Accurate Die & Mfg. Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accurate Die & Manufacturing Corp. and Local 247, International Brotherhood of Teamsters, Chauf- feurs, Warehousernen and Helpers of America. Case 7-CA-14551 May 15, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS ANI) PENEI.LO On February 16, 1979, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 remedy and Order,' as modi- fied herein. Amended Remedy Following issuance of the Administrative Law Judge's Decision, the Board held that discharged strikers should be treated the same as any other dis- charged employees with respect to backpay, and that their backpay should be computed from the date of discharge rather than from the date that reinstate- ment is requested. See Abilities and Goodwill, Inc., 241 NLRB 27 (1979), Members Penello and Murphy dis- senting. Here, as the day-shift employees were walk- ing out on the morning of October 26, 1977, Respon- dent's secretary and part owner, Edward Markarian, told them that if they did not return to work or if they did walk out, they would all be fired. Instead of re- turning to work, they left and began picketing. That afternoon Respondent's president and part owner, Ernest Hovizi, told striking employees that if they did not return to work immediately they were fired. None of them returned, and the late-shift employees joined the strike instead of reporting to work. In these cir- cumstances, we conclude that the strikers were effec- tively discharged on October 26, 1977. Accordingly, The Remedy is amended to provide that the discharg- I We correct the Administrative Law Judge's inadvertent references to Rudy Thomas as having been recalled, rather than employee Larry Gerald, by substituting the name Gerald for Thomas wherever it appears in sec. Ill, B, par. Is, and in sec. V, fn. 15, of his Decision. ees receive backpay from October 26, 1977, until the date they are offered reinstatement.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Accurate Die & Manufacturing Corp., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: I. Insert the following as paragraph 2(a): "(a) Offer Aaron Toland, Timothy Ginn, Rudy Thomas, Dale Bailey, Larry Gerald, James Jefferson, Robert Williams, Kenneth Williams, and James Pe- terson immediate and full reinstatement to their for- mer jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earn- ings, with interest, which they may have suffered by reason to our discrimination against them, in the manner set forth in the section of the Board's Deci- sion and Order entitled 'Amended Remedy.'" 2. Substitute the attached notice for that of the Administrative Law Judge. 2 For the reasons stated in Member Murphy's and Member Penello's dis- senting opinion in Abilies and Goode.ill, Inc.. supra, Member Murphy would, contrary to her colleagues, compute backpay from December 12, 1977, when an unconditional offer to return to work was made by the strik- ers. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by dis- charging any employee who engages in any ac- tivity in support of said Union, or any other union, or in any other manner discriminating against them in regard to their hire or tenure of employment or any terms or conditions of em- ployment. WE WILL NOl refuse to bargain collectively with the aforesaid Union as exclusive bargaining representative of all of our full-time and regular part-time production and maintenance employ- 242 NLRB No. 46 280 ACCURATE DIE & MANUFACTURING CORP. ees employed by us at our Detroit, Michigan, facility excluding all office clerical employees, professional employees, confidential employees, guards and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights to self-organization; to form, join, or assist the aforesaid Union or any other organization; to bargain collectively through representatives of their own choosing; and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such ac- tivities except to the extent that such right may be affected by an agreement, requiring member- ship in a labor organization as a condition of employment, as authorized by the National La- bor Relations Act. WE WILL offer Aaron Toland, Timothy Ginn, Rudy Thomas, Dale Bailey, Larry Gerald, James Jefferson, Robert Williams, Kenneth Williams, and James Peterson immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings, with interest, which they may have suffered by reason of our discrimination against them. WE WILL, upon request, meet and bargain col- lectively with Local 247, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bar- gaining representative of our employees in the above-described unit, concerning rates of pay, wages, hours of employment and other terms and conditions of employment and, if an under- standing is reached, WE WILL embody such un- derstanding in a signed agreement. All our employees are free to become, remain, or refrain from becoming or remaining members of the aforesaid Union or any other labor organization. ACCURATE DIE & MANUFACTURING CORP. