Stewart Die Casting Corporation

In the Matter of STEWART DIE CASTING CORPORATION and UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 298 In the Matter of STEWART DIE CASTING CORPORATION and BERNICE ANDREWS, ET AL. Cases Nos. C-577 and C569, respectively.-Decided August 22,19-39 Metal Casting and Tool Manufacturing Industry-Interference. Restraint, and Coercion-Discrimination: refusal to reinstate, following strike ; new employees hired after commission of unfair labor practices ; discharges ; lay- offs ; charges of, dismissed as to several employees-Testi fying Under Act: charges of discrimination for, dismissed-Reinstatement: ordered, of strikers named in complaint and of all other strikers who have not since been rein- stated ; displacement of employees newly hired during strike ; preferential list- Back Pay: awarded from date when strike concluded and strikers made application, as to employees named in complaint ; ordered to strikers not named in complaint if not reinstated or placed upon preferential list within five days after application-Unit Appropriate for Collective Bargaining: hourly and piece-rate production and maintenance employees, excluding supervisory and office employees, draftsmen, and watchmen-Representatives: proof of choice: comparison of list of union members with pay roll-Collective Bargaining: refusal to recognize and bargain with union regarding demands during strike; refusal to embody understandings, if reached, in signed agreement; affirma- tive order to bargain with the union and to embody understandings in written agreement-Strike: prolonged by employer's refusal to bargain-Strike Settle- ment: no effect on rights of strikers to rein statement-Piolence: strikers not discharged or refused reinstatement therefor ; held without effect on their rights. Mr. Jack G. Evans, for the Board. Winston, Strawn & Shaw, by Mr. F. H. Towner and Mr. Thomas S. Tyler, of Chicago, Ill., for the respondent. Owens & Owens, by Mr. Thomas L. Owens and Mr. Philip F. Icke, of Chicago, Ill., for the U. A. W. Mr. Bliss Daffan, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Auto- mobile Workers of America, Local 298, herein called the U. A. W., the National Labor Relations Board, herein called the Board, by the 14 N. L. It. B.. No. 70. 872 STEWART DIE CASTING CORPORATION 873 Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated January 4, 1938, against Stewart Die Casting Corporation, Chicago, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in- unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the- National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and upon the U. A. W. With respect to the unfair labor practices, the complaint, as amended, alleged in substance that on or about March 22, April 9, and April 1.6, 1937, and at other times, the respondent refused to bargain collectively with the U. A. W. although that organization represented a majority of the employees within an appropriate unit; that such refusal caused the respondent's employees to participate in a strike; that on or about June 24, 1937, and at all times thereafter, the respondent refused to reinstate to employment certain of its striking employees ; that on certain dates alleged therein the respondent discharged certain named employees; and that the refusal to reinstate and the discharge of all of said employees was because they had joined and assisted the U. A. W..and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. The complaint also alleged in substance that the respondent made derogatory statements to the employees concerning the U. A. W. and urged and warned its employees against joining or retaining membership in that organiza- tion and engaging in concerted activity. On January 17, 1938, the respondent filed with the Regional Director a motion to dismiss the complaint, and on January 20, 1938, pursuant to an extension of time granted by the Regional Director, it filed an answer denying all the material allegations of the complaint and affirmatively setting forth that the charges filed herein were insufficient under the law and the regulations of the Board to forms a legal basis for the issuance of 'the complaint; and that the complaint is indefinite and uncertain and legally insufficient to advise the respondent of the violations of law of which it is charged. Pursuant to notice and an order of continuance, a hearing was held in Chicago, Illinois, from January 20 through February 9, 1.938, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board, the respondent, and the U. A. W. were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At-the com- mencement of the hearing the respondent's counsel renewed its 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion. to dismiss the complaint. The Trial Examiner reserved ruling on this motion until the completion of the evidence. During the course of the hearing numerous oral amendments to the charge and complaint were allowed by the Trial Examiner without objec- tion from any of the parties. It was stipulated between the parties that the amendments so allowed would be reduced to writing and incorporated in the record as a part of the complaint at the conclusion of the Board's case. When the Board concluded its case a motion presented on behalf of the respondent to dismiss the complaint was denied by the Trial Examiner. In accordance with the above- mentioned stipulation a written memorandum of the amendments to the charge and complaint allowed by the Trial Examiner was made a part of the record. At the conclusion of the hearing, counsel for the Board moved to amend the complaint to conform to the proof. A motion was also presented by counsel for the Board to take the depositions of four employees named in the complaint who were unable to appear and testify at the hearing. Both of these motions were granted by the Trial Examiner. At the conclusion of the hearing, the respondent moved : (1) to dismiss the complaint as to certain employees named therein who had not testified at the hearing, and (2) to dismiss the complaint because none of the charges was sustained by credible evi- dence. The respondent also renewed the written motion to dismiss the complaint presented at the beginning of the hearing. The Trial Examiner dismissed the complaint as to those employees who did not appear and testify, except as to the four employees whose depositions were to be taken ; he denied the two other motions. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 19, 1938, the Trial Examiner served upon the parties his Intermediate Report finding that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint. He accordingly recommended that the respondent cease and desist from its unfair labor practices; that it bargain collectively with the U. A. W. as the exclusive representative of the employees in the production and maintenance departments ; and that it offer rein= statement with back pay to all the employees named in the com- plaint, with the exception of those whose cases were dismissed at the conclusion of the hearing and one employee whom he found was not. discharged because of his union activity. Since the testimony by, deposition of the four witnesses who were unable to appear and STEWART DIE CASTING CORPORATION 875 testify at the hearing had not been received at the time of the issuance of the Intermediate Report, the Trial Examiner provided therein that the record would remain open for 60 days to receive their testimony, and that a supplemental report would issue upon receipt and consideration of the testimony contained in said depositions. Thereafter, the deposition of Fred Johnson was taken on March 12, 1938, at Chicago, Illinois, and those of Edward Cyza and Silas E. Finnestad were taken in the same city on March 19, 1938. The Board, the respondent, and the U. A. W. were repre- sented by counsel at the taking of the depositions. On May 4, 1938, the respondent filed exceptions to the Inter- mediate Report and to various rulings of the Trial Examiner. Thereafter, upon charges and amended charges duly filed by the U. A. W., the Board, by the Regional Director for the Thirteenth Region '(Chicago, Illinois), issued its complaint dated June 16, 1938, against the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act. Copies of the complaint and accompany- ing notice of hearing were duly served upon the respondent and upon the U. A. W. With respect to the unfair labor practices the complaint, as amended, alleged in substance that from February 1 to 21, 1938, the respondent reduced the days of employment per week of Bernice Andrews, and on February 21, 1938, discharged her; and in May 1938 discharged John Adrian, Charles Anusewicz, and Con Buller, for the reason that they and each of them had joined and assisted the U. A. W., engaged in concerted activities, and had given testimony under the Act. On June 20, 1938, acting pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued an order consolidating the two proceed- ings herein for all purposes. On June 21, 1938, the respondent filed its answer denying all the material allegations of the complaint -and praying for its dismissal on the basis that the charges and complaint were insufficient under the law and the rules and regulations of the Board. Pursuant to notice, a hearing was held in Chicago, Illinois, from June 21 through 24, 1938, before Herbert Wenzel, the Trial Exam- iner:duly designated.by the Board. The Board, the respondent, and the U. A. W. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was af- forded all parties. At the close of the Board's case, and again at the conclusion of the hearing, the respondent's attorney presented a mo- 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to dismiss the complaint. The Trial Examiner reserved ruling on this motion. During the course of the hearing the Trial Ex- aminer made several rulings on motions and on objections to the admission of evidence. The Board has. reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 31, 1938, the Trial Examiner served his Intermediate Report upon the parties, in which he denied the motion to dismiss, and found that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint.' He accordingly recommended that' the employees named in the complaint be rein- stated with back pay. On September 9, 1938, the respondent filed exceptions to the Intermediate Report and to various rulings of the Trial Examiner. Pursuant to notice, oral argument was had on October 18, 1938, before the Board in Washington, D. C., in the consolidated proceed- ings. The respondent and the U. A. W. were represented by counsel and participated in the argument. On November 19, 1938, Trial Examiner Kent issued his Supple- mental Report covering the three employees who had testified by dep- osition. He dismissed the complaint as to one employee whose deposi- tion had not been obtained, and recommended that the respond- ent offer reinstatement with back pay to the other three employees whom he found to have been discriminatorily refused employment after June 24, 1937. Thereafter, the respondent filed exceptions to the Supplemental Report and to various rulings of the Trial Examiner. Pursuant to notice, additional oral argument was had before the Board in Wash- ington, D. C., on June 29, 1939, in the consolidated proceedings. The respondent and the U. A. W. were represented by counsel and participated in the argument. The Board has considered the excep- tions of the respondent to the findings, conclusions, recommendations, and rulings of the Trial Examiners in the two consolidated proceed- ings, but, save for those exceptions which are consistent with the find- ings, conclusions, and order set forth below, finds them to be with- out merit. In order to distinguish when necessary between the two proceed- ings which have been consolidated herein, we will hereafter refer to proceedings under the first complaint as "Case No. C-577," and the proceedings under the second complaint as "Case No. C-869." 1 Reference is made to the complaint issued on June 16, 1938. STEWART DIE CASTING CORPORATION 877 Upon the entire record in the case, the Board makes the following : FINDING'S OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is,a corporation organized under the laws of the State of Delaware and maintains its principal office and place of business in Chicago, Illinois. It is engaged in the production, sale, and distribution of metal castings, tools, and similar products. Raw materials used in the respondent's operations during 1937, amounting to 7,146,358 pounds in weight and $506,803.22 in value, were trans- ported to the respondent's plant in Chicago from the States of Idaho, Montana, Tennessee, Ohio, Michigan, and Illinois. The total value of the sales made by the respondent in 1937 was approximately $2,000,000, over 50 per cent of which represented sales of goods shipped outside the State of Illinois. II. THE ORGANIZATION INVOLVED United Automobile Workers of America, Local 298, is a labor or- ganization affiliated with the Committee for Industrial Organization. It admits to membership all hourly and piece-rate production and maintenance employees of the respondent, excluding supervisory and office employees, draftsmen, engineers, and watchmen. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint in Case No. C-577 alleges that the appropriate unit consists of all the hourly and piece-rate production and maintenance employees of the respondent, excluding supervisory and office em- ployees, draftsmen, and watchmen. In its answer the respondent specifically denies these allegations but does not assert that any other unit is a proper one. At the hearing the respondent made no con- tention as to the appropriate unit and offered no evidence that the unit alleged in the complaint and advocated by the U. A. W. is not appropriate. We see no reason for departing from this unit. We find that the hourly and piece-rate production and maintenance employees of the respondent, excluding supervisory and office em- ployees, draftsmen, and watchmen, constitute a unit appropriate for the purposes of collective bargaining and that such a unit insures to these employees the full benefit of their right to self-organization 878 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to collective bargaining and otherwise effectuates the polices of the Act. 2. Representation by the U. A. W. of the majority in the appropriate unit The complaint in Case No. C-577 alleges that on or about March 22, 1937, a majority of the respondent's employees in the unit here- tofore found to be appropriate had designated the U. A. W. as their collective bargaining representative, and that on said date and again on April 9 and 16, 1937, and at other times, the respondent refused to bargain collectively with the U. A. W. as such representative. At the hearing an exhibit showing membership in the U. A. W., pre- pared from a comparison of the membership cards and records of the U. A. W. with the original employment records of the respond- ent, was introduced in evidence over the objection of the respondent's counsel. Because of the objection of the respondent's counsel to the introduction of the exhibit, the U. A. W. tendered its original appli- cation cards and dues receipts, and the respondent 's counsel was afforded the-opportunity of examining them.2 Thereafter, no evi- dence was offered by the respondent challenging the authenticity of the exhibit, the U. A. W.'s claim of membership evidenced thereby, or the genuineness of the signatures on the cards. Under these cir- cumstances the Trial Examiner committed no error in permitting the introduction of the exhibit in evidence. The exhibit shows that 591 of a. total of approximately 685 em- ployees in the appropriate unit were members of the U. A. W. Of this number, 574 became members before March 22, 1937, and 17 joined between that date and March 30, 1937. The respondent made no attempt at the hearing to refute this proof of membership in the U. A. W. among its employees. We find that on March 22, 1937, and at all times thereafter, the U. A. W. had been designated and selected by a majority of the respondent's employees in the appropriate unit as their representa- tive for the purposes of collective bargaining. 