Pacific Gas Radiator Co.

In the Matter of PACIFIC GAS RADIATOR COMPANY 1 and AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA, LODGE No. 1981, THROUGH STEEL WORKERS ORGANIZING COMMITTEE, C. C.I.O. Case No. C-1262.-Decided March 13, 1940 Heater Manufacturing Industry-Interference, Restraint , and Coercion: ques- tioning employees as to their union membership ; informing employees without basis that union employees would not be permitted to work as long hours as non- union employees ; questioning employees as to number of hours they would prefer to work when employees had selected exclusive bargaining agent ; instigating and participating in unsuccessful attempt to influence employees to join a local union to be formed in the future-Collective Bargaining : charges of failure to, dismissed-Discrimination : allegations of, dismissed as to two employees, not sustained by evidence ; found as to four employees , one discharged , other three laid off, all refused reinstatement, because of union membership and activities- Reinstatement Ordered: discharged employees-Back Pay: awarded. Mr. Charles M. Brooks, for the Board. Bettin, Painter cC Wait, by Mr. D. Howard Painter and Mr. Ray H. Kennison, of Los Angeles, Calif., for the respondent. Mr. Ken Hunter, Mr. Wayne Baxter, and Mr. William Dalrymple, of Los Angeles, Calif., for the Union. Mr. Benjamin E. Gordon, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, through the Steel Workers Organizing Committee, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated January 4, 1939, alleging that the Pacific Gas Radiator Company,, herein called the respondent, had engaged in and was engaging in unfair labor practice, 'Incorrectly designated in caption of complaint as "Pacific Gas Radiator Co- 21 N L. R. B., No. 60. 630 PACIFIC GAS RADIATOR COMPANY 631 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. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and upon the Union. - With respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent refused to bargain collectively with the Union as the duly authorized representative of its employees in an appropriate unit; (2) that the respondent discouraged membership in the Union by discriminating in regard to the hire and tenure of em- ployment of seven named employees; and (3) that by these and other acts the respondent interfered with, restrained, and coerced its em- ployees in the exercise of their right to self-organization and to engage in concerted activities with other employees for their mutual aid and protection. On January 28, 1939, the respondent filed its answer; admitting the allegations in the complaint with respect to the nature of its business and interstate commerce and that the Union represented a majority of the employees in an appropriate bargaining unit, but denying the com- mission of the alleged unfair labor practices. Pursuant to notice, a hearing was held at Los Angeles, California, from January 26 to February 16, 1939, before John P. Lindsay, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, the Union by its representa- tives ; all participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the Board's case, counsel for the Board made a motion to conform the pleadings to the proof, which was granted by the Trial Examiner. During the hear- ing, counsel for the Board also moved to dismiss the complaint in so far as it related to the discharge of Leslie Baker.2 The Trial Examiner granted the motion without prejudice. During the course of the hear- ing, the Trial Examiner made rulings on other motions and on objec- tions to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were, com- mitted. The rulings are hereby affirmed. On April 20, 1939, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon the respondent and the Union, finding 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 Act. He recommended, inter alia, that the respondent cease and desist from engaging in unfair labor practices; that it offer to C. J. Owen, Charles Mills, Harry, M. 2 Improperly designated in the complaint as Wesley Baker 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Watson, Wayne Baxter, and Clyde McMinn immediate and full rein- statement to their former positions without prejudice to their seniority and other rights and privileges; that it make whole the above-named employees for any loss of pay suffered by them by reason of the re- spondent's discrimination in regard to their hire and tenure of em- ployment; and that, upon request, it bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. The Trial Examiner also found that the respondent had not discriminated in regard to the hire and tenure of employment of James Butkiss. On May 13, 1939, the respondent filed exceptions to the Intermediate Report, and a request for oral argument before the Board in Washing- ton. Pursuant to notice, duly served upon the parties, a hearing for the purpose of oral argument was scheduled