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard at Detroit, Michigan, upon the complaint of the General Counsel issued December 16, 1977, which com- plaint was based on an original charge filed on October 28, 1977, by Local 247, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or the Charging Party, and an amended charge filed by the Union on December 7, 1977. The complaint alleges, in substance, that Accurate Die & Manufacturing Corp., hereinafter called Respondent or the Company, has violated and is violating Section 8(a)(5) of' the National Labor Relations Act, as amended, herein called the Act, by refusing to bargain with the Union as the recognized majority representative of Respondent's em- ployees and Section 8(a)(3) and (1) of the Act by discharg- ing and otherwise discriminating with regard to the tenure of employment of Respondent's employees and by interfer- ing with, restraining, and coercing Respondent's employees' exercise of their Section 7 rights. Respondent. while admit- ting the jurisdictional allegations of the complaint, denies the commission of any unfair labor practices. Respondent contends that the Union was not and is not the majority representative of its employees, that it did not discharge any of its employees or interfere in any way with the tenure of their employment, and did not interfere with any of the employees' Section 7 rights. Upon the entire record and after consideration of the brief filed by counsel for Respondent,' and upon my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONI)ENT Respondent, a Michigan corporation which maintains its office and place of business in the city of Detroit, Michigan, is engaged in the painting of automotive stamping parts and related products. During the year ending December 31. 1976, a representative period, Respondent performed ser- vices of a value in excess of $70,000, of which services of a value in excess of $50,000 were performed for a company located in the State of Michigan, which annually, in the course and conduct of its operations. purchased and caused to be shipped to its Detroit, Michigan, facility, directly from points located outside the State of Michigan, products of a value in excess of $50,000. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. The Issues This case arises from the Union's organizational drive of Respondent's employees within a 2-day period, a demand for recognition on the second day, an alleged refusal to recognize by Respondent followed by a strike of the em- ployees, and the alleged discriminatory discharge and re- fusal by Respondent to reinstate the strikers upon their of- fer to return to work made on the striker's behalf by the Union. I Counsel for the General Counsel did not file a bnef although requested to do so inasmuch as he waived oral argument at the hearing. 281 I)I ('ISI()NS () N\ II()NAI I AB\I()R RII..A IIONS B()ARI) Respondent's ditlnse to tlhe conipllinl ;llIegtions con- sists of tllhree hasic conilclttions: I ) ithe I Ilion did not e.ljos ni;aorit\ status at tilhe lime thlie demand fotr rcovnition 1is \ mlade bs, tile In'ion 2) Rcspondenl did iltl dliIchaige tile emplhoxees: iand (3) Respondent could not einstale tlhe strikers (with some exceptillns) because the strike resulted in such a loss of business lthai there w as no loner work for tile inLFividuals who joited tile strike or tor nlonC else. . It, t} i N In October 1977 Respondent, In its business of pailting automlOtise sanmping parts. eployed I1) nonsuperis0ir5 emploes. '1 he working ow neis of Responlden t t lhat time were, and still are, Idward Markarian, secretar and Irnest lhvii. president. In addition. ,a supervisor on the daN shift was homas Kalustin, also known to tile employees is "I K." Sometime in earls, () October 1977: daN-shift eploee Robert W illiams was working beside Marka;r-ian when the two began to discuss unionism. Williams asked Mlarkarilan why tfle emploNees in the shop did not haVe a uniol. Mali-- karian replied to the effect that Respondent could not af- Ifrd a union, and that if one was brought in Respolndenl "... might as well close the place." tie furtilher sltated