2 After having been given permission to examine the U. A. W. membership cards and dues receipts by the Trial Examiner , the respondent 's counsel made further objection to the introduction of the exhibit because the information regarding U. A. W. member- ship of some of the employees was obtained from certain affidavits in the possession of the Regional Director of the Board. The Trial Examiner refused to permit the respondent's counsel to examine these affidavits because they contained information pertinent to the Board 's case. . However, we do not think it was prejudicial error for the Trial Examiner to refuse the respondent access to the affidavits , since most of the employees whose membership was thus established testified at the hearing , thereby affording the respondent an opportunity to cross -examine them with reference to their membership in the U. A. W. Eliminating from consideration the employees whose mem- bership was established by information contained in the affidavits and who did not testify at the hearing , it appears that the U. A. W. would still have a substantial majority. STEWART DIE CASTING CORPORATION 879 3. The refusal to bargain a. The negotiations On March 12, 1937, Irving Brown, a representative of the U. A. W., began organization work among the respondent's employees working on the day shift. On or about March 1, 1937, the wages of the employees working in the inspection department of the respondent's plant were changed from a piece-rate basis to an hourly basis. This, coupled with the fact that they were working as much as 12 hours a night, caused dis- satisfaction among them, and at 1 a. in. on March 16, 1937, the employees in this department engaged in a sit-down strike. They were joined by employees in the cleaning department and a few from the die-casting department, making a total of approximately 150 employees engaged in the sit-down strike. Shortly after the strike began, the employees participating therein convened in the washroom of the plant and formulated separate demands for the employees in each of the various departments concerning wages and hours. Thereafter, these demands were reduced to writing and sub- mitted to A. C. Snyder, the respondent's chief inspector, during the course of the morning of March 16, 1937. About 9 a. in. on the morning of March 16, 1937, a number of the respondent's officials came into the washroom, and 'Goff, the re- spondent's plant manager, instructed the employees assembled there that they would be given 15 minutes to leave the plant, and if they did not leave within the time prescribed they would be "considered through," given their time, and evicted from the plant. One of the employees present questioned Goff as to whether or not he would hear their demands, and he replied that he would not. The strikers then continued their occupation of the plant until 3 o'clock on the morning of March 17, 1937, when the Chicago police entered and evicted them. No damage was done to the respondent's plant during its occupation by these striking employees and they left peacefully when requested to do so by the police. On the morning of March 16, 1937, when the employees on the day shift came to work, they found the doors of the plant locked and guarded and were advised by the respondent's representatives that the plant would be closed for a few days.3 During the course of the day the U. A. W. enlisted members in a tavern across the street from the respondent's plant. Brown called Sidney A. Hel- lings, president and general manager of the respondent, on the tele- phone in an effort to arrange a conference with him. He testified s The plant remained closed until March 25, 1937. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Hellings informed him that he would have nothing to do with the Committee for Industrial Organization. At the hearing Hellings denied that he ever had a telephone conversation with Brown. Brown testified further that he communicated with Louis J. Disser, Field Examiner for the Board, on the same day, and that Disser assured him that he would endeavor to arrange a conference between Hellings and the representatives of the U. A. W. Disser then met with Hellings and his attorney on March 17, 1937, and Hellings agreed to meet with a committee of the employees, but, according to the testimony of Brown, objected to the presence of a representative of the U. A. W. at the conference between the parties. However, it was finally agreed that the respondent and the employees would each be represented by an attorney at a conference to be held on March 22, 1937. Hellings denied that he raised any objection to meeting with representatives of the U. A. W. at any time. Undis: puted evidence shows, however, that Disser arranged this confer- ence, that Brown did not attend, and that the employees were repre- sented by an attorney. We accept the testimony of Brown that Hellings objected to dealing with the U. A. W. On March 22, 1937, the parties met in accordance with the above- described arrangements. The U. A. W. was represented by William Vihon, an attorney, and a committee of four employees ; the respond= ent was represented by Hellings and his attorney, Towner. Disser was also present. Anderson, one of the employees, opened the con- ference by stating that the employees wanted the respondent to rec- ognize the U. A. W. as their representative for the purposes of collective bargaining. Towner questioned the employees as to.what was meant by union recognition and was advised that the employees wanted the U. A. W. to represent them as their collective bargaining agent. Hellings then stated that he would take the matter under advisement and the meeting adjourned. At the hearing two of the employees present at this meeting testified that during the course of the conversation between the parties the statement was made by one of the employees that the U. A. W. represented a majority of the employees. Hellings, while admitting that the testimony of the Board's witnesses as to what had occurred at this meeting was sub- stantially correct, testified that he did not recall any statement being made that the majority of the respondent's employees were repre- sented by the U. A. W. Hellings' uncertainty on this point, con- sidered in connection with the positive testimony of the Board's witnesses and the fact that the respondent did not question the au- thority of the U. A. W. to make the demand for recognition as the bargaining representative of the employees, clearly indicates that such a representation was made, and we so find. STEWART DIE CASTING CORPORATION 881 On March 23, 1937, the day after this conference, the respondent sent the following letter in mimeographed form to all of its employees : TO ALL MEN WHO WERE ON THE PAYROLL OF THE STEWART DIE CASTING CORPORATION MARCH 15, 1937 Let's get this straight: When 75 of the 694 men and women employed here made it necessary to close this plant by their attempt to seize it, I did not know why.. Did you? When I was informed by the Labor Board that charges had been preferred with it against the company , I wondered what they could be, since the company itself had not received any complaints of any kind from any source . Accordingly, a meeting was arranged. This meeting occurred Wednesday , March 22nd. Messrs. R. J. Anderson, S. Fleck, Cy. Finnestad and W. J. Litza represented you. As your spokesman, Mr. Anderson made one and only one demand ; namely, that we bargain with and recognize the C. I. O. as bargaining agency for its members in the plant. That was the sole demand . Today, I am replying to the committee as follows : "If your only reason for making it necessary to close the die casting plant, throwing 694 people out of work , is to make this a C. I. O. plant, then I think you are in a poor business. "If, on the other hand, you or your associates had any definite complaint against the working conditions or treatment, why didn't you so advise the management , without seizing its plant? It is and has been the aim of this management to see that every employee gets a square deal . The management does not claim that it never makes mistakes. It does claim that it demonstrated its willingness to be fair. "So far as the presentation of any complaint is concerned, it makes no difference to me now or in the past whether they are presented by individuals or groups of employees . They will all be treated with equal courtesy and attention. "Do not be led astray by any claim that we can be bullied or coerced by any labor organization-or that we are willing to enter into a horse trading contract with any group who claim the ability to deliver free workmen at a price. "You may have been told that we are making a great deal of money out of your labor . Such is not the case. For two years, this company has• lost money . Yet, in. spite of this, the corpora- tion paid wages on a par with those of the industry, gave you 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a week's-vacation with pay and an extra week's pay at Xmas time. "As a matter of fact, this was only possible because the cor- poration of which we are a part was, as a whole, prosperous and we shared in the prosperity to which we did not contribute. "Last week a general increase of approximately 10% was made at the main plant and our pay rates have also been adjusted to conform. "I repeat to you-This management is not ashamed, but proud of its attitude toward its men. If there are inequalities or in- justices, the management wants to know about them. But it is not going to be bullied, for that is not justice. "Think well of what you are doing ! "The plant has been closed over a week-by your actions. "A payroll of $20,000 is lost to you each week-to your families and wives-to your stores and to your community. "Men have been beaten and women insulted. ".Think well what you are doing ! "Customers are removing their dies to other shops. Competi- tors are taking our business so that were we to reopen today, we could only employ less than half of you. "Think well ! You are free American citizens. If you wish to sell your freedom of action-to be governed by a labor group in some far off city who bargains your services, or to be swayed by some young agitators who would remake our country, that is your business. "But think well ! Are you helping yourselves, your wives and your families, or are you with your hard-earned dollars helping a selfish group of so-called labor leaders to gain power? "We can take no further action until we have your reply." Sincerely, S. A. HELLINGS, President. S. A. HELLINGS. H. H. The parties met again on April 9, 1937. Brown was present at this conference, as well as Disser, Ralph M. Shaw, and John D. Black, attorneys for the respondent, and Hellings. Disser asked Anderson, one of the employees present, how many men the U. A. W. repre- sented, and Anderson replied that the U. A. W. represented over 90 per cent of the employees.. Hellings denied that any such statement was made, but both Shaw and Black testified at the hearing and neither denied that it had. been made. Indeed, Black admitted that STEWVART DIE CASTING CORPORATION 883 the testimony of Board witnesses as to what occurred at this meeting was substantially correct. Under the circumstances we conclude that such a representation was made. Vihon had a list of the demands that had been given him by the U. A. W. representatives. This list contained demands for a 40-houi week, time and one-half for overtime work, control of the speed-up, elimination of piece work, increases in the wage scales for the em- ployees in the various departments, 2 weeks' vacation with pay, a 75-cent minimum wage, seniority rights, and recognition of the U. A. W. as the bargaining agency for the respondent's employees. According to the testimony of the Board's witnesses, Vihon started to discuss these various demands of the employees in the order named. As to the demand for a 40-hour week, the reply of the respondent's representatives was that "sometimes we work 30 hours and. some- times wen.work 40 hours, there is nothing in that point." The demand for time and one-half for overtime work was next discussed. The representatives of the U. A. W. were advised that the respondent had met this demand as far as the employees who were then working were concerned. The attitude adopted by the respondent's officials toward the at- tempts of the representatives of the U. A. W. to carry on negotiations with respect to these demands is best exemplified by the testimony of Shaw, upon cross-examination : Q. In other words, there was nothing to discuss; is that right? A. Oh, no. We didn't think there was anything to discuss. The plant had been seized unlawfully, the men had been ejected, the plant had been reopened and we had men enough to take care of all the work we had to do. What difference did it make? Q. There was nothing else to discuss; is that correct? A. We didn't think so furthermore because they had not in- voked the National. Labor Relations Act; they had not provided for the section [sic] of any bargaining unit. The last demand contained on the U. A. W. list was the demand for recognition of the organization as the exclusive bargaining repre- sentative of the employees. The Board's witnesses testified that when this demand was presented the union was met with a refusal on the part of the respondent's officials to