to be held before the Board in Washington, D. C., on November 7, 1939. None of the parties ap- peared. The Board has considered the exceptions to the Intermediate Report and, save for those exceptions which are consistent with the findings, conclusions, and order hereinafter set forth, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Pacific Gas Radiator Company, a California corporation, operates a factory and a foundry at Huntington Park, California, and has an office and showroom at Los Angeles, California. The respondent manufactures gravity and blower furnaces, forced-air units, blowers, unit heaters, floor furnaces, gas steam radiators, radiant heaters, and water heaters. In the manufacture of its products it uses as raw materials steel, pig iron, coke, fittings, valves, etc. The finished prod- ucts are sold through representatives, salesmen, jobbers, and dealers in the State of California and States other than the State of Cali- fornia. The respondent employs approximately 255 employees, of which number 205 are production and maintenance employees. During the first 6 months of 1938 the respondent purchased raw materials valued at approximately $144,000, of which amount ap- proximately $44,000 was paid for materials shipped to the respondent from States other than the State of California and from foreign countries. During the same period sales in the amount of approxi- mately $145,000, out of a total of approximately $444,000, required shipments of finished products to States other than the State of California and to foreign countries. During the last 6 months of 1938 approximately 30 per cent of the raw materials used by the PACIFIC GAS RADIATOR COMPANY 633 respondent were shipped to it from States other than the State of California and foreign countries, and approximately 33 per cent of its finished products were shipped to States other than the State of California and to foreign countries. II. THE ORGANIZATION INVOLVED Thu Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, is an affiliate of the Congress of Industrial Organizations, and is a labor organization within the meaning of the Act. It admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Prior to July 1937 the employees of the respondent were organized by Local 188 of the International Union, United Automobile Workers of America. The United Automobile Workers of America turned over its local to the Steel Workers Organizing Committee on or about July 8,1937, and Lodge No. 1981 of the Amalgamated Associa- tion of Iron, Steel & Tin Workers of North America was formed. During the month of July 1937, notices were posted in the plant announcing a meeting of all employees in the shipping room. The meeting was held during working hours and was first addressed by Al Menig, purchasing agent of the respondent and the brother of Clifford Menig, secretary-treasurer of the respondent. Menig stated in substance that the respondent had neglected the employees for quite some time; that there was new blood in the personnel of the respondent and that the respondent was going to try to take care of the social needs of the employees. In accordance with this idea he suggested a picnic, a free dance, and the formation of a soft-ball team. He stated that the company would furnish equipment for the soft-ball team, which it in fact did. When Menig completed his statement he announced that certain other men were coming to address the employees but that,they had not yet arrived. Shortly thereafter a man named Williams and another unidentified man arrived. Williams and the other man, both of whom spoke to the employees, said in substance, that there were shortcomings in the heating industry locally and a necessity for organization; that they would present an organization to the workers which would be responsible and which the A. F. of L. would accept; that the initiation fee would be $1.50 and dues 50 cents a month if the employees joined the organization immediately, but that, if the matter was put off until August, it would cost the employees $3.00 to get €34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such a union. Several executives of the respondent were present at this meeting. We find that the respondent, by the foregoing acts, instigated and participated in an attempt to form a union among its employees. On July 28, 1937, a consent election was conducted under the supervision of the Regional Director, and a majority of the re- spondent's production and maintenance employees, exclusive of office, clerical, sales, and supervisory employees, selected the Union as their bargaining representative. As a result of the election, the Union was designated as the exclusive representative of all the above-men- tioned employees of the respondent for the purposes of collective bargaining. During the period from September 7, 1937, until Sep- tember 26, 1938, various meetings were held between representatives of the respondent and representatives