The Boss Manufacturing Co.

In the Matter of THE Boss MANUFACTURING COMPANY and INTER- NATIONAL GLOVE WORKERS' UNION OF AMERICA, LOCAL No. 85 Cases Nos. C-115 and R-40 Glove Manufacturing Industry-Labor Dispute Affecting Commerce Since First Hearing in the Case: Board's order of August 27, 1937, not invalidated by existence or absence of threat of labor dispute or by other circumstances arising subsequent to the commission of the unfair labor practices-Reinstate- ment of Discharged Employees : readjustments required to effect the rein- statement pursuant to Board's order held immaterial in determining whether reinstatement should be ordered ; recommendation that Board's order be changed to set forth in more detail the mechanics of reinstatement previously ordered ; employment in another city requiring commutation of employee not substan- tially equivalent employment-Representatives on August 27, 1937, and in May 1938: proof of choice : membership in Union ; defection in Union's ranks, when not accompanied by proof that due to some cause other than respondent's unfair labor practices, does not negative finding of majority prior to commis- sion of the unfair labor practices-Strikers: recommendation that section of Board's order requiring their reinstatement with back pay be enforced as issued, since no proof that reinstatement already effected was without prejudice to seniority or other rights and privileges-Collective Bargaining : meeting with union representatives but refusing to recognize union as exclusive representa- tive, although it represents a majority, does not satisfy requirements of Act ; discontinuance of refusal to bargain no bar to Board's order against resump- tion of such refusal-Recommendation : that Board's order be enforced as issued, with certain changes noted. Mr. Robert R. Rissman, for the Board. Fyffe and Clarke, by Mr. A. J. Smith. and Mr. John Harrington, of Chicago, Ill., for the respondent. Mr. A. G. Koplow, of counsel to the Board. SUPPLEMENTAL FINDINGS OF FACT AND RECOMMENDATION February 20, 1939 On August 27, 1937, the National Labor Relations Board, herein called the Board, issued a Decision 1 in the above-entitled case in which it found that The Boss Manufacturing Company, Kewanee, Illinois, herein called the respondent, had engaged in and was en- gaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- 13 N. L. R. B. 400. 11 N. L. R. B., No. 41. 432 THE BOSS MANUFACTURING COMPANY ET AL. 433 tions Act, 49 Stat. 449, herein called the Act, and ordered the respond- ent to cease and desist from such practices and to take certain affirma- tive action which the Board found would effectuate the policies of the Act. On October 25, 1937, the Board, pursuant to Section 10 (e) of the Act, petitioned the United States Circuit Court of Appeals for the Seventh Circuit, herein called the Court, for the enforcement of its order of August 27, 1937, and filed with said Court a transcript of the entire record in the proceedings before the Board. Thereafter, the respondent petitioned the Court for leave to adduce additional evidence, alleging in its petition, inter alia : (14) That testimony upon the following matters is material and necessary to enable this Court to determine whether the order of the Board should be enforced A. The existence or absence or threat of any labor dispute or labor trouble affecting interstate commerce at the respond- ent's plant since the date of the hearing in the above-entitled cause, namely, April 30, and May 1, 1936. B. The situation in regard to the jobs of the four, persons whom respondent is ordered to reinstate and the effect of such reinstatement upon other employes of respondent, and the situation with respect to those persons. C. The question as to who are the representatives of the employes of respondent for purposes of collective bargaining at the present time and at the time of the entry of the Board's order. D. The entire question of the status of employes of re- spondent on strike August 8, 1935, including who are to be regarded as such employes. E. All other facts and circumstances that have arisen since May 1, 1936, and that are pertinent in determining whether the enforcement of the Board's orders is proper under the provi- sions of the Act. WHEREFORE, THIS RESPONDENT PRAYS THAT this Honorable Court order additional testimony upon the aforesaid matter to be taken before the Board, its member, agent or agency, and to be made a part of the transcript in this cause. The Board opposed the petition. On January 12, 1938, the Court entered an order "granting leave to adduce additional testimony sub- ject to a motion to strike said testimony when subsequently adduced." Pursuant to notice duly served upon the respondent and upon In- ternational Glove Workers' Union of America, Local No. 85, herein called the Union, a hearing was held in Kewanee, Illinois, on May 5 and 6, 1938, and in Chicago, Illinois, on May 12, 1938, before Horace 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Ruckel, the Trial Examiner duly designated by the Board, for the purpose of according the respondent the opportunity to adduce such additional testimony. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to the parties. The Board called no witnesses at this hearing, and limited its participation to cross-examination of witnesses for the respondent. During the hearing, and again at the close of the hearing, the Board's attorney made various motions to strike the testimony of witnesses. The rulings of the Trial Examiner denying the motions are hereby affirmed except in so far as they are inconsistent with the findings below. The Trial Examiner also made numerous rulings on other motions and on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 23, 1938, the Trial Examiner filed an Intermediate Re- port, which was duly served upon the respondent and upon the Union, in which he made certain findings and recommended that the Board's order of August 27, 1937, be reaffirmed except as to that portion of it which directs the reinstatement of those employees on strike August 8, 1935. The Intermediate Report also granted the parties the right to request oral argument. The respondent filed exceptions to the Intermediate Report and submitted a brief in support of such excep- tions, but made no request for oral argument. The Board has con- sidered the respondent's exceptions to the Intermediate Report and finds them to be without merit. In its decision of August 27, 1937, the Board found, inter alia, that the respondent, an Illinois corporation, maintains its principal offices and a plant at Kewanee, Illinois, and sales offices and branch factories in Toledo, Findlay, and Bluffton, Ohio; Fort Wayne and Lebanon, Indiana; Chicago, Peoria, and Kewanee, Illinois; Kansas City, Mis- souri; Los Angeles, California; and Brooklyn and New York, New York; that it is engaged principally in the manufacture, sale, and distribution of workmen's gloves, mittens, and corn huskers; that over 50 per cent of the raw materials purchased by the respondent come from States other than the State of Illinois; that most of the re- spondent's finished products are sold and shipped to its branch sales offices and customers throughout the United States; and that its gross business transacted during 1935 was $4,327,194.84, of which $1,155,- 079.03 was transacted in Illinois. With respect to the unfair labor practices, the Board found that between July 5 and July 20, 1935, the respondent discriminatorily discharged four employees to dis- courage membership in the Union; that on September 8, 1935, and at all times thereafter, the respondent refused to recognize and bar- gain collectively with the Union, which was the duly designated THE BOSS MANUFACTURING COMPANY ET AL. 435 representative of a majority of its employees in an appropriate unit; and that by reason of said unfair labor practices the respondent's production workers struck from August 8 to October 16, 1935. The Board further found that such activities of the respondent, occurring in connection with the business operations of the respondent, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The Board thereupon made conclusions of law consistent with the above findings. The Board's order provided, in substance, that the respondent (1) cease and desist from engaging in the unfair labor practices; (2) offer reinstatement to their former positions to four named employees and make them whole for any loss of pay they may have suffered by reason of their discharge; (3) upon application offer reinstatement to certain striking employees and make them whole for any losses they may suffer by reason of a refusal of their application for reinstatement; (4) upon request, bargain collectively with the Union as the exclusive representative of all its production employees, excepting supervisory and clerical em- ployees; and (5) post notices throughout its plant stating that it will cease and desist from its unfair labor practices. Upon the entire record in the case, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT 1. The existence or absence or threat of any labor dispute affecting interstate commerce at respondent's plant since the date of the hearing, April 30 and May 1, 1936 Evidence introduced in the instant proceeding establishes that since May 1, 1936, there has been no interruption of production at the respondent's plant by reason of a labor dispute of any kind. The respondent introduced no evidence that the character or volume of its business in commerce has changed materially since that date. The respondent apparently contends that its activities since May 1936, occurring in connection with its business operations, have not led nor have tended to lead to labor disputes burdening or obstruct- ing commerce or the free flow of commerce and that therefore com- pliance with the Board's order will not effectuate the policies of the Act. The respondent's contention is untenable. Section 1 of the Act states in part : Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards com- merce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices funda- 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working condi- tions, and by restoring equality of bargaining power between employers and employees. It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by work- ers of full freedom of association, self-organization, and designa- tion of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other material aid or protection. Whether the respondent's activities since 1936 have resulted in the actual obstruction of commerce or the free flow of commerce, and whether the threat of such obstruction has since been imminent, can- not affect the propriety of the Board's order. In the case of Clover Fork Coal Company v. National Labor Relations