grant the U. A. W. such recogni- tion and the meeting ended. Hellings denied that the respondent refused to recognize and bargain with the U. A. W., and testified that the meeting was terminated because the U. A. W. insisted upon a written agreement. His testimony, however, is not consistent with Shaw's set forth above, nor .with that of Black, the respondent's other 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney present at the conference . Black testified, and we find, that the respondent's officials refused to recognize the U. A. W. as the bargaining representative of the employees at this meeting , and also at a subsequent meeting on April 17, 1937. The third meeting between the parties occurred a week later, on April 17, 1937. Hall, a representative of the U. A. W., acted as spokesman for the employees and presented the same demands of the U. A. W. which had been presented at the previous meeting. The following is the testimony of Black as to what occurred upon the. presentation of the demands of the U. A. W.: Q. Was there any discussion then of the so-called demands contained in this document? A. There was no specific discussion of the so-called demands that were made in that document, the first discussion was, after what I have just related, that Mr. Hall said that they wanted us to enter into a written agreement and'that we said we would not do that; we would not enter into a written agreement with anybody. Q. Did the conference end on that note? A. Practically. He said, further than that, that he wanted us to recognize them-using the word "them"-as the sole collective bargaining representatives of the employees of the company. I told him we would not do that; that we reserved the right to 'bargain with any individual in our employment; that we would try to make it clear that we would bargain with any individual or with any group of individuals or with any one representing any group of individuals; that we had told them that a week before and that was still our position. And he said if that was so there was no use talking any further, and that was about where the conference ended. The U. A. W. concluded after this meeting that in view of the position taken by the respondent it would be futile to attempt further negotiations. Picketing of the respondent's plant continued unabated until 'June 15, 1937, when the U. A. W. decided to make further efforts to negotiate with the respondent. At the request of Edward J. DeGrace, president of Local 298, the parties met again on June 21, 1937. The conference beginning on June 21 was continued over and concluded on June 24. The matter of recognition of the U. A. W. was the first subject broached by representatives of the organization. Whitney, attorney for the U. A. W., requested recognition of the U. A. W. as'the sole bargain- ing agency for the employees, and, according to his testimony, ex- STEWART DIE CASTING CORPORATION 885 plained : "By recognition we meant that we wanted a signed contract saying in plain English, `We, the undersigned, hereby recognize the Automobile Workers of America as the sole exclusive bargaining agency for the employees at this Company."' The U. A. W. also requested that the new employees hired during the course of the strike be discharged and that the strikers be reinstated immediately. The respondent took the position that no bargaining agent had ever been determined by the Board and therefore the respondent would not enter into an agreement recognizing the U. A. W. The respond- ent's officials announced specifically that by meeting with representa- tives of the U. A. W., the respondent had satisfied its obligation under the Act. They further alleged that there was no strike because the plant was still in operation, and that because the striking em- ployees had been given an 'opportunity to come back to work, and had refused, their positions had been filled by new employees. The proposals of the U. A. W. for recognition and immediate reinstate- ment of the striking employees were thus rejected. Following fur- ther discussion, howeier, the respondent agreed to reinstate the strik- ing employees as the need for them developed', and if and when any vacancies occurred. The respondent also agreed to reinstate the em- ployees in accordance with a list to be submitted by the U. A. W. The respondent agreed further to abide by certain declarations as to wages, hours, and conditions of employment contained in a letter written by Hellings to Disser on April 28, 1937,4 and to observe seniority. The U. A. W. insisted that the concessions granted by the respondent be incorporated in a written agreement with the * Under the heading "The Company's Attitude Towards its employees " the following declarations as to the respondent 's labor policy are contained in the letter to Disser: "(1) As to wages : The Company pays, and Intends to continue to pay, wages as high or higher than those in Chicago for similar work. (2) As to hours of work: The company works on an eight -hour day. It has a forty- hour week . It pays time and one-half for overtime in excess of eight hours in any one day or in excess of forty hours per week and on Sundays and holidays. It gives at least one day of rest in every seven. '(3) As to holidays : The company gives holidays in accordance with the usual practice In Chicago, including, New Year's Day, Decoration Day, Fourth of July, Labor Day and Christmas. At present it is giving, and so long as economic conditions permit, it proposes to continue to give one week's vacation on full pay to all of those employees who have been continuously in the service for one year or more. (4) Other things being equal, and to the extent that it does not interfere with the efficient operation of the plant, the, company recognizes seniority in dealing with its men in matters such as lay-offs and the like . It also takes into consideration social questions, such as the number of dependents and permanency of residence." The letter also contained statements concerning the respondent 's policy as to regular work, insurance , health, and working conditions. 886 DECISIONS OF NATIONAL' LABOR RELATIONS 'BOARD U. A. W., but the respondent's officials refused to agree to this. They finally gave Whitney the following letter : JUNE 24, 1937. Mr. E. C. WHITNEY, Counsel, International Union, United Automobile Workers of America, Local 298, Chicago, Ill. DEAR SIR : Enclosed, herewith it is a pleasure for me to hand you a copy of a letter which I sent to Mr. Disser, Regional Di- rector of the National Labor Relations Board, on April 28th. Of course you are at liberty to circulate copy of this letter to every- one whom you think would be interested in it. In connection with this letter, I am pleased to confirm what I said to you and the officials of Local 298 aforesaid : You furnished me'with a list of names which you stated to me include the names of all of the employees of the Company who were in the service on March 16th and who have not re- turned to the service up to the present time and whom you wish me to regard, as applicants for the positions in the respec- tive departments of the company in the order in which the names appear. Upon the assumption that the list as furnished is correct, if the individuals whose names are mentioned on that list desire to be reemployed by the Stewart Die Casting Corporation, they will be employed as the needs of the company develop, if, as and when any vacancies occur in said respective departments, whether such vacancies are caused by retirement of men now in the service or by present needs for additional employees or by reason of increased volume of work in the future. If, however, the Company should find that the list as submitted is incorrect, the Company will feel free at all times to employ for such vacancies as it has, any employees who were in the service on March 16, 1937 -and who have not yet returned to the service and whose names are not on the list. Such individuals as again enter the service and are thus rein- stated as employees will receive the same wages which are paid to other employees in the respective departments and will receive the same treatment as may be accorded other employees. Very truly yours,. (Signed) S. A.. HELLINGS. STEWART DIE CASTING CORPORATION 887 In a separate'. document also delivered to Whitney, the respondent incorporated the following : _ In the .future, other things being equal, this Company will recognize in a broad way the principle of seniority; provided, however, that the' Conipany shall never recognize seniority, if, in the judgment of the officers of the Company, the efficient operation of the plant may be impaired by so doing. A , fourth letter, not introduced in evidence, setting forth the then prevailing wage scales for the employees in the various departments was also delivered to Whitney by Hellings with the statement that these wage scales would remain in force and effect. This letter was intended to assure the striking employees that they would receive the benefit of a 10-per cent wage increase which had been granted to the employees who were then working. On the following day, June 25, 1937, a list submitted by the U.,.A..W .. containing the names of the employees to be reinstated was rejected by the respondent because it was not in accordance with strict, seniority. A second list observing seniority and containing the names of some 340 employees with the heading "Immediate re- instatement of these Employees" was thereafter submitted by the U. A. W. No further efforts were made by the U. A. W. to carry on collective bargaining with the respondent until July 20, 1937. On that date DeGrace wrote a letter to Hellings requesting a conference between the respondent and the U. A. W. The respondent replied that Hellings was out of town. Thereafter the U. A. W. made no further requests to bargain. b. Conclusions with respect to the refusal to bargain An analysis of the evidence of both the Board's and the respond- ent's witnesses which has been set forth above conclusively snows that the reospondent did not at any of the conferences between the parties bargain in good faith with the U. A. W. as the representative designated by a majority of its employees. From and after the first request made by the U. A. W. for collective bargaining on March 22, 1937, the respondent engaged in a course of conduct designed to evade its duties under the collective bargaining provision of the Act. The letter of March 23, 1937, set forth above, exemplifies the respondent's illegal and evasive policy prevailing during the entire period of the U. A. W.'s attempt to carry on collective bargaining. It clearly evidences the respondent's intention of dealing directly with its employees, and thus evading -its obligation under the Act to 190935-40-vol. 14-57 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain with the' representative designated by a majority of them:, as the exclusive collective bargaining representative. To the extent : that it purported to be an answer to the demand of the U. A. W. on March 22, 1937, it was tantamount to a direct and positive refusal to grant the U. A. W. the recognition requested and to bargain. collectively with it, as the representative of the employees. We accordingly find an unlawful refusal to bargain on the part of the respondent on March 23, 1937. At each of the meetings that followed, the efforts of the U. A: W. to conduct genuine negotiations with the respondent were 'unsuccessful because of the continued refusal of the respondent to recognize the U. A. W. as the bargaining representative of the employees and to bargain in good faith regarding. its demands.' The ; testimony of witnesses both for the Board and for the ' respondent clearly establishes that the respondent refused to grant the U. A. W. the recognition to which it was entitled under the Act. Hellings was the only witness for the respondent who steadfastly maintained that the respondent had "recognized" the U. A. W. It appears from his testimony, however, that he was of the opinion that the require ment of union recognition had been fully satisfied by meeting with the U. A. W. representatives. Union recognition, however, the granting of which is an essential prerequisite to any genuine col- lective bargaining, consists of an acknowledgment on the part of the employer that the union designated by a majority of his employees in an appropriate unit is the exclusive representative of those em- ployees for the purpose of collective bargaining. By this acknowl- edgment the employer admits the existence of the organization and its authority to represent all the employees within such unit. When such acknowledgment is withheld, genuine collective bargaining is impossible, no matter how many times the employer meets with the duly authorized representatives of his employees." The respondent's refusal to grant the U. A. W. recognition was based upon the fact, as stated by Black in his testimony,' that the respondent "reserved the right to bargain with any individual or with any group of individuals or with anyone representing any group of individuals." The respondent's position is patently untenable. We have found above that the U. A. W. represented a majority of the employees within an appropriate unit and that it requested the re- spondent to bargain collectively with it as the exclusive representa- tive of all the employees within such unit. ' The proviso of ion 9 (a) which relates solely to the presentation of grievances cannot be 6Matter of Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L. it. B. 298. STEWART DIE CASTING CORPORATION 889: construed to nullify the affirmative declarations of the same- section 6 z or to relieve the respondent of its duty under Section 8 (5) of the Act to bargain collectively. The respondent further contends that it cannot be charged with a refusal to bargain because of the failure of the U. A'. W. to offer proof that it represented a majority of the respondent's employees. There is no merit in this contention. As we have shown above, the record is conclusive that the U. A. W. did in fact represent a majority of the employees, and it is undisputed that the respondent's officials made no challenge of this fact at any of the meetings when the U.'A. W. attempted to bargain with the respondent. In view of this, there was no obligation on the part of the U. A. W. to. present such proof to the respondent. At all of the various conferences between the parties the U. A. W. was in a position to furnish satisfactory proof that it did represent a majority of the employees, and it is only reasonable to assume that it would have done so if the request had been made. From the testimony of the respondent's attorney, Shaw, it appears that the respondent also took the position at one of the later confer- ences between the parties that there was no obligation on its part to recognize the U. A. W. due to the fact that the organization had not been certified by the Board as the bargaining representative of the employees. In the light of the other evidence, this assertion clearly did not amount to an expression of any genuine doubt 'as to the U. A. W.'s majority; the respondent at no time asked the U. A. W. to produce evidence of its membership or otherwise contested the U. A. W. claim to represent the majority of the employees. The assertion appears rather to have been purely technical, amounting to a claim that apart from the U. A. W.'s actual majority, it had no right to collective bargaining without formal certification by the Board. This position is clearly untenable. Board action is only called for when there is a question as to whether or not a labor organi- zation represents a majority of the employees within an appropriate unit, when there is a dispute regarding the appropriate unit, or when two or more contending unions are claiming to represent a majority of the employees. No evidence was offered by the respondent to refute the fact that the U. A. W. represented a majority of the em- ployees or to show that the unit contended for by that organization is not appropriate. No other labor organization was claiming to repre- sent any of the employees. Clearly, exercise of the Board's function 6 Section 9 ( a) of the Act provides as follows : "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other . conditions of employment : Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer." 