of the Union for the purpose of negotiating a contract. These meetings will be discussed in detail below. During the latter part of April 1938, while the representatives of the respondent were meeting and negotiating with representatives of the Union with respect to a contract proposed by the Union, which included a provision for a 40-hour week, Anger, who succeeded 'to' the position of superintendent of the plant about April 1, 1938, ques- tioned employees as to whether or not they were members of the Union and whether they would work 40 or 48 hours. At the same time Anger told various of the employees that union men could only work 40 hours a week but that "non-union men could work whatever was necessary to keep the work going." Anger questioned a number of the employees in this manner and made a notation on a piece of paper after receiving their answers. Although Anger denied that he asked employees whether or not they were members of the Union, he admitted having questioned them concerning whether or not they would work 40 hours or 48 hours. He testified that he could not recall whether or not he told the employees that the union employees would be limited to a 40-hour week while the non-union employees would be permitted to work up to 48 hours a week. Anger's testimony must be considered in the light of certain other evidence.' Between April 1 and 14, 1938, Foreman Hurd told C. J. Owen, an employee, that "Mr. Anger was put in there as Superin- tendent, purely to cut wages and break up the union." He told Owen further that if the men did not do something about it, that Anger would accomplish his purpose. On April 14, 1938, Hurd again told Owen that if the men "didn't do something about Mr. Anger that he (Anger) was going to break up the union in the shop." On April 27, 1938, Joe Marchand, purchasing agent for the respondent, told Owen that "the day before he had gone to dinner with Mr. Anger and Mr. Anger had told him in detail about how he was going to PACIFIC GAS RADIATOR COMPANY 635 break up the union in that plant." In the light of this evidence and the entire record we do not credit Anger's denials. We find, as did the Trial Examiner, that Anger engaged in the activities recited in the preceding paragraph. We find that the respondent, by questioning its employees as to their membership in the Union, by informing its employees that members of the Union would not be allowed to work as long as non-union employees, by questioning its employees as to whether they would work 40 or 48 hours a week at a time when hours of work was a subject of collective bargaining negotiations with the Union, and by instigating and participating in an attempt to, form a union among its employees, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination with regard to hire and tenure of employment The complaint alleged that the respondent discriminated in regard to the hire and tenure of employment of C. J. Owen, Charles Mills, Wayne M. Baxter, Harry Moore Watson. Clyde McMinn, James Butkiss, and Leslie Baker. At the hearing, on motion of counsel for the Board, the complaint was dismissed, without prejudice, in so far as it related to Leslie Baker. We turn to a consideration of the circumstances surrounding the termination of the employment of each of the remaining employees. C. J. Owen was employed by the respondent in February 1937 assembling water heaters. He was paid 40 cents an hour. Two months later he was transferred to painting on a part- time piece- work basis with a base rate of pay of 45 cents an hour. Thereafter he was transferred to full-time painting, which job he performed until his discharge on April 22, 1938. Around September 1937 his base rate was increased to 50 cents per hour and he earned an average of 85 cents per hour. During the last 4 months of his employment, Owen's earnings were higher than during any other period of his employment. Owen joined the United Automobile Workers of America in the spring of 1937. When the Union' was formed he became one of the three shop grievance committeemen. His duties included taking up grievances of employees and discussing them with the superintend- ent, which he did on occasion. Owen's activity in the Union .was well known to the respondent. On the morning of April 21, 1938, Owen and two other employees, Virgil Bartlett and Joe Donaldson, were standing at Owen's paint booth having a drink of whiskey from a bottle owned by Owen. Superintendent Anger passed by, and as he did so he saw Owen 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taking a drink out pf the bottle. Anger walked on, about 2 or 3 feet, then turned and went to Owen, saying, "What: Are you boys drink- ing here?" Owen replied, "Well, once in a while around pay day the boys have a bottle here." Anger said, "Is that all" and Owen replied, "It is." Anger then said, "All right," and left. The next afternoon, on April 22, 1938, about 10 minutes before quitting