 different job openings in the unit were posted and bid on by approximately 23 employees at the 3 St. Louis branch facilities including 6 of the discriminatees; namely, Pat- rick Tosie, Dale Tubb, Edward Rademacher, Tim Lurtz, Terry Drysse, and Michael Menke. Four of these open- ings were for first-shift jobs and three for second-shift jobs; they included the positions of shear operator, order filler trainee, shipping and receiving clerk, polisher oper- ator trainee, leveller operator trainee, and leveller helper trainee. According to Superintendent Rowan, who is responsi- ble for administering the bidding procedure, three of those jobs posted were awarded although one was never actually filled because of the layoff; the remaining four jobs posted were never filled. One of those posted job openings dated September 14 for the position of shipping and receiving clerk was bid on by and was awarded to the most senior bidder, shop steward Randall Potter. His job at the time was a level line operator and this change in jobs involved bidding down from a skilled operator's job to a nonskilled job with a 10-cent-an-hour reduction in pay. During a meeting held in September Potter testified without contradiction that Vice President White said he did not appreciate the fact Potter was bidding down be- cause he thought they had a lot of time and money in- volved in training an operator. Superintendent Rowan, whose testimony was corrobo- rated by Vice President White, acknowledged permitting Potter to bid down to obtain the position. However, his explanation for allowing him to do so was they had as- signed Potter to the shipping and receiving clerk position which they needed filled when they had an extra ma- chine operator on the second shift whom they then moved to the first shift because business was slow. Robert Lindenbusch, who was a polisher operator, also bid on a posted job opening dated August 25 for an order filler trainee position, which involved down bid- ding. Union Business Respresentative Kuper stated, with- out denial, that at a meeting held on September 9 Lin- denbusch's bid was discussed with Vice President White, who requested time to study it, but agreed Lindenbusch's name on the bid sheet was probably appropriate and he should be awarded the job. Although Rowan stated he subsequently informed Lindenbusch he had been award- ed the job he bid on, he never actually gave ilim the job because he said he had too many people on layoff. Superintendent Rowan also acknowledged that in the summer of 1981 he allowed Mike Covault to bid down on a posted job because he had more seniority and wanted to move from the second shift to the first shift. During a grievance meeting concerning the September layoff held on September 28, attended by Vice President White, Superintendent Rowan, union stewards Potter and Vineyard, and Business Representative Kuper, "6 Evidence proffered by Respondent for purposes of seeking to estab- lish that these provisions themselves did not permit down bidding on jobs was rejected 338 VINCENT BRASS & ALUMINUM CO. Kuper stated Vice President White told them that em- ployees bidding to a lower paying job off a machine could not be tolerated by the Company and he was not going to permit it. Upon their mentioning to White the collective-bargaining agreement had no prohibition for an employee not to bid down, White said had he been in negotiations that would not have been allowed. Vice President White's version was that he said that down bidding was going to kill them, it was just going to tie up the Company, and they would not have trained people in the right positions to do business. I credit Kuper rather than White for reasons previous- ly given and find that on September 28 Vice President White informed Union Representative Kuper and union stewards Potter and Vineyard that employees would not be permitted by Respondent to down bid from operators jobs. Union steward Vineyard, who is a level line operator, also down bid between September 14 and 23 on posted job openings for a shipping and receiving clerk, leveller helper trainee, and order filler trainee. Both Vice President Smith and Superintendent Rowan testified they discussed Vineyard's bid about September 28, decided not to award him the position, and informed him of their decision. The reasons they said they gave him was because of his value to the Company, his experi- ence, the cost to the Company, and the fact that they could not afford to slow down production to train an- other man. 7 Union steward Vineyard testified that on September 30 he was called into Superintendent Rowan's office at which time Rowan told him Vice President White had just talked to Business Representative Kuper to inform him there would be no more down bidding. He ex- plained pursuant to Vineyard's inquiry that this meant that no operator could bid to a lower paying job. Upon asking Rowan what that meant concerning jobs of two employees with lower paying jobs who were trying to bid up, Rowan's response was there was just no bidding at all. Although Superintendent Rowan did not specifically deny having such a conversation he denied making state- ments to the effect it would be futile for employees to bid on jobs under the collective-bargaining agreement. I credit Vineyard rather