that if Williams wanted a union, he would have to get a job at Ford. (eidentl referring to the Ford Motor (Company) . On October 20 after some of the day-shift employees had overstayed their coffeebreak, a notice was posted b Re- spondent to the effect that during the coffeebreak employ- ees were not permitted to leave tire building. It w ould seem that the employees left the building to have their coffee because they desired to get away from the paint fumes. Upon reading the notice. the emploNees talked an;ong themselves and agreed that there was a need to unioniize They chose employees Robert Williams and l.arrs Gerald to make contact with the Union. Although the record re- veals some conflict between the testimonies of Williams and Gerald as to how the contact with the tinion was first made, they mutually agreed in their testimonies that Ed- ward J. Kantzler, vice president construction business man- ager of the Union. appeared outside the door of Respon- dent's premises shortly alfter the noon break on October 25 and was met by Robert Williams. Kantzler gave member- ship applications and checkoff authorization cards to W\il- liams as well as instructions as to the filling out of the sine. After giving to Williams enough of the cards and authoriza- tion slips to be signed by all of Respondent's emploees, Kantzler left the premises. Williams returned inside the plant with the cards, which he laid on a worktable under his jacket. Evidently, Kalustin saw him do this, came over to the table, lifted the jacket. looked at the cards, and then turned around and left. but only after Williams grabbed the cards from Kalustin and put them back in the jacket with the other cards. Williams then placed all of the cards and his jacket in his locker.' Thereafter, during the breaks, lunch break, and after work at the home of one of the employees (all of whom 2Unless otherwise specified. all dates herein are in 1977. 3 The record does not reveal what Kalustin did thereafter with regard to his recentl) acquired knowledge of the cards. seem to lixc in the immlediate neighborhood). Williams dis- tributed the cards. A number of them were signed at the time, and some of them were returned to Williams. Somie of the cards were rtetained hb tlhe elploces who signed them anid returnedl hci tile next da, . October 26. I lie follow ing mnl-lnilg. (October 26. Kantzlcr returned to I;Respodcnl's prelitse at approiiXilltelk I) i i.,. together N ilh a ssi;te.l . John Koandra. Kantzler approachCed Kallstinl and asked himl who was the hoss. Kalustin pointed oullt Markaurian. Kaizler thereuponl approached Mlarkarian ;tid told hii that lie. Kaintler, "represented Ils people." Mlarkaria;n l e Kantler to Respondent's office in the .icill- its of the wni rkiniu area. After the t wo were in the offtlice, Kantler gave larkariant his business card and again told him that he represenited Mlirkariln's people. When Mlarkarian asked whetlier Kaitzler represented all or sonic 0't the emploxees, KantZler stated "all of' them." Markarian then told Kantzler "we don't need a ulniotn" or "'we do01'l want a union." Markarian denied that he had the authioritv to talk to Kaintzler about the nion or union matters and inilrmed Kantzler that the president of Respondent was rnest Ilovizi. Markarian in- formed Kantzler that [Hovizi was not in at the time but would be returning in approximately I hour. Kantzler thereupon intornlet Markarian he would return at apprloxi- matelI 1 1:3(1 a.m. on that date. Kantzler then left the prem- ises with his associate. WVhile Kantzler was in Respondent's office with MIarka- rian. his associate, Kolandra, collected signed cards from a number of the emploees. lowever. at the moment that Kantzler made his demand flr recognition upon Markarian at approximately 10 a m. on the mornirig of October 26, Kantzler did not have in his possession. nor were there in the possession of the UInion anN union designation cards. Nor did Kantzler possess anll knowledge otf how mans cards had been signed. Ilowecer. b the time Kantzler left the premises with his assoctole John Kolandra, the latter had collected some o the cards. Nevertheless, the record is insutticientlI precise to determine that alt the time a major- ity of signed designatio n cards had been collected by Kolandra. Shortly after Kantzler and Kolandra left with the prom- ise to return in I hour. Respondent's president. Hovizi, re- turned to the premises. Although informed by Markarian as to what had occurred and that Kantzler would return at approximatel 1 1:30 an.m., Ftovizi stated that he could