time, Anger and Foreman Frank Hunter came to Owen and told him that he was being discharged. Owen inquired why and was told by Anger, "Drinking on the job." Owen replied, "You have no rule against drinking on the job and I can't violate a rule that isn't in' existence." , Anger replied, "That is understood," and left. Neither Bartlett nor Donaldson were discharged. On April 23, 1938, a committee of the Union, including James Butkiss, Charles Mitchell, Leroy Brown, and others, had a conference with Anger, at Anger's request, regarding the rumor of a strike that Anger stated he had heard. At this conference Owen's discharge was discussed. Anger stated he would put Owen back to work on Monday and told Butkiss to tell Owen so. At the end of the confer- ence Anger talked over the telephone with Pat Commorre, an official of the Steel Workers Organizing Committee. He told Commorre that he was putting Owen back to work on Monday. On the witness stand Anger denied telling the committee or Commorre he would take Owen back, but stated that he told the committee he would think the matter over. In view of Anger's subsequent testimony, the findings of the Trial Examiner, and the entire record, we do not credit Anger's denial. - On Monday, April 25, the Union formed a picket line in front of the respondent's plant at about 7: 00 o'clock in the morning. The picketing was undertaken as a protest against what the Union felt was the failure of the respondent to negotiate with the representatives of the Union in good faith. The plant was picketed until it was time to work. Anger was present during the picketing and saw Owen in the picket line. Anger talked with Commorre who was also present. Commorre told Anger that the picketing was just a demonstration and that the employees would probably go to work at opening time if the respondent decided to negotiate in good faith. Anger replied, "I will assure you, we will." Owen reported to work at opening time, and told Anger that Butkiss had informed him that Anger had agreed to reinstate him and that he was to report for work. Anger replied, "Well, I don't know. I have changed my mind. I'll have to think it over." Owen told Butkiss of his conversation with Anger. Butkiss and Brown went to see Anger later in the day and asked him if he wanted Owen to go back to work. Anger replied "No," and said, "After seeing Mr. Owen in the picket line, I talked to Mr. Hartfield, [president of the respondent] and we decided not to put PACIFIC GAS RADIATOR COMPANY 637 him back to work." On cross-examination Anger testified that he became clear in his mind about not taking Owen back "when they broke their word with me-the fellows who went on a strike." He also admitted that he may have mentioned to Brown and Butkiss that Owen was in the picket line. The respondent contends that it discharged Owen because he was a "bad influence" and for "falling down on his work." 3 It is clear from the entire record, and we find, that Owen's work was always satisfactory. It is also clear from an examination of the testimony that the respondent had no rule against drinking during working hours, that foremen as well as the men drank while on duty. Anger admitted that Foreman Hodgon had told him that not only Owen but others drank on company time. Anger testified that Hodgon said he drank with Owen some times and that Owen shamed people into it by calling them names if they refused. He admitted, however, that Hodgon had said not only Owen but others had accused employees of being "cheapskates" for not taking a drink. Foreman Hodgon admitted asking Owen for a drink on several occasions, and that on several occasions he contributed with Owen to the purchase of whiskey that Owen brought into the plant. He testified further that he had seen Anger take a drink at the plant and that he had seen him with a bottle in his possession. We find as facts the admissions and testimony of Anger and Hodgon recited above. The evidence also shows that during Christmas week of 1938 a party was held in the plant where there was general drinking, including drinking by the foremen and the superintendent. Prior to the party the purchas- ing agent of the respondent gave the men a list of liquors and prices in order that employees could purchase the liquor through the re- spondent at wholesale prices. It is clear, moreover, that individuals engaging in conduct similar to that of Owen were not ordinarily dis- charged.4 Under all of the circumstances the respondent's contention cannot be credited. We find that the respondent discharged C. J. Owen on April 22, 1938, and thereafter refused to reinstate him because of his member- ship in and activity on behalf of the Union. We find further that the respondent, by discharging and refusing to reinstate Owen, dis- criminated in regard to his hire and tenure of employment and $ The respondent called Fiank Griffin , the head watchman , and w. L. Johnson, the night watchman, to show that Owen was drunk at the close of work one day during March 1938. Their testimony , to that effect , was in direct conflict with that of Owen. We find it unnecessary to resolve the conflict since it is clear that neither Griffin nor Johnson reported the incident to any of the respondent 's officials prior to Owen's dis- charge, and it could not, therefore, have had any bearing on the decision to discharge Owen. 4 On one occasion , one of the respondent's truck drivers , who wrecked a company truck while driving under the influence of liquor and was incarcerated therefor , "was employed when he got out with no ifs, ands or buts." 