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the Act was not called for under these circumstances, and the respondent is in no position to assert as a pretext for not bargaining- with the ' U:' A. W. the fact that the organization had not been cer- tified by the Board as the bargaining representative of the employees.? On the record as a whole, we find that the respondent raised this point in bad faith, as a pretext for evading collective bargaining with the U. A. W. Finally, the respondent contends that it did in fact bargain col- lectively with the U. A. W., and that such bargaining resulted in the strike-settlement agreement of June 24, 1937. As noted above, the so-called agreement of June 24, 1937, settling the strike contained no provision for recognition of the U. A. W. as the exclusive bargaining representative of the employees; the respondent expressly refused to accord such recognition to the U. A. W. At most, the documents signed by the respondent and delivered to the U. A. W. were no more than statements of policy accepted by the U. A. W. under the com- pulsions brought about by the respondent's unfair labor practices rather than an agreement resulting from . genuine collective bargaining." While the attitude of the respondent prevented any genuine col- lective bargaining negotiations, the respondent in addition indicated throughout that it would not enter into a signed agreement, even though understandings were reached. We have held under substan- tially similar circumstances and in language equally applicable here that collective bargaining in( good faith ordinarily requires a will- ingness to embody terms reached in a signed agreement : Section 8 (5) of the Act requires an employer to accept the procedure of collective bargaining in good faith, and the nature of this obligation must be determined in the light of the prevail- ing practice of collective bargaining and the spirit and purpose of the Act as a means of avoiding industrial strife. We regard it as well settled that collective bargaining in good faith requires a willingness to consummate the negotiations, if successful, by entering into some sort of an agreement. And we hold that under circumstances such as are presented here, it is the em- ployer's obligation to accede to a request that understandings reached be embodied in a signed agreement. The present con- troversy is projected on the background of a long struggle by labor organizations to attain full recognition of their right to 7 A similar contention was raised in the Remington Rand case and rejected by the Circuit Court of Appeals for the Second Circuit. The Court stated : ". . . it does not In the least follow that [the employer ] need be satisfied with no evidence except the Board's certificate .. ." National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862, cert. denied 304 U. S. 576. 8 For further discussion of the strike settlement , see subsection D, infra. STEWART DIE CASTING CORPORATION 891 recognition as collective bargaining agencies with a dignity equal. to that of the employers with whom they deal.. We take judicial notice of the fact that today thousands of. employers have ac- corded unions their right to normal contractual relationships, and that, as is shown by the record, the signed collective bargaining agreement is the prevailing practice. From the viewpoint of harmonious and cooperative labor relations, as well as of sensible business practice, the importance of embodying understandings in signed agreements is obvious. Whether there may be, in some future case, circumstances indicating that the employer there in- volved may under the Act decline to embody understandings in a signed agreement, we need not here decide. It is certain that we are not confronted with such circumstances in this case. To say that there is something impracticable about a signed collective bargaining agreement with a large steel manufacturing concern, justifying an exception from the general practice, would be to shut our eyes to facts of common knowledge concerning recent labor history. As a matter of fact, the reasons advanced by the respondent, considered in connection with the factual background of the current dispute, indicate clearly that the respondent was and is motivated in its action by a desire to check the progress of the S. W. 0. C. in its plants a We find no peculiar circumstances in this case warranting an exception from the general practice. We find, therefore, that on March 23, April 9, April 17, June 21 and 24, 1937, and thereafter, the respondent refused to bargain col- lectively with the U. A. W. as the exclusive representative of its employees in an appropriate unit in respect to wages, rates of pay, hours of employment, and other conditions of employment. We fur- ther find that the respondent, by the acts set forth above, interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. We further find that the strike was continued from and after March 23, 1937, because of the respondent's unlawful refusal to bargain collectively with the U. A. W. oMatter of Inland Steel Company and Steel Workers Organizing Committee and Amal- gamated Association of Iron, Steel and Tin Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L. R. B. 783. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference, restraint, and coercion During the period from March 16 to 25, 1937, when the plant was shut down, and thereafter until the end of the strike on June 24, 1937, the respondent's illegal conduct in refusing to bargain with the U. A. W. was supplemented and abetted by other activities designed to break the strike and to coerce the employees into renouncing their membership in the U. A. W. The following excerpts from the letter of March 23, 1937, set forth above, are illustrative of the attitude of .the respondent: Do not be led astray by any claim that we can be bullied or coerced by any labor organization-or that we are willing to enter into a horse trading contract with any group who claim the ability to deliver free workmen at a price. Think well ! You are free American citizens. If you wish to sell your freedom of action-to be governed-by a labor group in some far off city who bargains your services, or to be swayed by some young agitators who would remake our country, that is your business. But think well ! Are you helping yourselves, your wives and your families, or are you with your hard-earned dollars helping a selfish group of so-called labor leaders to gain power? The entire letter is neither subtle .or ingenious; it is an open attempt on the part of the respondent to warn the employees against collective bargaining through the union of their choice, and thus to evade its obligation under the Act to bargain collectively with that union. Augmenting the respondent's illegal policy were the activities of its supervisory employees during the strike. From the beginning` of the strike the respondent's foremen solicited the striking employees individually to return to work. These solicitations were made while the.men were on the picket line, and also by personal and telephone calls made to their homes. Hellings admitted in his testimony that he had instructed the supervisory employees to approach the em- ployees after -the plant had reopened and offer them 2 weeks' pay if they would return to work by May 5, 1937. Many of the employees testified regarding such inducements, which in some cases were ac- companied by derogatory statements made by these officials concern- ing the U. A. W. Several of the supervisory employees who were placed on the stand by the respondent admitted making such solici- tations and, in some instances, that they informed the employees that they would lose their jobs if they did not come back to work, that the respondent would not enter into an agreement with the U. A. W., STEWART DIE CASTING CORPORATION 893 and that the U. A. W. was not going to get them anywhere. The solicitation of individual employees to return to -work, the attacks on the U. A.. W., and the, refusal to bargain proved effective. Ap- proximately 348 employees returned to work during the strike, and efforts 'of the U. A. W. to obtain recognition and to carry on collec- tive bargaining were rendered nugatory. Fred Johnson, one of the striking U. A. W. members, applied for a position during the strike at the Pace Manufacturing Company, a neighboring concern in Chicago, and in his application listed the re- spondent as his former employer. L. M. Poull, superintendent of -the Pace plant, testified that his company had sent a form of inquiry concerning Johnson to the respondent by mail. The Pace Manu- facturing Company received a reply by, mail, in which it was stated in reference to Johnson : Has been one of the main agitators during the strike-will not rehire. The-,name of'Pipenhagen,: the respondent's personnel manager, was signed to this communication. Pipenhagen testified that the signa- ture was not his and that no one had been authorized by him to send such a communication. We do not believe his denial, under the cir- cumstances . This incident clearly indicates the respondent's antip- athy-'toward the employees who engaged in the strike, and is ex- planatory of its conduct toward them when they applied for rein- statement at the conclusion of the strike. Climaxing the respondent's illegal conduct, the following letter, in mimeographed form, was sent by the respondent to all employees on June 26, 1937, 2 days after the settlement of the strike: To ALL EMPLOYEES OF THE STEWART DIE CASTING CORPORATION : I note in this morning's Tribune a news item to the effect that the so-called strike has been called off. For your information I am enclosing herewith copies of our letters of April 28th to the National Labor Relations Board and of June 17th to the counsel of Local No. 298. Read them carefully and you will see that throughout the company has and does still maintain : 1. That the interruption of work at this plant was due to ill advised group hysteria rather than to any real grievance" 2. That since the plant has opened the management have and do prefer to hire former employees rather than new men ; that new men are employed only when former employees do not seek re-employment and that such new men when once employed will be retained in the service and will not be discharged to make room for former employees. . 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. That it is not necessary for employees to join a union and burden themselves with dues and assessments in order to confer with or receive fair treatment from the Company. We may all well count the cost of these last three months. The company has lost customers and money. Employees; have lost pay and jobs. Acts of violence have been committed and tempers have run higli. No one has gained, though possibly learned that peace is better than strife and that men and management have common interest in all things. The prosperity of the company is the one thing which can bring prosperity to you and to me. If we build that we all gain. If we pull it down we all lose. Sincerely, THE, STEWART DIE CASTING CORPORATION, S. A. HELLINGS, President. S. A. HELLINGS. BB. Enclosures. Following the refusal of the respondent to bargain, collectively, it is plain that this letter was calculatedand designed to render futile the efforts of the U. A. W. to maintain its majority and to represent the employees. We find that the respondent, by the activities set forth above, has .interfered with, restrained, and coerced its employees in the exercise of their right to self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through, representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. C. The refusal to reinstate the striking employees, and the lay-offs alleged in Case No. C-577 The plant of the respondent remained closed after it was shut down on March 16 until March 25, 1937. When the respondent re- sumed operations on the latter date, the U. A. W. was conducting a strike because of the refusal of the respondent to bargain collectively with the organization on March 23, 1937, and thereafter. The strike terminated and the picket line was withdrawn by reason of the strike settlement on June 24, 1937. Largely due to the illegal con- duct on the part of the respondent, set forth above, 348 of the em- ployees, who had in the beginning participated in the strike, went back to work before it ended. In addition, the respondent employed -STEWART DIE CASTING CORPORATION 895' 230 new employees to take the places of those who were striking and who had refused to return to work. Approximately 185 of these new employees 10 were still in the respondent's employ on June 24, 1937, when the strike was settled and the striking employees re- fused reinstatement. The respondent having shut down its plant on March 16 until March 25, 1937, no opportunity was afforded the striking employees to return to work until the latter date. When the plant reopened on March 25, 1937, the employees were engaged in a strike. As found above, the continuation of the strike from and after March 23, 1937, was a labor dispute caused by the respondent's unfair labor practice in refusing to bargain with the U. A. W. Under Section 2 (3) of" the Act, the striking employees retained their status as employees of the respondent 11 Since the strike was continued from and after March 23, 1937, because of the respondent's unfair labor practices, the striking employees were entitled to reinstatement to their former positions with. the respondent upon the termination of the-strike on June 24, 1937.12 The list submitted to the respondent by the U. A. W. on that date constituted an application for rein- statement on behalf of each individual employee named thereon. Therefore, the respondent's action on June 24, 1937, in refusing to discharge the employees hired after the commission of the unfair labor practices to take the place of the striking employees, and to reinstate the strikers making application, constituted a discrimina- tion as to the strikers'-hire and tenure of employment discouraging union membership within the meaning of Section 8 (3) of the Act.