Board,2 the peti- tioner urged that the Board's order be set aside because no strike or threat of strike had resulted from the alleged unfair labor practices. The Court, in denying the petition to set aside the order, stated : It must, we think, be concluded that it is the prevention of strikes, the impact of which upon interstate commerce when and if they occur will directly and immediately burden or obstruct such commerce, that furnishes the ground for the exercise of the Congressional power. The immediacy and directness of the ef- fect of industrial strife upon interstate commerce is the test of jurisdiction, and unfair labor practices fall within the scope of the Act by reason of the fact that long and painful experience teaches that in the generality of cases, if not in particular in- stances, they lead to such strife . . . But the purpose of the Act is remedial rather than punitive, and the court has recog- nized the protective power of Congress to "foresee" and "fore- stall." a In the instant case it is sufficient that prior to the issuance of its order the Board found that the respondent had engaged in unfair labor practices and that such unfair labor practices, having occurred in connection with the business operations of the respondent, had a close, intimate, and substantial relation to trade, traffic, and coln- 297 F. (2d ) 331, 334 (C. C. A 6th) 8 See also National Labor Relations Board v. Fruehauf Trailer Company et al, 301 U. S 49, 56, in which case the respondent contended that "the testimony negatived any showing of labor difficulties and that since its first operations there had not been a strike at the plant which hampered its operations." The Court held such contention of no merit in determining the validity of the Board's order. National Labor Relations Board v. Jones & Laughlin Steel Corporation , 301 U. S. 1. THE BOSS MANUFACTURING COMPANY ET AL. 437 merce, and had led and tended to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Moreover, the record is clear that the respondent has persisted in its unfair labor practices by reason of its failure to comply with the Board's order, nor does the present proceeding operate to stay such compliance 4 As shown below, the respondent has refused to bar- gain collectively with the Union and has failed to reinstate the em- ployees whom it had discharged because of their union activities. The delays incident to the administration of the Act cannot vest a prescriptive right-in the respondent to continue in its unfair labor practices. We conclude that the respondent's activities constituting unfair labor practices tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. II. The situation in regard to the jobs of the four persons whom respondent is ordered to reinstate, the effect of such reinstatement upon other employees of the respondent, and the situation with respect to those persons In its decision of August 27, 1937, the Board found that Marion McCullough, Jerry Barry, Grace Bremmer, and Jess Harlan, all employed in the respondent's leather-cutting department, had been discharged because of their union activities. In the section of its decision designated "Remedy," the Board stated that the four named employees were entitled to reinstatement to their former positions with back pay. The Board's order provided, inter alia, that the respondent should : a. Offer to Grace Bremmer, Jerry Barry, Marion McCullough, and Jess Harlan immediate and full reinstatement, respectively, to their former positions without prejudice to their seniority, or other rights and privileges; * d. Make whole Grace Bremmer, Marion McCullough, and Jerry Barry for any loss of pay they may have suffered by reason of their discharge by payment to each of them, respec- tively, ofsa sum, of money equal to that which each of them, re- spectively, would normally have earned as wages from the date of their discharge to the date of the offer of reinstatement pur- suant to this order, less any amount earned by each of them, respectively, during such period; e. Make whole Jess Harlan for any loss of pay he has suffered by reason of his discharge, by payment to him of a sum of money equal to that which he would normally have earned as wages See Section 10 (g) of the Act. 104275-39-col xi--29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the periods from July 20, 1935, the date of his discharge, to June 22, 1936, and from the date of this decision to the time of such offer of reinstatement, less any amount he has earned during such period; At no time has the respondent offered reinstatment or back pay to any of these four employees. The record shows, and we so find, that the respondent's production operations have been curtailed and that the reinstatement of these four employees would require the lay- off or discharge of four other employees. On the basis of these facts, the respondent urges that it should be relieved from complying with" the paragraphs of the Board's order quoted above. It has been held, however, that a decline in the respondent's busi- ness does not preclude compliance with the Board's order. In the case of National Labor Relations Board v. Remington Rand, the Circuit Court of Appeals for the Second Circuit, in a per curiam decision on motions dealing with the enforcement of a Board order requiring, inter alia, the reinstatement of certain employees, said : apparently it [the respondent] believes