than Rowan whom I have previ- ously discredited and find that on September 30 Superin- tenident Rowan informed Vineyard there would be no more down bidding or any bidding on jobs. Since these seven job openings were posted in Septem- ber no other job openings, with one exception, have been posted since that time. The only exception was an order filler opening posted a few weeks before the hearing held on March 23, 19S2, it was posted pursuant to an agree- mecnt between Respondent and the Union made in Sep- tember not to post that position for a year since it was being filled temporarily by an employee for a person absent because of illness. Business Representative Kuper denied Respondent ever notified the Union prior to September 30 that Re- spondent was terminating the bidding procedure. 17 Vineyard den-ed he had the necessary seniority to be awarded the jobs E. Analysis and Conclusions The General Counsel and the Charging Party contend that Respondent violated Section 8(a)(1), (3), and (5) of the Act as alleged by making unlawful statements and threats to employees; and by discriminatorily laying off and refusing to recall 12 employees because of their union or protected concerted activities; and that it re- fused to bargain with the Union by unilaterally terminat- ing the job-bidding procedure. Respondent denies having violated the Act and asserts the layoff was for economic reasons. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Section 8(a)(3) of the Act provides in pertinent part:"It shall be an unfair labor practice for an employer . . by discrimination in regard to hire or tenure of em- ployment or any term or condition of employment to en- courage or discourage membership in any labor organi- zation .... " Section 8(a)(5) of the Act prohibits an em- ployer from refusing to bargain collectively with the rep- resentative of its employees. The findings, supra, with respect to the unlawful state- ments and threats made establish that Superintendent Rowan on September 23 threatened Melvin Christisen and Niels Christensen with closing the plant because of the Union and threatened Michael Vineyard with laying off the second shift because employees had been bidding on jobs pursuant to the collective-bargaining agreement; on September 24 threatened Michael Vineyard that em- ployees would be written up for taking too much time on breaks and lunch because employees had filed griev- ances; on September 25 threatened Randall Potter that employees and the whole second shift would be laid off because employees had bid on jobs pursuant to the col- lective-bargaining agreement; on September 25 made statements to Nicls Christensen disparaging employees because they had bid on jobs pursuant to the collective- bargaining agreement and indicated it would be futile for employees to bid on jobs: and on October I threatened Michael Vineyard with plant closure because of the em- ployees' union activities; and on October 8 Vice Presi- dent White indicated to Vineyard he would assign em- ployees to jobs without abiding by the terms of the col- lective-bargaining agreement. The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of em- ployee rights under the Act." Electrical Fittings Corpora- tion. a subsidiary of I-T-E Imperial Corporation, 215 NLRB 1076 (1975). Since employees' rights to engage in union activities, to file grievances, and to assert their contractual rights are all protected under the Act, I find, applying the above test, that Respondent by Superintendent Rowan and Vice President White making those statements and threats enumerated above has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 339 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Insofar as the unlawful termination of the job-bidding procedure is concerned the evidence supra establishes that article VIII of the collective-bargaining agreement provides that job openings on new or vacant permanent jobs are required to be posted for bid and awarded to the most senior qualified employee who bids on that job. Not only does the provision clearly allow unrestricted bidding which would include down bidding on jobs, but Superintendent Rowan so applied it by allowing down bidding by several employees. His attempt at the hearing to explain away why he permitted it in those incidents initially if he did not believe it applied to down bidding is implausible since otherwise those assignments would have been contrary to his now professed interpretation of the collective-bargaining agreement. Notwithstanding such provision, on September 30 Superintendent Rowan, who administers the job-bidding procedure, without prior notice to or bargaining with the Union which rep- resents the unit employees, informed union steward Vineyard that there would no longer be any down bid- ding or any bidding on jobs. This announcement was preceded by earlier unlawful statements and threats made to employees, as herein found, by Superintendent Rowan about employees using the bidding procedure and about the futility of employees bidding on jobs and Vice Presi- dent White's unlawful statement that employees would be assigned to jobs without abiding by the collective-bar- gaining agreement-as well as his additional statement that employees would not be permitted by Respondent to bid