- In addition, the striking employees were entitled to reinstatement on that date with a restoration of all their rights and privileges that had existed prior to the strike, including that of seniority, the same as if they had not participated in the strike. Nor are the rights of the striking employees or the obligations of the respondent under the Act regarding them affected in any manner by reason of the U. A. W.'s acquiescence in the terms and conditions of the strike settlement. The U. A.- W. was striking for recognition 10 New employees were those persons hired by the respondent after March 23, 1937, who, in so far as the record shows, had never previously been employed by the respondent. 11 National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S. 333. 12 Black Diamond Steamship Corp. Y. National Labor Relations Board, 94 F. (2d) 875, certiorari denied May 23, 1938 , 304 U. S. 579 ; Jeffery-DeWitt Insulator Co. V. National Labor Relations Board, 01 F. (2d) 134, certiorari denied October 18, 1937, 302 U. S. 731; Remington Rand, Inc. v. National Labor Relations Board, 94 F. (2d) 862, cert. den. May 23, 1938, 304 U. S. 576; Matter of Western Felt Works, a corporation and Textile Workers Organizing Committee, Western Felt Local, 10 N, L. R. B. 407; Matter of McKaig-Hatch, Inc. and Amalga m ated Association of Iron, Steel, and Tin Workers of North America, Local No . 1139, 10 N. L. R. B. 33. 13 See footnote 12, supra. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the bargaining representative of the employees and for collective. bargaining. By the conditions of the strike settlement the respondent perpetuated its unfair labor practices and neither recognized the U. A. W. nor negotiated regarding its demands. At the time of the settlement the parties occupied the relative positions of victor. and vanquished in the economic warfare which had taken place, with the respondent as victor, and thus able to dictate its own terms and con- ditions as to peace. The respondent's occupation of this strategic position was not due to legitimate use of its superior economic force as a weapon in combatting the equally legitimate exercise by the employees of their right to strike, but the strike had been prolonged. and the respondent's victory therein achieved by the respondent's resort to practices condemned under the Act. Finally, subjugated by reason of the unfair labor practices of the respondent, and no longer able to continue the fight, the U. A. W. had no alternative but to accept the terms and conditions dictated by the respondent. To hold under these circumstances that acquiescence by the U. A. W. in the terms and conditions imposed by the respondent operated to deprive the employees of any of their rights under the Act, would be to give legal sanction to the illegal acts which finally compelled the U. A. W. to accept the settlement, in lieu of its unequivocal right to recognition and collective bargaining, and the equally unequivocal right of the individual employees to reinstatement upon the conclusion of the strike prolonged after March 23, 1937, by the respondent's unfair labor practices. As noted above, the sit-down strike was devoid of violence or destruction of property, and the respondent's plant was evacuated promptly and peacefully by the strikers on the morning of March 17, 1937, when the Chicago police entered to evict them. Although shortly after the sit-down strike began Goff notified the employees engaging therein that they would be "considered through" and their employment terminated if they did not leave the plant within 15 minutes after he had warned them to do so, it appears` that the employees did not leave the plant at the expiration of the period set by Goff, and there is no evidence in the record that Goff carried his- threat into execution. Furthermore, no contention was made by the, respondent at the hearing that any of the striking employees were discharged or refused reinstatement at any time because of their participation in the sit-down strike. As a matter of fact, it affirma- tively appears from the record that all of the employees making application for work during the strike, after the plant reopened on March 25, 1937, were treated alike and given employment irrespective STEWART DIE CASTING CORPORATION 897 of whether or not they had participated in the sit-down strike.14 In addition, the respondent has made no contention in the record that participation in the sit-down strike constitutes a bar to reinstatement of..any.of the employees engaging.. therein, irrespective of whether or not employment was in fact refused such employees by the respond- ent for this reason. We find that the employees participating in the sit-down strike were not discharged, and that they retained their status as employees for all purposes of this proceeding. There is evidence in the record of assaults committed on employees who worked during the strike, other acts of violence, and of police activity and arrests and convictions in connection therewith. It is unnecessary to discuss the evidence in this connection in detail, or come to any conclusion regarding it, because the respondent made no contention at the hearing that any of the striking employees were discharged or refused reinstatement because of having been charged or convicted of any such offenses, and we find that none of them was.15 The complaint in Case No. C-577, as amended, alleges in substance that on June 24, 1937, and thereafter, the respondent refused to rein- state 144 named employees, that it delayed the reinstatement of 55 named employees, and that it subsequently laid off 41 of the 55 employees after they were reinstated, for the reason that all of said employees joined and assisted the U. A. W. and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection. On the motion of the respondent's counsel at the conclusion of the hearing, the cases of all of the employees named in the complaint who did not appear and testify, with the exception of the four employees whose depositions were to be taken, were dismissed. No evidence was presented in the record on behalf of these employees. The Trial Examiner also found that Irving Soden, named in the complaint, went back to work before the strike ended and thereafter voluntarily quit, and that for this reason the charge as to him was not sustained 14 The following statements were contained in Hellings ' letter of April 28 , 1937, to Disser : . . . Seven days after, on March 23rd, the management decided to reopen the plant and accordingly a letter, a copy of which is attached hereto, was sent to every employee of the company , irrespective of what, if any, affiliation he had, or had had, with any other person, either in or outside the employment of the company , and also irrespective of whether he had or had not participated In the unlawful seizure. of the company's property. 11. . . Everyone applying for work was re-employed and this was done regardless of what the affiliation of such employee had been with respect to other employees or with the `sit-down strike.' " 15 Goff, plant manager for the respondent, testified , in substance, that the respondent did not decline to "rehire " the employees accused of acts of violence ; that a "lot of them" were "hired" before and after the strike ended , and were still working at the time of the hearing. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the evidence. We affirm these rulings and concur in the findings of the Trial Examiner. The complaint divided into three categories the striking employees whom the respondent is charged with having discriminated against within the meaning of Section 8 (3) of the Act. The employees. in these three categories who testified at the hearing are listed sepa- rately in Appendix A, Appendix B, and Appendix C, attached hereto and made a part hereof. Each of these categories will be separately discussed : A The names of all of the employees listed in Appendix A were included on the list submitted by the U. A. W. at the conclusion of the strike on June 24, 1937, with the request that the employees named thereon be reinstated immediately. All testified that they had never been reinstated and it does not appear that they have obtained substantially equivalent -employment.16 The respondent contends , that because the striking employees rejected the respondent's offer of employment after the plant re- opened, and continued on strike, they were replaced by new em- ployees and were not entitled to reinstatement at the conclusion of the strike on June 24, 1937. Apparently the respondent's contention is based upon the false premise that it had committed no unfair labor practices at the time the striking employees were replaced by new. employees, and that for this reason their relation as employees was terminated by such replacement .17 However, we have found above that the respondent committed unfair labor practices by refusing to bargain with the U. A. W. on March 23, 1937, and thereafter; and that the strike was continued from and after that date until June 24, 1937, because of these unfair labor practices. No new employees replaced the striking employees until after the plant resumed opera- tions on March 25, 1937. The employee status of the striking em-. ployees was not affected by their replacement by new employees subsequent to the commission of these unfair labor practices.18 We have frequently held that, an employee may refuse an employer's offer of employment during the pendency of a strike occasioned by an employer's unfair labor practices without impairing such em- ployee's right to subsequent reinstatement.1' '- The three employees who furnished their testimony by deposition are included in Appendix A. 17 We do not pass upon the validity of the respondent's argument had its apparent premise been correct. 19 National Labor Relations Board v. Colnn+bian Enameling d Stamping Co., 306 U. S. 292. 19 See, for example, Matter of Western Felt -Works and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407. STEWART DIE CASTING -CORPORATION 899 . As before stated, from March 25, 1937, the date when the plant reopened, until June 24, 1937, the respondent hired 230 new em- ployees to take the places of those employees engaged in the strike. Of these new employees, 185 still remained in the respondent's em-, ployment on June 24, 1937, and none of them was discharged so as to effect a reinstatement of the striking' employees on that date. Fur- ther, an examination of the seniority status of the respondent's em- ployees establishes that many of the old employees given employ- ment during and after the strike had less seniority than the striking employees listed in Appendix A. By discharging the employees hired for the first time during the strike, and displacing a few of the old employees with less seniority who had returned to work during the strike, all of the employees listed in Appendix A could have been given employment on June 24, 1937.20 The respondent offered no evidence that the new employees hired during the strike, or the old employees with less seniority, all of whom were retained on June 24, 1937, to the exclusion of the striking employees making applica- tion for reinstatement, were so retained because of their superior skill or ability. In the absence of such evidence, the failure of the respondent to reinstate the employees listed in Appendix A must be attributed to the fact that they were members of the U. A. W. and had engaged in concerted activities.21. Under the circumstances, the failure of the respondent to reinstate the striking employees listed in Appendix A constituted a discrimination regarding their hire and -'o This conclusion is arrived at by examining the tabulations introduced in evidence compiled from the original employment records of the respondent. In order to illustrate. we will take the case of Harry N . Anderson, one of the employees listed in Appendix A. An examination of the tabulations discloses that he was employed in the respondent's "Cleaning" department prior to the strike ; that 76 new employees went to work in this department during the strike, and that 66 of them were still working on June 24, 1937 . The tabulations also show that 65 old employees who returned to work during the strike were working on June 24, 1937, who had less seniority than Anderson. The employees listed in Appendix A worked throughput the various departments of the respondent's plant, and in the case of each of them, either new employees or old employees with less seniority who returned to work during the strike were in the respondent's employment on June 24 , 1937 , doing the work upon which the employees listed in Appendix A had been engaged prior to the strike. n Goff attempted to explain the respondent 's failure to reemploy certain of the indi. viduals listed in Appendix A. He testified that Charles Hewitt was sent a registered letter on October 8, 1937, advising him to report to work, which was returned unclaimed that Henry Krock was offered employment in August but refused to return to work; and that several other employees whom he named were not offered reinstatement because they had other employment or had removed their tools . However, Hewitt made personal application for employment after the strike concluded , and such employment was refused him. The fact that he was sent a letter at some later date which he did not receive does not militate against his right to reinstatement . Krock testified that he reported to the respondent 's plant in August in response to a call that he received , was instructed to fill out an application and did so , and was then advised by one of the respondent's officials that he would be called when needed . Thereafter, he was never called. In view of Krock 's positive testimony , and because Goff admittedly based his testimony upon information obtained from others and not upon personal knowledge , we conclude that Krock was not offered employment by the respondent. The fact that the other individuals named by Goff had other employment , or had removed their tools , furnishes no justification for the respondent' s failure to offer them employment. 