that the substitutions [of strikers to be reinstated for employees hired since the strike]' were not peremptorily required, in the sense that they must be carried out regardless of their effect upon the company's business- That is a mistake; the order required the substitutions uncondi- tionally, regardless as much of their effect upon- the company's business as of the hardship entailed upon those who must be' displaced * * * If this involves disturbance of the com- pany's business, it is no doubt unfortunate; but, having chosen to challenge the law, it must abide the loss. Similarly in the instant ease, the readjustments required to effect the reinstatement, even if they work some hardship upon the respondent or upon certain employees, are immaterial in determining whether reinstatement should be ordered.6 We shall, however, recommend a clarification of our order by di- recting the manner in which the reinstatement of the employees shall be effected. New employees hired to fill the positions left vacant by reason of the discharge of these four employees or to,fill substan- tially equivalent positions, shall be, discharged if necessary to afford reinstatement to the four employees. If, after the reinstatement of' the four discriminatorily discharged employees, there is -not sufficient employment immediately available for all the employees, including- those reinstated, all available positions should be distributed among the employees in accordance with the respondent's usual method of 6 97 F. (2d ) 195, 196 (C. C. A. 2d). See also National Labor Relations Board v. Mackay Radio h Telegraph Company, 304 U. S. 333. 6Cf. also Matter of Republic Steel Corporation and Steel Workers Organizing Com- mittee, 9 N. L R. B. 219; Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1139, 10 N L. R. B. 33. THE BOSS MANUFACTURING COMPANY ET AL. 439 reducing its force, without discrimination against any employee be- cause of his union affiliation or activities, following a system of sen- iority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no em- ployment is immediately available, should be placed upon a prefer- ential list prepared in accordance with the principles set forth in the previous sentence, and should thereafter, in accordance with such list, be offered employment in their former or in substantially equiva- lent positions, as such employment becomes available and before other persons are hired for such work. This would effectuate the pur- poses and policies of the Act and would work a minimum of hardship on the respondent and on employees who might have to be displaced. The back-pay provision of the Board's order anticipates the contin- gency that work might not have been available for all the discharged employees for the entire period from the time of their discharge by ordering "payment to each of them, respectively, of a sum of money equal to that which each of them, respectively, would normally have earned as wages from the date of their discharge to the date of the offer of reinstatement pursuant to this order, less any amount earned by each of them, respectively, during such period." [Italics sup- plied.] 7 We shall. recommend to the Court that the Board's order of August 27, 1937, be modified to set forth the above in detail. We find from the evidence that Bremmer married after her dis- charge and that the respondent has a policy against employing mar- ried women. The respondent accordingly contends that the rein- statement of Bremmer would be in violation of the policy. The respondent's policy, however, does not require the discharge of an unmarried girl who marries while working at the plant. If Bremmer had not been discharged because of her union activities, then, the mere fact that she married would not have caused her discharge. It is therefore apparent that Bremmer's present marital status cannot act as a bar to her reinstatement. Harlan last worked as a janitor in the leather-cutting department. The record in this proceeding shows that after his discharge his work was taken over by an older employee in the same department, and no new man was hired to take his place. In the Board's decision of August 27, 1937, it is pointed out that Harlan had been trans- ferred from the sewing room 6 weeks prior to his lay-off, and a new employee had been hired to take his job there. The respondent has shown no reason why the man hired to do Harlan's former work in. the sewing room could not be discharged or placed on a preferential list and Harlan reinstated to his former position, if his job in the: leather-cutting department no longer exists. * The order in the case of Harlan varies slightly , but it contains a similar provision. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent maintains that McCullough now has substantially equivalent employment, and that therefore it need not offer him re- instatement. The evidence does not support this contention. Mc- Cullough, while steadily employed at present, has had to move to Racine, Wisconsin, and has to commute to Milwaukee, Wisconsin, where he works. Employment which necessitated McCullough's re- moval from familiar surroundings and burdensome commutation to work cannot be termed "substantially equivalent." We find that his present employment does not constitute substantially equivalent em- ployment. We therefore need not pass upon the effect of our order had McCullough obtained substantially equivalent employment. III. The question as to who are the representatives of the employees of the respondent for purposes of collective bargaining at the pres- ent time and at the time of the entry of the Board's order According to the uncontroverted testimony of Thomas H. Blair, the respondent's vice president in charge of production, 440 persons were actually working in the respondent's plant in May 1936, the date of the previous hearing; in August 1937 there were 451. The respondent did not adduce testimony as to the exact number of per- sons employed in May 1938, but showed that in March 1938 there were 409, 23 of whom were laid off in April. The record shows that it is the policy of the respondent to retain on its pay roll all em- ployees, so long as there is a reasonable prospect of future employ- ment for those temporarily laid off. Accordingly, we find that in August 1937 the respondent employed 451 persons, and in May 1938, approximately 400 persons. The Union's recording secretary, Anton White, testified that on May 1, 1936, the Union had 269 members in the plant. He further testified that the only change in the membership status from that date to August 27, 1937, was the transfer of 3 members to other locals of the Union, leaving 266 members on the latter date. There were no additions to the membership until January 1, 1938. From that time to the date of this hearing, some 25 new members were added, bringing the Union's total to approximately 291. According to White, at no time were there any resignations or expulsions from the Union, and at no time had the Union dropped any persons from its membership rolls or denied members admission to union meetings because of delinquency in payment of dues. His testimony was not controverted. The respondent sought to subpena certain records of the Union to prove that a majority of the persons claimed as members were not dues-paying members and did not attend union meetings. The Board authorized the issuance of subpenas to the extent of requiring the Union to produce its membership records, application cards, and cards THE BOSS MANUFACTURING COMPANY ET AL. 441 of authorization, but denied it as to books of account, bylaws, and minutes of meetings. At the most, these records requested by the respondent could prove no more than that some members had become inactive in the Union. Such evidence, not accompanied by proof that the defection in the ranks of the Union was due to some cause other than the respondent's unfair labor practices, would not operate to negative a finding that prior to the respondent's commission of the unfair labor practices the Union represented a majority of the em- ployees in the unit. As we have had occasion to state : "The unfair labor practices of the respondent cannot operate to change the bar- gaining representative previously selected by the untrammeled will of the majority."" No prejudicial error was committed, therefore, in denying the re- spondent's requests to subpena the union books of account, bylaws, and minutes of meetings, and in other ways to prove delinquency in dues payment and non-attendance at meetings. We find that on August 27, 1937, and in May 1938, the Union was the duly designated representative of a majority of employees in the appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for pur- poses of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. IV. The entire question of the status of employees of the respondent on strike August 8, 1935, including who are to be regarded as such employees In its decision of August 27, 1937, the Board found that the re- spondent's production workers struck on August 8, 1935, owing to the respondent's refusal to bargain collectively with its employees and its refusal to reinstate the employees discharged because of their union activities. In the section of its decision designated "Remedy," the Board stated that the respondent was under a duty to reinstate the strikers to their former positions and to restore the status quo which existed prior to its commission of the unlawful acts. The Board's order provided, inter alia, that the respondent should : 4. b. Upon application, offer to those employees who were on strike on August 8, 1935, and who have not obtained regular and substantially equivalent employment elsewhere, immediate and full reinstatement to their former positions, without prejudice to their seniority or other rights or privileges; and place those for 8 Matter of Bradford Dyeing Association ( U. S. A.) (a Corporation ) and Textile Workers' Organizing Committee of the 0. I. 0., 4 N L. R. B. 604, 616, 617. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom employment is not available on a preferred list to be offered employment as it arises on the basis of seniority by classi- fications before any other persons are hired; c. Make whole all employees who were on strike on August 8, 1935, for any losses they may suffer by reason of any refusal of their application for reinstatement in accordance with paragraph 4b herein, by payment to each of them, respectively, of a sum equal to that which each of them would normally have earned as wages during the period from the date of any such refusal of their application to the date of reinstatement, less the amount, if any, which each, respectively, earned during said period; The evidence indicates, and we so find, that all employees of the respondent who were on strike on August 8, 1935, with the exception of McCullough, Barry, Bremmer, and Harlan, have been reinstated or have been offered reinstatement bye the respondent. There is no evidence, and we are therefore unable to find, that the reinstatement was effected without prejudice to the seniority or other rights or privileges of those reinstated. Since the respondent made no show- ing of full compliance with this portion of the order of August 27, 1937, it is apparent that the respondent's objections to the propriety of the order quoted above are without merit. V. All other facts and circumstances that have arisen since May 1, 1936, which are pertinent in determining whether the enforcement of the Board's order is proper wader the provisions of the Act In its decision of August 27, 1937, the Board found that "on Sep- tember 8, 1935, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of its employees in respect to rates of pay, wages, hours of employment and other conditions of employment." The Board's order provided, inter alia, that the respondent should : 2. Cease and desist from refusing to bargain collectively with International Glove Workers' Union of America, Local No. 85, as the exclusive representative of all its production employees, ex- cepting supervisory and clerical employees. s • • ,s s 4. Take the following affirmative action which the Board finds will effectuate the policies of the Act : # # # t i (f) Upon request, bargain collectively with International Glove Workers' Union of America, Local No. 85, as the exclusive representative of all its production employees, excepting super- THE BOSS MANUFACTURING COMPANY ET AL. 443 visory and clerical employees, for the purpose of collective bar- gaining in respect to rates of pay, wages, hours of employment and other conditions of employment; The respondent introduced evidence of meetings with union represent- atives after May 1, 1936, apparently attempting to prove that it had bargained with the Union and that therefore the Board's order re- quiring such bargaining is now unnecessary. This evidence shows that on five separate occasions, from September 11, 1937, to April 8, 1938, when the Union requested meetings, the respondent's represent- atives met and conferred with the representatives of the Union. At these meetings the parties discussed wages, details of pay, distribu- tion of the work, and other working conditions. At one of the con- ferences the Union's representatives requested that the respondent comply with the Board's decision of August 27, 1937, which ordered the respondent to cease and desist from refusing to bargain collec- tively with the Union as the exclusive representative of its employees in the appropriate unit : A. [Blair, the respondent's vice president in charge of produc- tion] . . . As I recall it, at one of those meetings the committee came in stating that they had received a letter from the National Labor Relations Board, or from the Regional Director, I don't recall just the term used, and they inquired as to what we pro- posed to do about it. Q. About the decision? A. Yes. We advised them that the matter would be in the 'hands of the"Court. That, as I recall it, was the only discussion on that point. The evidence does not sustain the contention that the respondent did in fact bargain with the Union. We have repeatedly held that merely to meet with union representatives and to discuss terms does not satisfy the requirements of the Act if recognition of the Union as the exclusive bargaining agency is withheld.9 When the union committee was told in response to its inquiry as to whether the re- spondent proposed to comply with the Board's order, that the matter was in the hands of the Court, the respondent in effect made manifest to the Union that it would refuse to bargain collectively with it as the exclusive representative of its employees in the appropriate unit until the Court had affirmed the Board's order. Further meetings, therefore, with no announced change in the attitude of the respond- ent, did not constitute collective bargaining. See McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel , and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33; Matter of The Griswold Manu- facturing Company and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge No. 1197, 6. N. L. R. B. 298; Matter of McNeely d Price Company and National Leather Workers Association, Local No. 30, of the C. 1. 0., 6 N. L. R. B. 800. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, even if it can be shown that the respondent discon- tinued its refusal, upon request, to bargain collectively with the Union within the meaning of the Act, the propriety of the Board's order to bar the resumption of this unfair labor practice is clear.10 We find that the respondent has refused upon request to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit and has failed to introduce any evidence showing the impropriety of the Board's order requiring it to cease and desist therefrom. RECOMMENDATION Upon the basis of the supplemental findings of fact, and pursuant to Section 10 (e) of the National Labor Relations Act, the National Labor Relations Board hereby recommends to the United States Circuit Court of Appeals for the Seventh Circuit that the order of the Board, issued by the Board on August 27, 1937, be enforced as so issued, but modified as follows : 