down from operators jobs. Thereafter, except for one job opening posted about March 1982 pursuant to an earlier agreement made in September between the Union and Respondent about, posting that particular job, no job openings have been posted since September 30. Although it was not estab- lished whether there have been any job openings since that date, I am persuaded and find, based on those un- lawful statements and threats referred to and Superin- tendent Rowan's unretracted statement on September 30 about there not being any more bidding on jobs, that the job-bidding procedure under article VIII of the collec- tive-bargaining agreement was terminated effective Sep- tember 30 without prior notice to or bargaining with the Union. The law is well established that unilateral changes of "wages, hours, and terms and conditions of employment" by an employer obligated to bargain with the representa- tive of its employees in an appropriate unit violates Sec- tion 8(a)(5) of the Act. Master Slack and/or Master Trou- sers Corp. et al., 230 NLRB 1054 (1977), enfd. 618 F.2d 6 (6th Cir. 1980); Amsterdam Printing and Litho Corp., 223 NLRB 370 (1976); N.L.R.B. v. Benne Katz. et al., 369 U.S. 736 (1962). Accordingly, I find that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union by unilaterally and without bargaining with the Union terminating the job-bidding procedure under arti- cle VIII of the collective-bargaining agreement effective September 30. The final issue to be resolved is whether Respondent discriminatorily laid off and refused to reinstate the 12 discriminatees to their jobs. The evidence herein found shows that Respondent laid off the discriminatees Patrick Tosie, Douglas Alderson, Donald Winters, Dale Tubb, Michael Mathon, Michael Menke, Edward Rademacher, Niels Christensen, Tim Lurtz, Curtis Denton, and Terry Drysse on September 25 and Robert Baker, a truckdriver, on September 23. Patrick Tosie, Dale Tubb, Edward Rademacher, Tim Lurtz, Terry Drysse, and Michael Menke had all bid on jobs under the collective-bargaining agreement. All of those laid off except Douglas Alderson, Patrick Tosie, Dale Tubb, and Donald Winters, who were not recalled, have returned to work. Niels Christensen, Terry Drysse, and Edward Rademacher returned on October 7, Curtis Denton on September 29, Tim Lurtz on October 12, Robert Baker on October 14, and Michael Mathon and Michael Menke on October 8. However, several were again laid off including Robert Baker from October 19 to October 29, Michael Mathon from October 9 to October 22, and Michael Menke from October 13 to October 22. This layoff was conducted according to the reverse order of seniority as required by the collective-bargain- ing agreement. Prior to the September layoff, Respondent Superin- tendent Rowan on September 23 and 25 as herein found unlawfully threatened employees with closing the plant because of the Union and laid off employees including the whole second shift because employees had been bid- ding on jobs pursuant to the collective-bargaining agree- ment. Subsequent to the layoff he also unlawfully threat- ened an employee that Vice President Smith was going to close the plant because of employees' union activities. Upon examining Respondent's defense for the layoff, Vice President White's assertion he laid off the second shift because of a lack of work is neither persuasive nor supported by the evidence. Such evidence reveals the layoff occurred while orders were increasing over the previous month when laid-off employees were also re- called at a time orders were decreasing; admittedly there was at least a couple of days' available work to be per- formed at the time of the layoff; within 2 weeks of the layoff the second shift was reinstituted at the 59th Street facility; all of the discriminatees except four were re- turned to work shortly after the layoff began; overtime work was performed by various employees beginning shortly after the layoff occurred; and in Octobe- the average daily billing per month also increased. Further, Superintendent Rowan who on September 24 furnished Vice President White at his request estimates of the available work to be performed acknowledged prior to that time he had never discussed with or recommended to Vice President White closing the second shift. While Director of Corporate Operations Dougherty claimed about the middle of August he had recommend- ed to Vice President Smith after performing an analysis pursuant to his request that the staffing level at the St. Louis branch was too high, three of those documents upon which he said he relied were either dated August 28 or covered the entire month of August. Thus, such documents for which no explanation was proftkred could not have existed at the time of his analysis or, if so. the figures contained therein had to be based upon projected 340 VINCENT BRASS & ALUMINUM CO. rather than actual and accurate figures. Although Vice President White stated that on September 11 Vice Presi- dent Smith instructed him to study their manning situa- tion and bring it in line with company averages, he did not testify this was a basis for his decision in laying off the second shift. Further, Vice President Smith, who Su- perintendent Rowan said was going to close the plant be- cause of employees' union