not wait fir Kantzler because he had a delivcery to make to the airport to meet a scheduled tlight with finished material on the (lomlpans' truck. Accordingly, Flovizi left the premises before the appointed time of Kantzler's return. When Kantzlcr returned with his associate at approxi- miatel' 1 1:25 on that day., he again spoke to Markarian who infornied him that Hovizi had returned but had then left. At that time Kantzler again asked Markarian to recognize the Union as Respondent's employees' bargaining repre- sentative. Again Markarian stated that Respondent did not need and did not want a union. When Kantzler answered that Markarian did not leave him very much room, Marka- rian told Kantzler to see Respondent's lawyer. Following some futher discussion. Kantzler, not having received either consent or encouragement from Markarian, he left the office and went into the working area of the 282 283 plant. A\llhough there is son111C c01ntl'tll as to Ihe e\xla vords used b Kalllcr, there is no1 doubt that he signaled to the emplobees uiilh his arms aind inflOrmed them that the' had to decide uhat the! u alited to do. 1he motion he made with his arms x;as calculated to dilrect the CeIIployees out of the shop. Alter soime consultation amiong thellselxes the emplo ees stated that the waillted thie L nion. Kant/ler stated. "ell co)me on." lie then talked olt wkith the em- ployees lllouiig him. [loweer. before the men alked out Markarian came out of the oflice and stated to the eml- ployees that ift' they did not return to work or it'f le, did walk out. they would all he fired. It was after thls that the entployees decided to ftiollow Kantler out Olnt tile street.' All of the day-shit employees uxalked out with Kantzler. When the: arrived outside the shop. Kanitzler distributed picket signs' which the men used to picket the entrance to Respondent's facilit. Shortlv after the picketing began. Iloxiii returned in the truck. looked at the men picketing. anlId wenIt inside. Ap- proximately I hour later he came out and spoke to Kantzler and told the latter he could not do this. lie then turned It the picketing employees and stated "if' oU gus don'lt get back in there }ou are fired." le then walked back inside.' L)uring the afternoon and c ening of October 2'(. Mhen the late-shift employees came to uork. they sasw the picket signs. Although there ere some attempts hb them to enlter the plant. they did not enter. Instead. the joined the picket line. Although some of them had not signed cards or check- off authorizations before that inme. they did so that a;telr- noon. Accordingly b the een ing of' October 26. 9 out of Respondent's 10() emploees had signed either one or both types of cards distributed b the L nion through \Willialns or through other union officials. The onl) employee who did not either sign a card or strike iwas Iienr Tolis. who did not testift. On October 27 one of' the emploees on the picket line, Aaron T'oland, asked loIvizi when they ere going to he paid. Hlovizi answered that as soon as the accountant made out the checks the men uould be paid. Shortly thereafter the firm accountant, who is also a stockholder of the firm although he performs his uork for Respondent aua', from the premises. arrived. 'The checks were then distributed. Each man was given two checks. One check. which uas for the week beftore the week of' te strike. was the usual check for the amount given each employee according to the hours he worked times the rate of his wages. Ihe second check. dated October 26. hich as for the short eek hich ended the da5 the strike cotiimenced. had inscribed thereon the word "tinal" in capital letters. Although IJo,izi did not pass out all of the checks personall those empl!ees to whom he did pass out these linlal checks ere told that the were fired bh lloxiti. lousever. as noted, all of the checks for the short week ending October 26. had inscribed thereon the word "final." I All el the toregoing is trom credited porirons ,I the Iestlln llle Rhert Wilihamsi, tdw ard J. Kantzler. Ja mes S. Jleron. anid i .arrs (icradi Al- though Markarian related slightls different ersio, of the arliou ll o nersa lions and hai occurred when the mel decided to Illle Kaniler out t the shop, the alrlulons were n extllensle eniugh I) effectivl co lroxert the teslimonles the others, 'I he record does nt reveal he content ot the signl :rom credited testimonies ' ils inrd Kalniler Inl order o Ilndulice Iii to talk o lnll I egardllg possl- ble liecoglnlltion and bargallllng. Kalltller behgan t tlloU llox/li abouIt s tile latter made