1. By inserting in paragraph 4 (a), after the word "former," the words "or substantially equivalent," and by adding to paragraph 4 (a) the words "If, after the reinstatement, there is not sufficient employment immediately available for all the employees, including those to be reinstated, all available positions shall be distributed among the employees in accordance with the respondent' s usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accord- ance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employ- ment becomes available and before other persons are hired for such work." 2. By inserting in paragraphs 4 (d) and 4 (e), respectively, after the words "offer of reinstatement," the words "or placement upon a preferential list." 11 10 See Consolidated Edison Company of New York, Inc., and its Affiliated Companies, et at v. National Labor Relations Board, et at , 59 S. Ct. 206; Federal Trade Commission v. Goodyear Tire & Rubber Co, 304 U. S. 257, 260. ' The Board's Order, as modified, will read as follows : Upon the basis of the findings of fact and conclusions of law and pursuant to Section 10, subdivision (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Boss Manufactur- ing Company, and its officers , agents, successors , and assigns shall : 1. Cease and desist from interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization , to form, join, or assist labor THE BOSS MANUFACTURING COMPANY ET AL. 445 organizations , to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act ; 2. Cease and desist from refusing to bargain collectively with International Glove Workers' Union of America, Local No 85, as the exclusive representative of all its production employees, excepting supervisory and clerical employees : 3. Cease and desist from discouraging membership in Glove Workers' Union of America, Local No. 85, or any other labor organization of its employees, by discharging and refusing to reinstate employees, or otherwise discriminating in regard to hire and tenure of employment or any term or condition of employment, or by threats of such discrimination 4 Take the following affirmative action which the Board finds will effectuate the policies of the Act : a. Offer to Grace Bremmer, Jerry Barry, Marion McCullough, and Jess Harlan, immediate and full reinstatement, respectively, to their former or substantially equivalent positions without prejudice to their seniority, or other rights and privileges If, after the reinstatement, there is not sufficient employment im- mediately available for all the employees including those to be reinstated, all avail- able positions shall be distributed among the employees in accordance with the respondent's usual method of reducing its force without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work; b. Upon application, offer to those employees who were on strike on August 8, 1935, and who have not obtained regular and substantially equivalent employment elsewhere, immediate and full reinstatement to their former positions, without prejudice to their seniority or other rights or privileges ; and place those for whom employment is not available on a preferred list to be offered employment as it arises on the basis of seniority by classifications before any other persons are hired ; c. Make whole all employees who were on strike on August 8, 1935, for any losses they may suffer by reason of any refusal of their application for reinstate- ment in accordance with paragraph 4b herein, by payment to each of them, respectively, of a sum equal to that which each of them would normally have earned as wages during the period from the date of any such refusal of their application to the date of reinstatement, less the amount, if any, which each, respectively, earned during said period; d. Make whole Grace Bremmer, Marion McCullough, and Jerry Barry for any loss of pay they have suffered by reason of their discharge by payment to each of them, respectively, of a sum of money equal to that which each of them, respectively, would normally have earned as wages from the date of their dis- charge to the date of the offer of reinstatement or placement upon a preferential list pursuant to this order , less any amount earned by each of them, respectively, during such period ; e. Make whole Jess Harlan for any loss of pay he has suffered by reason of his discharge, by payment to him of a sum of money equal to that which he normally would have earned as wages during the periods from July 20, 1935, the date of his discharge, to June 22, 1936, and from the date of this decision to the time of such offer of reinstatement or placement upon a preferential list, less any amount he has earned during such period ; f. Upon request, bargain collectively with International Glove Workers' Union of America, Local No. 85, as the exclusive representative of all its production employees, excepting supervisory and clerical employees, for the purpose of collec- tive bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment ; g. Post notices at a conspicuous place on each floor of the respondent's Kewanee plant stating: (1) that the respondent will cease and desist in the manner afore- said; and (2) that said notices will remain posted for at least thirty ( 30) con- secutive days from the date of posting; h. Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this order what steps the respondent has taken to comply herewith.