900 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenure of employment. Such discrimination discourages union membershp.22 We find that the striking employees listed in Appendix A were denied reinstatement on or about June 24, 1937, and, at all times thereafter, because they joined and assisted the U. A. W. and engaged in concerted activity in connection therewith, and that the respond- ent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. . Bror Johnson is not included in Appendix A because he testi- fied that he obtained employment elsewhere on May 19, 1937, making $175 a month, which was more than he made with the respondent. He was still employed at the time of the hearing in this position and stated that he would accept his old position with the respondent only upon condition that he received an equivalent salary. While it ap- pears that Bror Johnson's name was included on the list of em- ployees seeking reinstatement on June 24, 1937, we infer from his testimony that he would not have accepted employment on that date, or thereafter, unless he. was offered equivalent wages to those re- ceived in his new employment. Under these circumstances, we do not find discrimination as to Johnson. In addition to Johnson, the evidence does not sustain the charges of discrimination as to four other employees named in the complaint; as coming within this category. These four employees, Vernon Conrad, Joseph Prokupek, Frank Kisiel, and Edmund Kica, are not included in Appendix A because each testified that he was offered employment by the respondent after the strike ended but rejected the offer because of other employment. We find that Bror Johnson, Vernon Conrad, Joseph Prokupek, Frank Kisiel, and Edmund Kica were not denied reinstatement be- cause they joined and assisted the U. A. W. and engaged in con- certed activity for the purpose of - collective bargaining. By its failure to reemploy Johnson, Conrad, Prokupek, Kisiel, and Kica, the respondent has not interfered with, restrained, or coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, or discouraged membership in the U. A. W. B The employees coming within this category, listed in Appendix B, were contained on the list submitted by the U. A. W. and were refused reinstatement on June 24, 1937.23 They were subsequently = See footnote 12, supra. 23 The general statement that the employees listed in Appendix B were refused rein- statement on June 24 is not applicable to William Schupolsky , listed therein , since the record discloses that he made application for work on June 12 and received employment on that date. However, because Schupolsky did not return to the respondent 's employ- STEWART DIE CASTING CORPORATION 901 reinstated.. by the respondent on the . dates set forth opposite their names in said Appendix B under the heading "Reinstated" and thereafter laid off on dates also- indicated opposite their names thereon under the heading "Discharged." The . complaint alleges that the respondent refused to reinstate them from June 24, 1937, until the dates of their respective reinstatements, and also that their subsequent discharges, on the dates shown, were discriminatory. All desire. reinstatement with the respondent, and we find that none of them has obtained substantially equivalent employment. Under the facts-set -forth under A above, and our conclusions with reference thereto, which - are ,equally applicable here, the refusal ' of the respondent to reinstate these employees from June 24, 1937, until the dates of their respective reemployment, and at the same time retaining employees hired for the first time during the strike and many old employees with less seniority who had returned to work during the strike, constituted discrimination with reference to the hire and tenure of employment of the employees listed in Appendix B. Such discrimination discourages union membership.24 By dis- charging the employees hired, for the first time during the strike, and displacing old employees with less seniority who had returned to work during the strike, all of the employees listed in Appendix' B could have been given employment on June 24, 1937.25 The respondent claims that the employees listed in Appendix B were subsequently laid off because of a, necessary force reduction due to a recession in its business. Clarence Goff, the respondent's plant manager, testified that in lay- ing off the men, all other factors being equal, seniority was con- sidered; and that the seniority of the striking employees ' was com- puted from the date when they were reinstated after the strike, in- stead of the date of their original employment. No testimony was offered by the respondent regarding "other factors" which caused the employees in Appendix B to be laid off rather than the employees with less seniority. In the absence of any such testimony it is ap- parent that' application of the theory of seniority stated by Goff caused the employees listed in Appendix B to be laid off before any of the employees who had worked during the strike because they were the last to return to work.26 This was the same, in effect, ment until June 12, the factors governing his subsequent dismissal are the same as those governing the dismissal of the other employees listed in Appendix B. For this reason, Schupolsky is included in Appendix B for convenience, although we do not find that he was'discriminatorily refused reinstatement at the conclusion of the strike but only that he was discriminatorily laid off on December 31, 1937. 24 See , footnote 12, supra. 'Seeifootnote 20, supra. The analysis set forth there in respect to the employees in Appendix'A is 'equally applicable to the employees now under discussion. 20 See footnote 23, supra. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as laying off, these employees first because they had participated in the strike, and is just as clearly an illegal discrimination- as. to them. Upon the termination of the strike on June 24, 1937, the employees listed in Appendix B were entitled to reinstatement with a restora- tion of all their rights and privileges, including that of seniority. Therefore, in determining which of the employees should be laid off, the seniority of these employees should have been computed. from the date of their original employyment,• instead of from the date of their reinstatement. The respondent could have had no other'-reason for resorting to its method of determining the employees to be dis- missed than that such method assured preference in employment. being given to the employees who had worked during the strike, and by the same token secured the elimination of the most persistent and active U. A. W. members in its employment. The use of this method was thus plainly discriminatory.27 Included among the employees listed in Appendix B is Nick Brcich, who was reinstated after the strike on September 28, 1937. After he had been working for approximately 2 weeks, Brown, one of the respondent's foremen, discharged him because a fellow em- ployee reported that Brcich had called him a "scab." While Brcich admitted in his testimony that he did. refer to the employee as a "scab," there was apparently no disturbance caused by the occur- rence. In view of the respondent's attitude toward the U. A. W. members who were active in the strike, which is reflected throughout the record, we are of the opinion that his attitude was largely re- sponsible for Brcich's discharge. It is highly unlikely that Brcich. would have been summarily discharged without previous warning for such a minor offense if the respondent had not been- prompted by its desire to eliminate U. A. W. members from its employment. We find that the striking employees listed in Appendix B were denied reinstatement from June 24, 1937, until the dates of their respective reinstatement, as shown opposite their names on said Appendix B under the heading "Reinstated," and that, on the dates also indicated opposite their names on said Appendix B under the heading "Discharged,", they were discharged, because they "joined and assisted the U. A. W. and engaged in concerted activity in con- nection therewith, and that the respondent thereby discriminated in 21 The tabulations which we have heretofore referred to show that 124 of the striking employees were put back to work from August through November. Of this number only 40 were still employed on January 15, 1938. During the same period, out of the 348 old employees who went back to work during the strike, 296 were still employed, and of the 185 new employees working on June 24, 1937, 132 were still employed. Disregarding the respondent's discriminatory method of computing seniority, it is also disclosed that many of the old employees who went back to work during the strike and who were retained had less seniority with the respondent than the employees listed in Appendix B who were laid off. - STEWART DIE CASTING CORPORATION 903 regard to their hire and tenure of employment, discouraging mem- bership in the U. A. W., and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.26 C The employees listed in Appendix C were contained in the list submitted by the U. A. W. and refused reinstatement on June 24, 1937, but were subsequently reinstated on the dates shown opposite their names on said Appendix C, and at the time of the hearing in Case No. C-577 were still in the respondent's employ. However, four of them, John Adrian, Charles Anusewicz, Con Buller, and Bernice Andrews, were laid off after the hearing in Case No. C-577, and the respondent is charged in Case No. C-869 With discharging them in violation of Section 8 (3) and (4) of the Act. We have in- cluded these four employees with the other employees listed in Ap- pendix C because they are named in the complaint, and testified, in Case No. C-577, and the factors governing the respondent's discrim- inatory refusal to reinstate them from June 24, 1937, until the re- spective dates when they were reinstated are the same as the other employees included therein. The facts relating to their subsequent lay-off offer problems calling for individual treatment under .a sub- sequent section herein. The factors upon which we based our findings that the employees listed in Appendix A and Appendix B were discriminated against within the meaning of Section 8 (3) of the Act by the refusal of the respondent to reinstate them on June 24, 1937, while at the same time" retaining in its employment the new employees hired dur- ing the strike, and many old employees with less seniority, are equally applicable to the employees listed in Appendix C and need not be restated. By discharging the employees hired for the first time during the strike, and displacing old employees with less seniority who had returned to work during the strike, all of the employees listed in Appendix C could have been given employment on June 24, 1937.29. Alex Ruff, included in Appendix C, testified that he was reinstated on October 8, 1937, only worked 2 days, and then quit because he did not like the way he was being "pushed around." In explaining what he meant by this 'statement, Ruff said that he was put back to work on the "bench," which was not the work he was doing prior 0 For the reasons stated in footnote 23, supra, in the case of William Schupolsky this conclusion is applicable only in so far as it applies to his discharge on the date indicated in Appendix B. a See footnote 20, supra . The analysis there is equally applicable to the employees now under discussion. 190935--40-vol. 14-58 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the strike ; that as soon as he started work, the "rate setter" timed him and complained that he was not completing the work rapidly enough; and that after he had worked 2 days he quit because of his dissatisfaction with the work. In the absence of more particular evidence indicating. discrimination, we conclude that Alex Ruff was not discriminatorily discharged on October 10, as alleged in the complaint. We have included him in Appendix C so as to cover the period when he was refused reinstatement from June 24, 1937, until October 8, 1937, but the charges ,is to discrimination in his subsequent lay-off will be dismissed. Elmer Galliart, also included in Appendix C, was reinstated on August 12, 1937. Prior to the strike, Galliart had been doing day work but when he was reinstated he was put on the night shift. After working until September, Galliart obtained a position working in the., daytime, which afforded him an opportunity to go to night school. He then gave the respondent a week's notice and quit his employment on September 15, 1937, in order to accept the new position that he had obtained. In view of this testimony, we con- clude that Galliart was not discharged on September 15, 1937, as alleged in the complaint, but that he voluntarily quit on that date. Like Ruff, we have included him in Appendix C so as to cover the period when he was refused reinstatement from June 24, 1937, until August 12, 1937, but the charges as to discrimination in the termina- tion of his employment on September 15, 1937, will be dismissed. We therefore find, in view of the foregoing facts, the above find- ings, and upon the record as a whole, that the striking employees listed in Appendix C were denied reinstatement from June 24, 1937, until the dates of their respective reinstatement, as shown in said Appendix C, because they joined and assisted the U. A. W. and engaged in concerted activity in connection therewith, and that the respondent thereby discriminated in regard to their hire and tenure of employment, discouraging membership in the U. A. W., and in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discharges in Case No. 0-869 The complaint in Case No. C-869 alleges that the respondent re- duced the hours of employment and thereafter discharged Bernice Andrews, and discharged Con Buller, Charles C. Anusewicz, and John Adrian, because of their membership in the U. A.. W. and for the additional reason that they gave testimony under the Act. The respondent contends that these four employees were laid off because of a necessary force reduction due to a recession in its business. STEWART DIE CASTING CORPORATION 905 - "Bernice Andrews, also known as Bertha Klysgewski, began her employment with the respondent in 1930 and was working in the shipping department at the time of the strike. She was a member of the U. A. W., participated in the strike, and was.an applicant for reinstatement on June 24, 1937. She was subsequently reinstated on September 7, 1937, and