dcliecrics i Respondent's trLick. I)urinIg the ca;rl p;irt of( No embelrr . vthliln 2 xeks ittrl tilhe strik h1d begil Kantiler xx as thuits enagedi in lblorig i ill \hi sli edl ii Iloi st(pend ls truck aind asked Knitlcl to pull up beside han . lie a sked Kantiler iseh the lltter t is tfollo\xlg i him. Kantzler ansx ereld that it as lis intention to picket xhierexcr lioxilzl , as making t delixer. \tlter Somle disculssion aid a fter Kantiler explained that all hie x,ns scking xs a t1or l ovii to sit do\ n and i lk lo izi. ho had irst statedl that ththre as nolthilg to tlk about, cildenltl ch inged his mind and told Kantiler. comle oln. \ill hbun oui a beer."'' Kantzler accepted lox\11i's init ion. anlld ile to \'ent ililto a nealrh hrll. After the were seatled Ilo \ii stated he did not need a tinion. hbut thatle h h1;ad ithing Iag lnst tile lii1. and tl hat lie hd been at leatousters tmember himnself at one time. lle further told Kantzler that Respondent hd 'just come ut oft' bankruptcy." indl that Respondent xis xA ithout funds ilnd it' the pressure continued lie xtiuld sell te material in thle shop and close it doxti. ilo i/i eclared that lie jst xsantcd to get out xshat he put into the buildingl aft'ter xrhich hie \,oulld be finisied. Kantler replied t the etlecl that if this \ ,is \\ hat Ioeizi's intenllton , as (e tietl tinishilg the work and closing dovn). Kanliler ould not harass him ains more. his ended the con\ersation.' In connectionl thereithl. ilo\iLi. in estitfing, stlated that Rsprtidentit ust could no t ;affird al nioll it that time. ()n No\elmber 29 the ilion. oxer the siniatur c of Kant,- ler's assistant. sent to Respondent and to each of the eni- plo,ees notice that the picketing had ceased and that the eniplo\ees ere directed to return to ork ininediatelv. O() )ecember 7 thc Im nn again sent Respondent a notice. h, letter signedc hb Kiiinler, which stated that the letter co)lsti- tuted a notice of th' e Ilioll's utllColditioril ofler on behalf of all empliees co ered h the representatiotn denlatd of the L nion to retulrn to Xwork. Ihereafter. Respondent re- calledl epletes \;irton l'ln111i. )ale Bailey. and Rudy I'holias ,it a date hr dlites not estahlished b! the rtecord. None lof the other eliploecs xxho x eit o strike a e\ hbeen recalled. Respondent. at that limle it recalled the three ahboe- nantied enplo ees. e iently, had no olher emplo,ees except lolis. members )of the Nlarkarian fnaiil. members oft the 1oxi7i timi.. and the individuals whho were emplo!ed Ias supervisors. Respondent. through its to oticers. eplailmed that there Vas no work for the others. but that it has not retfu'sed to recall them. D)espite Hlo\ii's protestations to Kantzler. Responden hs nol gone out o' husiness. ('. h [ llijon ' i W hl.oi .Sl iams ,As noted aboxe. at the end of the da;! or eening of ()Octo- hber 26 the niotn hd both designation cards and deduction authorizations fromn 9 emplo! ees itout of' Respondent's I(t eraplo ees. These etilllx ees re Aaron Iolandl. imloth (;in l;lames Peterson Rud I'honias. l)ale 1. Ba;ilex. Lar- - r edlited t rrICS m lilCe o K Ailt c: l- 11 l tt I/0 I VVI RAII11· 1)[1, \1,osstI U IL R KIsS CORPr DECISIONS OF NATIONAL LABOR RELATIONS BOARD ry Gerald. James Jefferson, Robert Williams, and Kenneth Williams. As noted, the 10th employee. Henry Tolis. evi- dently did not sign a card. All of these union designation cards and checkoff authorizations were signed and dated either October 25 or October 26 and were in the hands of either Kantzler or other union officials by the end of the day on October 26. Although the cards of Toland and Ginn, which desig- nated the Union as their bargaining representative and re- quested union membership are unsigned, each of these em- ployees had also signed, on October 26, a checkoff authorization and had given the same to the Union. In ad- ditional, both Toland and Ginn testified that each had filled out the unsigned cards, had dated them the same date. and had merely overlooked placing their signatures on the cards. The designation cards of Rudy Thomas. Larry Ger- ald, and James Jefferson, although signed by those three employees, are undated. However, each of these employees testified without contradiction that the cards were made out and given to the Union on the same date that their dated checkoff authorizations were executed and given to the Union. In the cases of Thomas and Gerald it was October 25, and in the case of Jefferson it was October 26. It has long been established that the failure of an em- ployee to sign a designation card delivered to