activities, did not testify. For an employer to lay a group of employees off work for purposes of discouraging union activities violates Section 8(a)(3) and (1) of the Act and the fact the group includes employees who may not be members of or active in the union or their activities known to the em- ployer is immaterial. Northwestern Publishing Company, 144 NLRB 1069, 1073, fn. 14 (1963), enfd. 343 F.2d 521 (7th Cir. 1965); Arnoldware, Inc., 129 NLRB 228 (1960). The assertion of contractual rights by employees under collective-bargaining agreements covering them is also a protected concerted activity. Direct evidence of discrim- inatory motivation is not necessary to support a finding of discrimination and such intent may be inferred from the record as a whole. Heath International, Inc., 196 NLRB 318 (1972). Based upon the foregoing evidence including Respond- ent's union animus as established by its unlawful state- ments and threats herein found; its unlawful threats of plant closure because of the Union and employees' union activities; and threats of layoff including the whole second shift because employees had bid on jobs under the collective-bargaining agreement; the timing of the layoffs in relation to such unlawful threats; the fact six of the discriminatees had bid on jobs; and having rejected Respondent's economic defense for those reasons indicat- ed which I find was a pretext to conceal its real discrimi- natory reasons, I am persuaded and find that Respondent discriminatorily laid off Robert Baker on September 23 and Patrick Tosie, Douglas Alderson, Donald Winters, Dale Tubb, Michael Mathon, Michael Menke, Edward Rademacher, Niels Christensen, Tim Lurtz, Curtis Denton, and Terry Drysse on September 25, and thereaf- ter refused to recall Douglas Alderson, Patrick Tosie, Dale Tubb, and Donald Winters and refused to recall Niels Christensen, Terry Drysse, and Edward Rade- macher until October 7, Curtis Denton until September 29, Tim Lurtz until October 12, Robert Baker until Oc- tober 29, except for the period October 14 through Octo- ber 19, Michael Mathon until October 22, except for the period October 8 through October 9, and Michael Menke until October 22, except for the period from Oc- tober 8 through October 13, because of their union and protected concerted activities and thereby violated Sec- tion 8(a)(1) and (3) of the Act. IV. TIIE EFFECT OF rITHE UNFAIR L ABOR PRAC FICES UPON COMMERCE The activities of Respondent set forth in section III, above, found to constitute unfair labor practices occur- ring in connection with the operations of Respondent de- scribed 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 dis- putes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Vincent Brass & Aluminum Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Miscellaneous Drivers, Helpers and Public Employ- ees Union, Local 610, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All drivers and warehouse employees, including ma- chine operators, helpers, warehousemen, shipping and re- ceiving clerks, employed by the Employer at its 2150 South 59th Street, 2121 January, and 165 Cherokee, St. Louis. Missouri, facilities, EXCLUDING office clerical and professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is now, and at all times material herein has been, the exclusive representative for the purposes of collective bargaining of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By threatening employees with closing the plant be- cause of the Union or employees' union activities; threat- ening employees with layoff including laying off the whole second shift because employees had been bidding on jobs pursuant to the collective-bargaining agreement; threatening an employee that employees would be writ- ten up for taking too much time on breaks and lunch be- cause employees had filed grievances; making statements to an employee disparaging employees because they had bid on jobs pursuant to the collective-bargaining agree- ment and indicating it would be futile for employees to bid on jobs; and indicating to an employee that employ- ees would be assigned jobs without abiding by the terms of the collective-bargaining agreement, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 6. By unilaterally and without bargaining with the Union about terminating on September 30, 1981, the job- bidding procedure contained in article VIII of the collec- tive-bargaining agreement, Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 7. By discriminatorily laying off Robert Baker on Sep- tember 23, 1981, and Patrick Tosie, Douglas Alderson, Donald Winters, Dale Tubb, Michael Mathon, Michael Menke, Edward Rademacher, Niels Christensen, Tim Lurtz, Curtis Denton, and Terry Drysse on September 25, 1981, and refusing to recall Douglas Alderson, Pat- rick Tosie, Dale Tubb, and Donald Winters and refusing to recall Niels Christensen, Terry Drysse, and Edward Rademacher until October 7, Curtis Denton until Sep- tember 29, Tim Lurtz until October 12, Robert Baker until October 29, except for the period October 14 through October 19, Michael Mathon until October 22, 341 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except for the period October 8 through October 9, and Michael Menke until October 22, except for the period October 