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discouraged membership in a labor organization , and interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Charles Mills was employed by the respondent in the sheet-metal department in November 1936. He was paid 35 cents per hour. After a month he was transferred to the machine shop where he continued to work until he was laid off in November 1937. At the time his employment ceased his wage was 50 cents per hour. Mills was a member of the Union. At times he solicited employees to pay their clues. This was done during lunch hours in the plant but there is no evidence that the respondent knew of such activity. Mills' employment was terminated during the course of a general lay-off at the plant . About 30 other employees were laid off at about the same time as Mills, 2 or 3 of whom were employed in the machine shop. While some men with less seniority than Mills were retained, the respondent contends that it was due to the fact that the less competent and slower men and those unable to make their daily rate were laid off in preference to the more qualified men. The evidence substantiates the respondent 's contention in so far as it relates to Mills. We find that the respondent did not lay off Charles Mills because of his union membership or activity. Wayne M. Baxter was employed by the respondent on November 24, 1936, as a helper in the machine shop . He first started working on the drill press, drilling burners . Shortly afterwards he was shifted to a new job where his work consisted of "picking up material and delivering it, and moving lift trucks and boxes around the factory so that the employees could work on different articles between oper- ations." Part of the time he had an assistant . Baxter continued at this employment until he was laid off on December 6, 1937. Baxter joined Local 188 of the International Union, United Auto- mobile Workers of America, on April 23, 1937 , and was shop steward. His duties included the collection of dues and the handling of griev- ances in the machine shop , tool and die room, burner department, and gas steam room. In August 1936, Baxter became president of the Union. He was also a member of the negotiating committee and the grievance committee . His union activities were well known to the respondent. During August 1937, Frank Hunter, foreman of the machine shop asked Baxter if the Union was going to allow foremen to hire and fire men. Later in the month Hunter asked Baxter if he was "talk- ing union on the company's time." Upon Baxter's replying "no," Hunter told Baxter to "watch his step." After Baxter was elected president of the Union, Superintendent Marchand met him in the PACIFIC GAS RADIATOR COMPANY 639 plant as he was sweeping the aisles and said, "Say, Baxter, I see by the papers that you are getting to be quite a big shot now." Upon Baxter's replying, "Well, one thing leads to another," Marchand said, "It's all right if it doesn't lead too far." In October 1937, about a month after negotiations had commenced between the respondent and the Union looking towards the consummation of a contract, Hunter told Baxter that Superintendent Marchand wanted to see him. Marchand, in his office, showed Baxter the efficiency ratings of employees. Baxter told Marchand that he could not discuss the matter with him alone, that the rules of the Union did not permit him to do so. Marchand said, "Well, I wouldn't question you privately on it but I wanted to show you some of these figures." He showed Baxter that he rated around average, saying, "As far as your work is concerned I like it . . . I like you, but there is talk going around the plant that there is being a lot of union activity .. . on company's time . . . if too many reports come in to me that you are talking union on company time, I am going to be forced to fire you." Baxter explained that he did not talk about the Union on company time. He told Marchand that he could be counted on to "play ball" with the respondent and to give it a "square deal" but that "on the other hand these fellows have confidence in me and I am going to be faithful to their trust." Marchand replied, "You know there is a limit to what one man can do." When Baxter answered that he was going to approach as close to that limit as he could, Marchand