the Union, where the employee testifies that he has intended to desig- nate the union as of the date or time that the card was given to the Union, is immaterial, and the card may be counted in computing the Union's majority status or lack thereof. Un- der the circumstances here, the absence of the signatures or the dates on the respective cards heretofore mentioned does not invalidate the designation of the Union as the bargain- ing representative of the employees named., Accordingly, I find and conclude that as of the end of the day on October 26, 1977, the Union enjoyed majority status among Respondent's employees, having received authoriza- tions from 9 out of 10 of Respondent's employees and, therefore, has been from that date the majority representa- tive of Respodent's employees of the purposes defined in the Act. D. Discussion and Concluding Findings Having determined that the Union is a majority repre- sentative of the employees in Respondent's shop, I further find and conclude that the appropriate unit represented by the Union, as set forth above, is all full-time production and maintenance employees and regular part-time production and maintenance employees employed by Respondent at its facility location in Detroit, Michigan, but excluding all of- fice clerical employees, professional employees, confidential employees, guards, and supervisors as defined in the Act. As noted above, Respondent contends that inasmuch as the Union, at the time it made its demand through business manager Kantzler upon Edward Markarian on October 26, did not enjoy majority status inasmuch as the designation cards and/or the deduction authorization cards had not been delivered to a union representative and were not in the Union's hands as of that time. However. as the record sI. Taitel and Son. 119 NLRB 910. 912 (957). shows. by the end of that day, October 26, the Union did enjoy majority status. Respondent further contends in connection therewith that Kantzler, at the time, made no attempt to evidence the Union's majority status by a show of cards or by presenting any other matter upon which Respondent could determine whether the Union represented a majority. In fact, argues Respondent, at no time during the entire course of events did any union representative make any attempt to verify the Union's claim that it was, in fact, the majority repre- sentative of Respondent's employees in the unit heretofore found appropriate. Therefore, reasons Respondent, in ac- cordance with court precedent" and in light of the foregoing facts, Respondent was and is under no obligation to recog- nize or bargain with the Union because the Union is not the majority representative of its employees, and the Union has not taken the necessary steps to prove its majority claim. However, Respondent's contention in the foregoing re- gard is not well taken. When the Union finally attained its majority status on October 26 all but one of Respondent's employees had, in fact, joined the strike. In view of this, Respondent would still have had the right (even though the Union, in fact, attained majority), to refuse to recognize the Union and to do nothing until the Union proved its major- ity through a Board conducted election. Respondent could have refused an offer of proof of majority through the signed designation cards, had the Union made such an of' fer. In this respect, Respondent's contention is legally cor- rect. While the thrust of the cases upon which Respondent relies'" is that an employer who has not engaged in an un- fair labor practice impairing the electoral process does not commit an unfair labor practice in violation of Section 8(a)(5) of the Act merely because he refuses to accept any proof of majority status other than the results of a Board- conducted election." the converse of the foregoing principle is that an employer who does commit unfair labor practices impairing the electoral process may not sit back and await the results of such process and thereby preclude the finding of a violation of Section 8(a)(5) of the Act.'2 In the case at bar, immediately after Kantzler had made his first demand for recognition on October 25 Markarian threatened the employees with discharge if they walked out. On October 27 when Hovizi distributed the paychecks to the employees on the picket line he told the employees that they were discharged. Further proof of this is the fact that the checks were marked "final," despite Respondent's pres- ent claim that the employees were not discharged." Thus, the employees were discharged for engaging in a lawful strike in support of the Union's recognitional de- mands. for by the time of the discharges the Union had 9 Citing Linden Lumber Division, Summer & Co. v. ,.L.R.B. 419 U.S. 301 (19741: N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969). O Supra. u Supra. N L.R.B. v. Gissel Packing Co. supra. at 595. 