worked until February 21, 1938. On the latter. date her foreman stated to her that she was being laid off because business was slow. Edwin Sparr, foreman of the respondent's shipping department, testified that four female employees with less seniority were retained when Bernice Andrews was laid off, and that his reason for giving these employees preference in employment was because they had gone back to work during the strike and Bernice Andrews had not. In view of the testimony of Sparr; there can be no doubt that Bernice Andrews was laid off on February 21, 1938, instead of em- ployees having less seniority, because of her membership in the U. A. W. and participation in the strike. This was a clear violation of Section 8 (3) of the Act. There was no substantial evidence introduced in support of the charge that Bernice Andrews was discharged for giving testimony under the Act, or that there had been a discriminatory reduction in her hours of employment prior to her dismissal. For these reasons, the charges in the complaint alleging a violation of Section 8 (4) of the Act and a discriminatory reduction in her hours of employ- ment will be dismissed. We find that the respondent has discriminated in regard to the hire and tenure of employment of Bernice Andrews, thereby dis- couraging membership in the U. A. W., and interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Charles C. Anusewicz was first employed by the respondent in 1915, and was working as an operator in the die-casting department at the time of the strike. He was a member of the U. A. W., was re- fused reinstatement after the strike on June 24, 1937, and testified at the hearing in Case No. C-577 on January 31, 1938. Anusewicz was reinstated by the respondent in August 1937, and was there- after laid off on May 5, 1938. The respondent contends that Anusewicz was laid off because of lack of work, at a time when the entire night shift was dismissed, that the die-casting operators are employed on particular work, and that Anusewicz was laid off when a job for the International Har- vester Company, on which he was working, was discontinued. John Devlin, superintendent of the die-casting department, testified that there were approximately four different types of machines in 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation ' in the die-casting department of the respondent's plant, that Anusewicz operated a `B type" machine, and that he had been tried for about a week on the newest type "precision" machine but was unable to operate it. He admitted on cross-examination, how- ever, that it took several months for an operator to become pro- ficient on the new type machine. In explaining why ,Endean, an operator who had been discharged in 1936 for being "undependable," and who had returned to the respondent's employment during the strike, was retained when Anusewicz was dismissed, Devlin stated that Endean was engaged on a job for the Stewart Warner Corpora- tion, and that work on this job was still going on. The record discloses that approximately 14 operators with less seniority than Anusewicz were retained when he was laid off. A number of these operators were first employed 'by the respondent during the strike. Except for Endean, who admittedly operated the same type of machine that Anusewicz operated, the respondent made no attempt to explain why these employees were retained when Anusewicz was laid off. Evidence in the record indicates that sev- eral of these employees operated the same type of machine as Anusewicz, and no evidence was offered by the respondent that they were engaged in work that Anusewicz could not do. Furthermore, we .are not satisfied with Devlin's explanation for retaining Endean when Anusewicz was dismissed. In addition to having been dis- charged in 1936 for being undependable, Endean was reported for being "absent without leave" three times during a period of approxi- mately 6 months since his return to the respondent's employment. No evidence was introduced in any manner reflecting upon the record of Anusewicz during his many years of employment with the respondent. In view of the above facts, and the abundance of evidence in both proceedings herein showing conclusively the respondent's policy of giving preference to the "strike breakers" in the matter of employ- ment, no other conclusion can be reached than that Anusewicz was laid off on May 5, 1938, in preference to employees with less seniority, because of his membership in the U. A. W. and his activity in connection with the strike. We find that the respondent has discriminated in regard to the hire and tenure of employment of Charles C. Anusewicz, thereby dis- couraging membership in the U. A. W., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. No evidence was introduced in support of the charges that Anusewicz was discharged for giving testimony under the Act. Therefore, the charges in the complaint alleging a violation of Section 8 (4) of the Act as to him will be dismissed. STEWART DIE CASTING CORPORATION 907 John Adrian started work for the respondent in 1936 and was employed in the new tool department as a tool maker at the time of the strike. He was a member of the U. A. W., participated in the strike, and was refused reinstatement on June 24, 1937. Adrian was reinstated by the respondent on August 28, 1937, and thereafter dismissed on May 10, 1938. The respondent contends that Adrian was laid off due to a necessary force reduction. Adrian was elected financial secretary of the U. A. W. on March 4, 1938. Shortly thereafter, Adrian was transferred by the respondent from the day shift to the night shift and one Healy was transferred from the inspection department to take Adrian's place on the day shift. Adrian testified that the transfer to the night shift prevented his attendance at U. A. W. meetings which were held at night. He continued to work on the night shift until he was laid off on May 10, 1938. The record discloses that Nielsen and Hoffman, both tool makers, were employed by the respondent during the strike and were retained when Adrian was laid off. Nielsen had been employed at one time by the respondent .as it "boss" in the cleaning department, resigned from this position, and returned to the respondent's employment during the strike. Hoffman, however, was employed by the respond- dent for the first time during the strike. The respondent points to the fact that Nielsen and others in the department had a top "rating" in efficiency of "A" while Adrian was rated as "C" and infers that this was one of the factors considered in laying off Adrian in pref-. erence to other employees. Assuming that this factor influenced the respondent's decision to retain Nielsen in preference to Adrian, and applying the same test regarding Hoffman, we find that Hoffman came to work for the respondent for the first time during the strike, thereby having much less seniority than Adrian, and that his efficiency rating was the same as that of Adrian. Therefore, in the absence of any evidence to explain why Hoffman was retained when Adrian was laid off, and upon the facts set forth above, we conclude that the respondent followed its general practice, reflected throughout the record, of discrimination against members of the U. A. W. in laying off Adrian on May 10, 1938.30 We find that the respondent has discriminated in regard to the hire and tenure of employment .of John Adrian, thereby discotiraging membership in the U. A. W., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. For the same reasons indicated in the cases of Anusewicz and Bernice Andrews, we will dismiss the charges in 30 The record discloses that Hoffman was thereafter laid off on June 2, 1938. 908 DECISIONS OF NATIONAL LABOR RELATIONS , BOARD the complaint alleging a violation of Section 8 (4) of the Act as to Adrian. Con Buller was first employed by the respondent in August 1936,. in the maintenance department: He is classified on the respondent's employment record as a machinist and welder. Buller was a mem- ber of the U. A. W., was refused reinstatement on June 24, 1937, was. reinstated on July 9, 1937, testified in Case No. C-577 on January 31, 1938, and was thereafter laid off on May 31, 1938. The respondent contends that only two men who were generally classified as welders were in the respondent's employ in the main- tenance department on May 31, 1938, one on the night shift and one on the day shift. The respondent claimed that the entire night shift was discontinued on that date, and that for this reason Buller was dismissed, and Anderson, the welder on the day shift, • was retained. The record supports the contention of the respondent that there, were only two welders in the maintenance department on May 31, 1938, and that Buller was dismissed at the time when the entire night crew was laid off. Likewise, it appears that Anderson had more seniority with the respondent than Buller. An examination of the employment records of the respondent shows that two men, one designated . as a steamfitter and machinist, and the other as a ma- chinist, who had less seniority than Buller, were retained in the department at the time of Buller's dismissal. Neither of them,.how- ever, was employed for the first time during the strike. While Buller testified that he did general machine work as well as welding, it appears from his testimony that his duties were largely confined to gas welding.31 He made no claim at the hearing that he could do the work of the employee retained in the dual capacity of steamfitter. and machinist. The record is also silent as to whether Buller could do the work of the man retained as a machinist, except for his testi- mony that he did general machine work. Under the circumstances, we 'do not find that the charges in the complaint in Case No. C-869 are sustained with respect to Buller. Therefore, the allegations therein charging the respondent with having discriminated against Buller in violation of Section 8 (3) and (4) of the Act will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial "A man named Schneider was employed to do electric die welding on June 2, 1938, after Buller was laid off. However, it appears _ that ' this is specialized work' which Buller is not qualified to do. STEWART DIE CASTING CORPORATION 909 relation to trade, traffic, and commerce 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 REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. In order to remedy the respondent's illegal refusal to bargain, we will order the respondent to bargain collectively with the U. A. W. and, if understandings are reached, to embody such understandings in a signed agreement if so requested. Since the strike was continued from March 23, 1937, until June 24, 1937, because of the respondent's unfair labor practices, we will order the respondent to offer immediate reinstatement to their for- mer or substantially equivalent positions to the employees listed in Appendix A, those -listed in Appendix B and Bernice Andrews, Charles C. Anusewicz, and John Adrian, all of whom were dis criminated against as set forth above. In addition, the respondent will be required, upon application, to offer reinstatement to all other striking employees who have not been reinstated. The offers of reinstatement shall be without prejudice to seniority and other rights and privileges. Such reinstatement shall be effected in the following manner : All persons hired after March 23, 1937, the date the unfair labor practices commenced, and who were not on the pay roll as of that date, shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If thereupon, by reason of a reduction in the force of employees needed, there is not sufficient employment immediately available for the remaining employees, in- cluding those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without dis- crimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has hereto- fore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employ- ment 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. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that by refusing to reinstate the employees named in Appendix A on June 24, 1937, and at all times thereafter, by refusing to reinstate the employees listed in Appendix B from June 24; 1937; until the date indicated opposite their respective navies. on said Appendix B under the heading "Reinstated," and by thereafter discharging them on the dates also indicated opposite their respective names on said Appendix B under the heading "Discharged," by refusing to reinstate the employees named in Appendix C from June 24, 1937, until the dates indicated opposite their respective names in said Appendix C under the heading "Reinstated," and by discharg- ing Bernice Andrews, Charles C. Anusewicz, and John Adrian, the respondent discriminated in regard to their hire and tenure of em- ployment in violation of Section 8 (3) of the Act. They are entitled to be made whole for any losses they may have suffered by reason of the respondent's discrimination.32 Back pay shall be computed in the case of each employee on the basis of the amount each would have earned as wages during the periods during which each was denied employment, less the net earnings of etch during said period.33 As to the employees who are to be offered reinstatement, our Order will provide that each employee whose application for reinstatement is refused by the respondent in violation of the Order shall be en- titled to payment of a sum of money equal to that which he would normally have received as wages during the period from 5 days after the date of his application to the date of the offer of employ- ment or placement upon the preferential list as set forth above, less his net earnings 34 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Automobile Workers of America, Local 298, is a labor organization, within the meaning of Section 2 (5) of the Act. 8 For the reasons set forth in Matter of MoKaig-Hatch, Inc. and Matter of Western Felt Works ( supra, footnote 12), we would order the same remedy in this case irrespec- tive of our specific findings of a violation of Section 8 (3) of the Act, in order to restore the status quo existing prior to the commission of the unfair labor practices and thus to effectuate the policies of the Act. 83 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the unlawful refusal to reinstate him and the consequent necessity of his seeking employ- ment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 84 See footnote 33, supra. - STEWART DIE CASTING CORPORATION 911 2. The hourly and piece-rate production and maintenance em- ployees of the respondent, excluding supervisory and office employees, draftsmen, and watchmen, constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (a) of the Act. 3. United Automobile Workers of America, Local 298, was on -March 22, 1937, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. By refusing to bargain collectively with United Automobile Workers of America, Local 298, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment and terms and conditions of employment of the employees listed in Appendix A, Appendix B, and Appendix C, thereby dis- couraging membership in the U. A. W., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of -Section 8 (3) of the Act. 6. By-interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The foresaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) .of the Act. 8. The respondent has not discriminated in regard to the hire and 'tenure of employment of Irving Soden, Vernon Conrad, Joseph Prokupek, Frank Kisiel, Edmund Kica, and Bror Johnson, thereby discouraging membership in a labor organization, within the mean- ing of Section 8 (3) of the Act, and has not discriminated against Bernice Andrews, Charles C. Anusewicz, . -John Adrian,. and Con Buller because they gave testimony under the Act, within the mean- ing of Section 8 (4) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Stewart Die Casting Corporation, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Automobile Workers of America, Local 298, or any other labor organization of its employees, 912 DECISIONS OF NATIONAL LABOR. RELATIONS DOARD by refusing to reinstate or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of its employees; (b) Refusing to- bargain collectively with United Automobile Workers of America, Local 298, as the exclusive representative of all its hourly and piece-rate production and maintenance employees, excluding supervisory and office employees, draftsmen, and watch. men; (c) In any other manner interfering with, restraining, or coercing its employees iii the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act.. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to those employees listed- in Appendix A, those listed in Appendix B, and Bernice Andrews, Charles C. Anusewicz, and John Adrian immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "Remedy" above, placing those employees for whom em- ployment is not immediately available upon a preferential list in the mannet set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (b) Make whole the employees listed in Appendix A for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them on June 24, 1937, and at. all times thereafter, by payment to each of them, respectively,. of a sum of money equal to that which each would have earned as wages during the period from June 24, 1937, to the date of the offer of reinstatement, or placement on the preferential list, less his net earnings,35 if any, during said period, had the respondent reinstated him on June 24, 1937; (c) Make whole the employees listed in Appendix B for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them from June 24, 1937, until the dates indicated opposite their respective names in said Appendix B under the heading "Reinstated," by payment to each of them, respectively, of a sum of money equal to that which each would have earned as wages during said period, less his net earnings," if any, during said period, had the respondent reinstated him on June 24, 1937; make whole the em- 83 See footnote 33, supra. 80 See footnote 33,` supra. -STEWART DIE CASTING CORPORATION 913 ployees listed in Appendix B for any loss of pay they may have suf- fered by reason of their discharges on the dates indicated opposite their -respective names on said Appendix B under the heading "Dis- _charged," by payment to each of them, respectively , of a sum of money equal to that which he would have earned as wages during the period from the date of his discharge to the date of the offer of reinstatement, or placement on the preferential list, less his net earn- .ings,37 if any, during said period , had the respondent not discharged .him; make whole the employees listed in Appendix C for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them from June 24, 1937, until the dates indicated opposite their respective names on said Appendix C under the heading "Rein- stated," by payment to each of them, respectively , of a sum of money equal to that which each would have earned as wages during said period, less his net earnings'38 if any, during said period, had the respondent reinstated him on June 24, 1937 ; make whole Bernice Andrews; Charles C. Anusewicz, and John Adrian, for any loss of _pay they may have suffered by reason of their respective discharges, by payment to each of them, respectively, of a sum of money equal to that which he would have earned as wages during the period from the date of his discharge to the date of the offer of reinstatement, or placement on the preferential list, less his net earn- ings, if any, during said period, had the respondent not discharged him; provided, however, that the respondent shall deduct from the back pay due each employee under any section of this order a sum equal to that received by such employee for work done upon Federal, State, county, municipal, or other work-relief projects during the period for which back pay is due him under this Order, and shall pay over any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments financing such work-relief projects; (d) Upon application , offer to those employees who were on strike on March 23, 1937, and thereafter, and who have not since been fully reinstated, immediate and full reinstatement to their former or sub- stantially equivalent positions, without ° prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter , in said manner, offer them employment as it becomes available; (e) Make whole the employees referred to in paragraph 2 (d) above for any loss of pay they may suffer by reason of any refusal of S4 See footnote 33, supra. 89 See footnote 33, supra. •914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement or placement upon the preferential list required by paragraph 2 (d) above, by payment to each of them of a sum of money equal to that which each would normally have earned as .wages during. the period from five (5) days after the date of applica- tion to the date of the offer of reinstatement or placement upon the preferential list, less his net earnings during said period ; deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and paying over the amount so deducted to the appropriate fiscal: agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (f) Restore to the employees who were on strike on March 23, 1937, and who have already been reinstated, their seniority and other rights and privileges, without prejudice to them in any way because of their participation in the strike ; (g) Post immediately in conspicuous places in each department of the respondent's plant, notices stating that the respondent will cease and desist as aforesaid, and keep such notices posted until at least sixty (60)!days :from the date of such 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. AND IT IS FURTHER ORDERED that the allegations of the complaint that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to all the employees named therein who did not testify at the hearing or give depositions in lieu of testimony, and with respect to Irving Soden, Vernon Con- rad, Joseph Prokupek, Frank Kisiel, Edmund Kica, and Bror John- son, be, and they hereby are, dismissed; that the. allegations of the complaint that the respondent has engaged in unfair labor practices within, the. meaning of Section 8 (3) of the Act with respect to the dismissal of Con Buller on May 31, 1938, with respect to the termina- tion of Alex Ruff's employment on October 10, 1937, and with respect to the termination of Elmer Galliart's employment on September 15, 1937, be, and they hereby are, dismissed ; and that the allegations of the complaint that the respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (4) of the Act with respect to the discharges of Bernice Andrews, Charles C. Anusewicz, Con Bul- ler, and John Adrian, be, and they hereby are, dismissed. STEWART DIE CASTING CORPORATION APPENDIX A Anderson, Arnold L. Anderson, Harry N. Andrews, Stanley Bacul, Tony Bagrowski, Edward Barabas, Frank Bashitza, Tony Behrendt, Viola Behrendt, Walter Biedron, Frank Bien, Joseph Borowski, Roinan Brcich, Lazo Busa, Joseph Celli, Guido Christman, E. N. Christensen, Carl Colonna, Jerry Corolla, Frank Cyza, Edward A. Czarnecki, Frank Czarnecki, Stanley DeGrace, Edward Dellegrazie, Vito Ehrecke, Gustav Faust, Emil Finnestad, S. E. Finocchio, Tony Fitt, Joseph Franklin, Jack Friberg, R. J. Galat, Mike Galat, Walter Gawron, LeRoy Go1z, Walter Gustafson, Oscar Hagen, Ernest Hansen, Wade Hewitt, Charles Hogfelt, Arthur Hogfelt, Gunnar Jeschke, William C. Johnson, Fred Johnson, George Karlson, Edwin Kerr, Chester A. Kobyleski, Sophie Koe, Edward Krimmel, Fred Krock, Henry Kurfirst, Joseph Kutilek, Frank Latas, John Lechowicz, Fred Lechowicz, Stanley Leitza, John Leverence, John Levandoski, Joseph Lietza, Victoria Litza, Walter Maciaszek, John Markowitz, Lottie Meister, Emil Meister, Gilbert Melom, Carl H. Metke, Arthur Migola, Stanley Morat, George Mazur, John Newman, Catherine Nielsen, Randolph L. Olson, Lars Off, Wm. H. Peterson, Carl Peterson, Bert Pinta, James Polan, Oliver Price, August Priebe, Clarence R.' Raczynski, Stanley Rambert, Steve Ray, Casimir Reuland, Carl Reuland, Nicholas Schebo, Siguard Schebo, William A. Schultz, Walter Schuman, Paul 915 916 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD Schwartz, Edward Seidler, Mel Sheehan, Arthur F. Spencer, James J. Strewe, John N. Strom, Gunnar Stritzel, Chester Styles, Clarence Swiatek, Frank Swirski, Tony Szirwint, Andro Taflinski, Henry Thomson, James Tomaso, Patrick A. Tomaso, Anthony Topolski, Walter F. Tyrcha, Joseph Tyrcha, John Waltos, Stanley Westphal, Leslie White, Margaret. Wodzien, Stanley Wojciechowski, Joseph Wright, Albert J. Zinkiewicz, Zygmunt Naive Reinstated Discharged Andresen, Marshall Alfred----------------------------- 8-27-37 1- 3-38 Bashitza , Daniel--------------------------------------- 10-13-37 11- 4-37 Bednarczyk, Henry------------------------------------ 9-27-37 11-12-37 Brchak, Chas ------------------------------------------ 8-15-37 12-11-37 Brostek, Frank----------------------------------------- 9-27-37 12-17-37 Brcich, Nick------------------------------------------- 9-28-37 10-12-37 Buresh , Clarence-------------------------------------- 10- 4-37 11-13-37 Chocin, Karol J------------------------------------------ 7-17-37 12-28-37 Daniels, Ivie------------------------------------------ 10-12-37 11-12-37 Evans, Emrys -----------------------------------------. 8- 3-37 12- 3-37 Fisher , Wm-------------------------------------------. 8- 8-37 1- 6-38 Foltman, Walter J------------------------------------- 10- 6-37 10-18-37 Francek, Stanley--------------------------------------. 10- 4-37 11-15-37 Geyer, Malcolm---- ------------------------------------ 10- 5-37 11-12-37 Gezelle, Peter-----------------------------------------. 10- 8-37' 11- 1-37 Jakubowski, Joseph-----------------------------------. 10- 7-37 11-12-37 Johnsen, Robert--------------------------------------- 10-11-37 11- 6--37 Kyak, Peter-------------------------------------------- 10- 7-37 11-26-37 Klamczynski , Steve------------------------------------ 10- 6-37 12-29-37 Kordek, John-----------------------------------------. 10- 4-37 11-12-37 Knapp, Emil-------------------------------------------- 10-15-37 12-15-37 Kranz, Benny -- ------------ _--------------------------- 7-14-37 11-12-37 Krzywda, Alex--------------- ----------------------- 10- -37 11-30-37 Legar, Joe-------------------------------------------- 8-12-37 8-18-37 Lundstrom , Bror--------- ----------------------------- 10- 6-37 12-23-37 Mack, John, Jr------------------------------------------- 10- 5-37 10-18-37 Majewski , Leo----------------------------------------- 10- 4-37 11-12-37 Martin, John-----------------------------------------. 10-13-37 12-27-37 Mondro, Albert---------------------------------------- 10- 7-37 11-12-37- Mrozek, Tony----------------------------------------- 10- 4-37 10-16-37 Nogaj, Stanley---------------------------------------- 10- 6-37 10-14-37 Obuchowski , Frank-- ----------------------------------- 10- 4-37 11-12-37 Polan, Alfred-----------------------------------------. 8-23-37 11- 9-37 Rebelski , Rose----------------------------------------- 9-30-37 11-12-37 Sadowski , Bruno-------------------------------------- 9- 8-37 12- 9-37 Schupolsky , - Wm. ----------------------------------------- 6-12-37 12-31-37 STEWART DIE, CASTING CORPORATION 917 Name Reinstated Discharged Siatka, Frank----------------------------------------- 10- 6-37 11-12-37 Szymanowski, Frank---------------------------------- 10-12-37 10-23-37 Tomaszewski, Joseph J--------------------------------- 8-20-37 12-18-37 Villa; Joseph ------------------------------------------- 9-22-37 11-30-37 Zukowski, -Nick ---------------------------------------- 1.0-1.4-37 1- 8-38 APPENDIX C Name Reinstated Name Reinstated Adrian, John--------------- 8-28-37 Cyza,'Joseph ---------------- 8-11-37 Anu ewlcz, Charles--------- 8-25-37 Galliart, Elmer------------- 8-12-37 Andrews, Bernice----------- 9- 7-37 Jensen, Willi---------------. 7-16-37 Buller, Con----------------- 7- 0-37 Kondracki, Stanley---------- 9- 1-37 Chervenka, Fred------------ 7-16-37 Ruff, Alex------------------ 10- 8-37 Clark, Frank R-------------. 8-23-37 MR. WILLIAM M. LEISFRSON took no part in the consideration of the above Decision and Order. [SAME TITLE] AMENDMENT TO ORDER. August L3, 1939 - On August 22, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Order in the above-entitled proceeding. The Board hereby amends its Order by deleting paragraphs (g) and (h) of Section 2, and by inserting, immediately after paragraph (f) of Section 2, the following new paragraphs (g), (11), and (i) : (g) Upon request, bargain collectively with United Automobile Workers of America, Local 298, as the exclusive representative -of all its hourly and piece-rate production and maintenance employees, excluding supervisory and office-employees, draftsmen, and watch- men, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on such matters, embody said understanding in a signed agreement; (h) Post immediately in conspicuous places in each department of the respondent's plant, and keep.posted for at least sixty (60) days from the date of posting, notices stating that the respondent will cease and desist in the planner set forth in 1 (a), (b), and (c) and that it will take the affirmative action set forth in 2 (a), (b), (c), (d), (e), (f), -and (g) of this Order; (i) 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. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Amendment to Order. 14 N. L. R. B., No. 70a.