said, "Just watch your step." We find that the respondent, by the activities of Marchand, as set forth above, inter- fered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act. Baxter was laid off on December 6, 1937. A day or so later, when he returned to the plant to turn in his badge, he saw Marchand in his office. Marchand told Baxter that he had had to lay off a num- ber of good men that he would like to have retained, that he did not know when business would pick up, and that most of the men who had been laid off would be returned, saying, "I expect you to be among the first of them." The Union requested a seniority list of the employees at the time of the December lay-off, which they did not receive until the latter part of January or early in February. Baxter, Owen, Brown, and Burke, composing the grievance committee of the Union, met with Superintendent Anger, who had replaced Superintendent Marchand, and Hartfield, the president of the respondent, in the plant office around April 1, 1938. They discussed Baxter's grievance. Baxter stated that at the time he was laid off employees with less seniority were retained. Anger advised Baxter that he was not familiar with his work but that he would see Foreman Hunter about it. Owen 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked permission to go with Anger to see Hunter or to have the group talk with Hunter but Anger refused. Anger, after seeing Hunter, stated, "Frank says he can't cut the mustard." Owen said it was funny that they had just found that out, since Baxter's work had always been satisfactory. Anger replied, "That settles it. There is nothing I can do." Hartfield agreed that there was nothing he wanted to do about it. The matter was again discussed in June 1938, in the presence of Brown, a Field Examiner for the Board, together with a committee of the Union. Hartfield, Clifford Menig, Anger, and Clark, the respondent's auditor, were present for the respondent. Hartfield said that Baxter would never work there again because Foreman Hunter said that he could not do the work. At this conference a question was raised about some allegedly unsatisfactory work performed by Baxter during the summer of 1937. With respect to this question, Baxter testified, without contradiction, that he had not faced even some burner tubes during the summer of 1937, but that other em- ployees using the same equipment obtained the same result because the wheel of the machine was worn out. The question of Baxter's reinstatement was discussed again at a conference attended by a representative of the Board, the union committee, and representatives of the respondent on September 26, 1938. The respondent again refused to return Baxter to work, apparently contending that Baxter's job had been eliminated. The union committee pointed out to the respondent its inconsistent state- ments with respect to Baxter's failure to secure reinstatement: first, lack of work; second, unsatisfactory work; and now, job elimination. The respondent now contends that Baxter was laid off for lack of work. It points to the fact that three other employees were laid off at the same time as Baxter to substantiate its contention. At the time Baxter was laid off he was replaced by Perry, another employee with less seniority, who had been working on a drill press and making radiators. In April 1938 Birch was occasionally transferred into the department to assist Perry in the work that Baxter had done. Subsequently, Perry was transferred to another job and Birch took Perry's place. Prior to Baxter's lay-off Birch had not been employed in this department. His transfer to another depart- ment to do trucking and clean-up work was contrary to the general policy of the respondent. Moreover, Birch did not know much about machine-shop work. We find that the work Baxter was performing was not diminished or slack at the time of his lay-off and has not been eliminated since that time. Frank Hunter, Baxter's foreman, testified that in March 1938, or about that time, Superintendent Anger asked him why he had laid PACIFIC GAS RADIATOR COMPANY 641 off Baxter but did not ask him about rehiring Baxter. He stated that he told Anger that Baxter was not a machine-shop man, but admitted on cross-examination that operating machines was not Baxter's regular job. Hunter testified further, and we so find, that Baxter's work was always satisfactory and that he had never found Baxter unwilling to do his work. Upon the basis of the foregoing facts and the entire record we find that the respondent laid off and in effect discharged Wayne Baxter on December 6, 1937, and has since refused to reinstate him, because of his membership in and activity on behalf of the Union, thereby discriminating in regard to his hire and tenure of employ- ment and discouraging membership in a labor organization, and that by said acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Harry Moore Watson was employed by the