601. bI do not give credence to Respondent's claim that the checks were marked "final" in error by Respondent's bookkeeper. The bookkeeper was a stockholder in Respondent's closely held, small corporate enterprise. More- over, Hovizi. Respondent's president. who saw the checks both before and during distribution, did nothing to correct the alleged error. Nor do I credit Ho izi's version of what he told the employees as he gave them the checks. 284 ACCURATE DIE & MANUFACTURING CORP. gained majority status. I conclude, therefore, that the dis- charges were unlawful, discriminatory, and in violation of Section 8(aX3) and (I) of the Act, and that such discharges go to the very heart of the Act. One last segment of Respondent's contention remains for disposition. Respondent maintains that the Union made only one demand for recognition which did not continue, and that Respondent therefore cannot be ordered to bar- gain with the Union. Even assuming that under all the facts here presented the demand was not a continuing one, it was renewed in the early part of November 1977 when Kantzler and Hovizi discussed the union matter in a bar over glasses of beer. To hold that Hovizi did not know by Kantzler's actions in following his truck and by then discussing the matter in the bar that Kantzler was demanding recognition for the Union would be the height of naivete. Accordingly, I find and conclude that whatever protec- tion would have been afforded Respondent upon the Union's continued or renewed demand for recognition un- der the cases relied upon by Respondent was forfeited by Respondent when it discriminatorily discharged the same 9 out of 10 employees who designated the Union as their bargaining representative for supporting the Union's recog- nitional efforts. Therefore, Respondent's refusal to recog- nize and to bargain with the Union, even if not unlawful before the discharges, became such thereafter under the very precedents cited by Respondent. Accordingly. the re- fusal constituted a violation of Section 8(a)(5) and (I) of the Act. Moreover, the strike, if not an unfair labor practice strike at its outset, was converted into an unfair labor practice strike upon the discriminatory discharge of the strikers and the unlawful refusal to bargain. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Re- spondent herein described 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 It having been found that Respondent herein has vio- lated the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging Aaron Toland, Timothy Ginn, Rudy Thomas, Dale Bailey, Larry Gerald, James Jefferson, Robert Williams, Kenneth Williams, and James Peterson, it will be ordered that each of them be reinstated to their former or equivalent posi- tions, if they so desire, and that Respondent make them whole by paying to each of them a sum of money equal to that which each would have earned but for the discrimina- tion visited upon them by Respondent. Backpay shall be computed with interest thereon in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950) and Flor- ida Steel Corporation, 231 NLRB 651 (1977).'' It having been found that the foregoing employees were unfair labor practice strikers and that Local Union 247, the Union herein, made an unconditional offer to return to work on December 7, 1977, on behalf of the above-named employ- ees, backpay shall be computed from that day in accord- ance with the above-cited cases.'" It having been found, as set forth above, that Respondent has engaged in violation of Section 8(a)(5) and (1) of the Act and has unlawfully failed and refused to recognize and bargain with the Union, it will be ordered that Respondent cease and desist therefrom and bargain with the Union at reasonable times at the request of the said Union concern- ing rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact and the entire record in this case. I make the following: CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging its employees for supporting the Union, Respondent has discriminated against them and has therefore engaged in unfair labor practices within the meaning of Section 8(a(l) and (3) of the Act. 4. By failing and refusing to bargain in good faith with the Union as a representative of all full-time production and