8 through October 13, because of their union and protected concerted activities, Respondent has vio- lated Section 8(a)(1) and (3) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(l), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Accordingly, having found that Respondent unilateral- ly terminated the job-bidding procedure under article VIII of the collective-bargaining agreement without bar- gaining with the Union, it shall be ordered to cease and desist from engaging in such conduct and to restore that provision retroactive to September 30, 1981, when it was unlawfully terminated and to apply it to all job openings, if any, which may have occurred since that date. Since the September layoff of employees was discrimi- natory, Respondent shall be ordered to offer immediate and full reinstatement to Douglas Alderson, Patrick Tosie, Dale Tubb, and Donald Winters, who were discri- minatorily laid off work on September 25, 1981, to their former jobs or, if those jobs no longer exist, then to sub- stantially equivalent jobs without prejudice to their se- niority and other rights and privileges and to make each of them along with Niels Christensen, Terry Drysse, Edward Rademacher who were discriminatorily laid off from September 25, 1981, until October 7, 1981, Curtis Denton who was discriminatorily laid off from Septem- ber 25, 1981, until September 29, 1981, Tim Lurtz who was discriminatorily laid off from September 25, 1981, until October 12, 1981, Robert Baker who was discrimin- atorily laid off from September 23, 1981, until October 29, 1981, except for the period October 14, 1981, through October 19, 1981, Michael Mathon who was discrimina- torily laid off from September 25, 1981, through October 22, 1981, except for the period October 8, 1981, through October 9, 1981, and Michael Menke who was discrimin- atorily laid off from September 25, 1981, through Octo- ber 22, 1981, except for the period of October 8, 1981, through October 13, 1981, whole for any loss of earnings and compensation they may have suffered as a result of the discrimination against them in their employment herein found by laying them off work. Backpay shall be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest in accordance with Florida Steel Corporation, 231 NLRB 651 (1977).18 Respondent shall also be ordered to expunge from its records any reference to the unlawful layoff of these employees and to provide each of them with written notice of such expunction and inform each of them that Respondent's unlawful conduct will not be used as a basis for further personnel actions concerning them. ' 9 1" See, generally, Isis Plumbing d Healing Co., 138 NLRB 716 (1962). ig See Sterling Sugars Inc., 261 NLRB 472 (1982). Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 0 The Respondent, Vincent Brass & Aluminum Co., St. Louis, Missouri, its officers, agents, successors, and as- signs, shall: i. Cease and desist from: (a) Threatening employees with closing the plant be- cause of the Union or their union activities. (b) Threatening employees with layoff including laying off the whole second shift because employees bid on jobs pursuant to the collective-bargaining agreement. (c) Threatening employees that employees will be written up for taking too much time on breaks and lunch because they file grievances. (d) Making statements to employees disparaging em- ployees because they bid on jobs pursuant to the collec- tive-bargaining agreement and indicating it will be futile for them to bid on jobs. (e) Indicating to employees that employees will be as- signed jobs without abiding by the terms of the collec- tive-bargaining agreement. (f) Refusing to apply and follow the job-bidding proce- dure under article VIII of the collective-bargaining agreement including down bidding on job openings. (g) Laying off, refusing to recall, or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment because they have engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection or to discourage member- ship in, sympathies for, or activities on behalf of Miscel- laneous Drivers, Helpers and Public Employees Union, Local 610, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (h) Unilaterally instituting changes in the wages, rates of pay, hours, or other terms and conditions of employ- ment of its employees in the appropriate unit described below without first notifying and bargaining with Mis- cellaneous Drivers, Helpers and Public Employees Union, Local 610, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America: All drivers and warehouse employees, including machine operators, helpers, warehousemen, shipping and receiving clerks, employed by the Employer at its 2150 South 59th Street. 2121 January and 165 Cherokee, St. Louis, Missouri, facilities, EXCLUD- ING office clerical and professional employees, guards and supervisors as defined in the Act. 20 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. 342 VINCENT BRASS & ALUMINUM CO. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Restore the job-bidding procedure under article VIII of the collective-bargaining agreement retroactive to September 30, 1981, and apply it to all job openings, if any, which may have occurred since that date. (b) Offer immediate and full reinstatement to Douglas Alderson, Patrick Tosie, Dale Tubb, and Donald Winters to their former jobs or, if those jobs no longer exist, then to substantially equivalent jobs without prejudice to their seniority and other rights and privileges and make each of them along with Niels Christensen, Terry Drysse, Mi- chael Menke, Edward Rademacher, Curtis Denton, Tim Lurtz, Robert Baker, and Michael Mathon whole for any loss of earnings and other compensation they may have suffered as the result of the discrimination against them herein found, in the manner set forth in that section of this Decision entitled "The Remedy." (c) Expunge from its files any reference to the layoff of Robert Baker on September 23, 1981, and Douglas Al- derson, Patrick Tosie, Dale Tubb, Donald Winters, Niels Christensen, Terry Drysse, Tim Lurtz, Edward Rade- macher, Curtis Denton, Michael Mathon, and Michael Menke on September 25, 1981, and notify each of them in writing that this has been done and that evidence of this unlawful layoff will not be used as a basis of future personnel action against them. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze and determine the amount of backpay due under the terms of this Order. (e) Post at all of its St. Louis, Missouri, facilities copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms furnished by the Regional Director for Region 14, after being duly signed by Respondent's authorized representative, shall be posted immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or cov- ered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor prac- tices not specifically found herein. 21 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAIl LABOR RF.I.ATIONS BOARD An Agency of the United States Government WE WIL. NOT threaten our employees with clos- ing the plant because of the Union or their union activities. WE WILL NOT threaten our employees with layoff including laying off the whole second shift because employees bid on jobs pursuant to the col- lective-bargaining agreement. WE WILL NOT threaten our employees that em- ployees will be written up for taking too much time on breaks and lunch because they file grievances. WE WILL NOT make statements to our employees disparaging employees because they bid on jobs pursuant to the collective-bargaining agreement and indicate it will be futile for them to bid on jobs. WE WILL NOT indicate to our employees that em- ployees will be assigned jobs without abiding by the terms of the collective-bargaining agreement. WE WILL NOT refuse to apply and follow the job- bidding procedure under article VIII of the collec- tive-bargaining agreement including down bidding on job openings. WE WIL. NOT layoff, refuse to recall, or in any other manner discriminate against our employees in regard to hire or tenure of employment or any term or condition of employment because they have en- gaged in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion or to discourage membership in, sympathies for, or activities on behalf of Miscellaneous Drivers, Helpers and Public Employees Union, Local 610, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT unilaterally institute changes in the wages, rates of pay, hours, or other terms and con- ditions of employment of our employees in the ap- propriate unit described below without first notify- ing and bargaining with Miscellaneous Drivers, Helpers and Public Employees Union, Local 610, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America: All drivers and warehouse employees, including machine operators, helpers, warehousemen, ship- ping and receiving clerks, employed by the Em- ployer at its 2150 South 59th Street, 2121 January and 165 Cherokee, St. Louis, Missouri, facilities, EXCLUDING office clerical and professional employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of 343 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act 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 in Section 8(a)(3) of the National Labor Relations Act, as amended. WE Wlll. restore the job-bidding procedure under article VIII of the collective-bargaining agreement retroactive to September 30, 1981, and apply it to all job openings, if any, which may have occurred since that date. WE WILL offer immediate and full reinstatement to Douglas Alderson, Patrick Tosie, Dale Tubb, and Donald Winters, to their former jobs or, if those jobs no longer exist, then to substantially equivalent jobs without prejudice to their seniority and other rights and privileges and make each of them along with Niels Christensen, Terry Drysse, Edward Rademacher, Curtis Denton, Tim Lurtz, Robert Baker, Michael Mathon, and Michael Menke whole for any loss of earnings and other compensa- tion they may have suffered as the reason of our discrimination against them, with interest. WE WILL expunge from our files any references to the discriminatory layoffs of Robert Baker on September 23, 1981, and Douglas Alderson, Patrick Tosie, Dale Tubb, Donald Winters, Niels Christen- sen, Terry Drysse, Edward Rademacher, Curtis Denton, Tim Lurtz, Michael Mathon, and Michael Menke on September 25, 1981, and WE WILL notify each of them that this has been done and that evi- dence of this unlawful layoff will not be used as the basis for future personnel action against them. VINCENT BRASS & ALUMINUM Co. 344