respondent about August 1936, as a die setter in the sheet-metal department. His work also involved the operation of punch presses. During the course of his employment until his lay-off in September 1937, his hourly wage rate was increased from 35 cents per hour to 60 cents per hour. About a year after he started to work for the respondent he was put in charge of the punch presses by his foreman, Adolf Schmidt. Watson joined the Union immediately following the election of July 28, 1937, and became a member of the wage-scale committee of the Union about August 15, 1937. His duties on the committee included contacting the employees to see what they would be willing to work for, "to set an hourly basis of pay for the employees." About 2 weeks after being put on the wage-scale committee, Wat- son was laid off for a period of a week by Foreman Schmidt. We find, in accordance with Watson's testimony, that Schmidt told Wat- son that he was being laid off because "orders had come from higher up that they had to cut down on expenses; that Watson was one of the highest paid men in the punch-press department so naturally I would be the first to go." Schmidt further stated that all of the employees would have to take a week off. After a week, Watson went back to work, taking the place of a man who resigned. After working a week he was laid off again, Schmidt again telling him that he had to cut down expenses. When Watson pointed out that the other employees were supposed to go off for a week, Schmidt replied, "that has nothing to do with it" and that he was only acting on orders. After Watson got his pay check he went in to see Schmidt and Superintendent Marchand concerning his lay-off, but since "they didn't have much to say" he went in to talk to Hartfield. Watson reminded Hartfield of the latter's promise to give steady work to 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those employees who had not left their work at a time in 1936 when there had been a demonstration. • While Watson ^-vas talking to Hartfield, Marchand came in and berated Watson and told Hartfield that Watson was "drunk and everything else." Watson testified that Marchand "run me down kind of terrible" to Hartfield. Wat- son does not drink. He testified, and we find, that the only time he ever took a drink in the plant was the day before Christmas when everyone in the plant was drinking. His testimony is uncontra- dicted. Hartfield told Watson that he would look into the question of his reinstatement and let him know what could be done. Watson never heard from Hartfield. Watson was present at the conference of representatives of the respondent and the Union held on September 26, 1938. At that time, Hartfield told Watson that he had not looked into the question of his reinstatement because Marchand had said that he was a drunk and he (Hartfield) did not want any drunks around. The next day Watson asked Anger for work and Anger said he would look into it and let him know, but Watson never heard from him. The respondent now contends that Watson was laid off because of a lack of work and because he had broken an expensive die. The uncontradicted testimony of Watson is that the die was broken by William Smith, and that Watson had nothing to do with it, and that Schmidt never told Watson that he was to blame for breaking the die. Although Anger testified that a few weeks before the hearing he asked Schmidt why he let Watson go and Schmidt replied, "be- cause of the broken die and that Watson set it," the respondent did not call Schmidt, who was still employed by the respondent, to testify. One of the respondent's records, entitled "Comments by Foreman," stated in substance that Watson was laid off because it was "under his indirect direction" that an expensive die was completely broken; that he was "hot tempered and not fitted for his work" ; and that "the foreman wanted to reemploy him when work was available - and could not find him." However, there is no evidence that the respond- ent tried to locate Watson. In fact, Anger testified that no effort was made to request Watson to come back to work. Watson still live3 at the same address as when he was discharged. The uncontradicted testimony further is that when Watson was laid off there was enough work to keep the punch press going for at least 2 weeks more. Moreover, since Watson's lay-off the respond- ent has hired a number of punch pressmen in the sheet-metal depart- ment. Watson ran a punch press prior to his lay-off. No new die setters have been employed by the respondent since Watson's lay-off. The respondent's contentions as to why Watson was laid off and not returned to work are inconsistent and unconvincing. PACIFIC GAS RADIATOR COMPANY 643 In view of all the testimony we find that Watson was laid off by the respondent on or about September 15, 1937, and was at all times thereafter refused reinstatement, because of his membership in and activity on behalf of the Union, and