maintenance employees and regular part-time produc- tion and maintenance employees employed by Respondent at its facility located in Detroit, Michigan, but excluding all office clerical employees, professional employees, confiden- tial employees, guards, and supervisors as defined in the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On the basis of the foregoing findings of fact and conclu- sions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER'6 The Respondent, Accurate Die & Manufacturing Corp., Detroit, Michigan, its officers, agents, successors, and as- signs, shall: 4 See, generally, Iis Plumbing d Heating Co, 138 NLRB 716 (1962). to Although the record establishes that Aaron Toland, Dale Bailey, and Rudy Thomas have been recalled by Respondent, there is no record showing of the date or dales thereof, whether they are entitled to backpay, or whether their reinstatements were to their former or substantially equivalent posi- tions. 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations or the National Labor Relations Board, the findings. conclusions and recommended Order herein shall, as provided by 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. 285 I)( ISIO()NS OF NAII()NAI. LABOR REI.ATIONS BOARD 1. ('ease and desist from: (a) Discouraging membership of its employees in l.ocal 247, International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. or any other labor organization, by discharging said employees because of their support of and activities on behalf of the said Union or in any other manner discriminating against them in re- gard to their hire, tenure of employment, or any term or condition of employment. (b) Refusing to bargain collectively with I.ocal 247, In- ternational Brotherhood of' Teamsters, Chauffeurs. Ware- housemen and Helpers of America. as the exclusive repre- sentative of a11l of' Respondent's fill-tinle production and maintenance employees and regular part-timrne production and maintenance employees employed by Respondent at its facilit located in Detroit. Michigan, excluding all office clerical employees. professional employees, confidential em- ployees. guards. and supervisors its defined in the Act. with respect to rates of pay, wages, hours of employment, and other terms and conditions of emplon mlent. (c) In any other manner interfering with. restraining, or coercing employees in the exercise of' their rigllts uiar;lal- teed them 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 condition of' em- ploynment, as authorized in Section 8(a)(3) of the National l.abor Relations Act, as amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Aaron I o- land, Timothy Giinn, Rudy Thonas, I)ale Bailes I.arr\? Gerald, James Jefferson, Robert W'illiams, Kenneth Wil- liams, and Jalies Peterson to their former or substanitiallk equivalent positions, without prejudice to their seniority or other rights and privileges enjoyed, and make them whole for any loss of earnings which they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (h) Upon request. bargain collectively with ocal 247, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. as the exclusive repre- sentative of the employees in the appropriate Union named above and embody any understanding reached in a signed collective-bargaining agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records. timecards. personnel records and reports, and all other records neces- sary and pertinent to compute the amount of hackpay due in accordance with the section of this ecision entitled "The Remedy." (d) Post at its plant in Detroit., Michigan. copies of the attached notice marked "Appendix."' Copies of said no- tice, to be furnished by the Regional Director for Region 7, after being duly signed by authorized representative of Re- spondent. shall be posted bh Respondent immediately upon receipt thereof, and he maintained by it for 6(1 consecutive cdays thereafter. in conspicuous places, including all places where notices to employees are customaril? posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defliced, or covered by any other material. (el Notify the Regional Director for Region 7, in writing. within 20 days froitm the dale of the ()rder, what steps have been taken to comply herewith. 7 In the c\ent hat his ()rder is cnircd h a judgmcnt ola t nIlted Slalcs (Court i Appealls. the rd i the nice reading "Plsted h urder of the NatIl a: l Ilahor Rel:ations Boa;lrd shall read ''-lsted Pursualnt Io a Judgment f1 the tlil ted St;ltes (' tlr l ot Appcals Inilrcing an order ot the Natlin.al I.ahor Rlatins Hlard " 286