that the respondent has thereby discriminated in regard to hire and tenure of employment and dis- couraged membership in a labor organization, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Clyde McMinn was employed by the respondent on March 15, 1937, as a plater's helper in the plating department. His duties involved the "doing of copper, nickel, brass, and cadmium plating." During a slack period in April 1938, at McMinn's own request, in order that lie might make full time, he was transferred by Anger to the sheet- metal department operating a punch press. He returned to the plat- ing department on April 25, 1938, after the picket demonstration, having been informed by Foreman Schmidt of the sheet-metal depart- ment that Foreman Hurd wanted him back. Schmidt ' also told McGinn there was plenty of work in the plating department. Hurd interrogated McMinn about the demonstration, but McMinn stated that be knew nothing about it. Hurd also told McMinn that he now had plenty of work in the plating department. McMinn joined the Union, and became a member of its negotiating committee. In the latter capacity he met with representatives of the respondent on various occasions after September 7, 1937. He took part in the picket demonstration of April 25, 1938, and was otherwise active in the affairs of the Union. On April 27, 28, and 29, the negotiating committee of the Union, including McMinn, met with Anger, Hartfield, Menig, and Clark. representing the respondent, to negotiate an agreement.5 At the meeting on April 27, McMinn set forth the fact that some of the safety equipment in the plating department was unsatisfactory, that the rubber boots and aprons leaked, and that since the work involved handling chemicals, the faulty equipment was dangerous. McMinn raised the question because he had previously asked Hurd to furnish proper equipment, which the respondent customarily did, and Hurd had refused. The question was considered again on April 28. On May 2 Hurd notified McMinn that he did not have a job, that there was not enough work for him. McMinn called Hurd's attention to the fact that there was plenty of work, but Hurd did not reply. Charles Bradford, foreman of the heater-assembly department, promised McMinn work later in the week and on May 5 McMinn went to work for Bradford, pushing a truck, hauling heaters through the shipping room, and assembling heaters. McMinn worked a day The course of the negotiations are set forth in Section III C 3, infra 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or a day and a half for Bradford. While McMinn, on the last day of his employment with Bradford, was in the shipping room with a truckload of heaters, Hartfield passed by and looked at him. Hart- field then called Anger over, and talked with Anger while looking at McMinn. Upon McMinn's return to Bradford's department, he saw Anger talking to Bradford. When Anger left, Bradford told McMinn that Anger had called him down for having McMinn in the department and told Bradford that McMinn could finish out the rest of the day but that he could not work thereafter. That same evening the union negotiating committee, including McMinn, met with Hartfield, Menig, Anger, and Clark, and McMinn's dis- charge was discussed. Hartfield informed the representatives of the union that Bradford had no authority to hire any new men. The union representatives pointed out that McMinn was not a new man and that a notice had been posted in the mill that Bradford was a foreman. Hartfield replied that Bradford was not a foreman, but he did not question the fact that the notice had been posted. Brad- ford testified, and we find, that when Marchand was superintendent Bradford had been given permission to get help wherever he could in the shop without asking the superintendent's permission. Anger also contended at this meeting that McMinn had spoiled about 250 blowers. However, when the union committee asked to see the blowers Anger admitted that they were all right. Anger then men- tioned a broken die and said that McMinn had broken it. It is not disputed that a die had been broken, but it is clear that the break was caused by defective materials and not by the fault of McMinn. At the same conference McMinn asked Hartfield whether his work was satisfactory and Hartfield said that it was, that no complaints had been made, and that he had to let McMinn go because Hurd did not have the work for him. Hurd also testified that McMinn's work was satisfactory, and we so find. McMinn's case was next discussed at a conference between repre- sentatives of the Union and the respondent held on September 26, 1938. Anger left the conference, saw Hurd, and upon returning stated that McMinn's work was satisfactory but that the nickel work required more skill than McMinn had, but for McMinn to report the next day, that he would talk it over with Hartfield and would let McMinn know whether he would have his job back. McMinn told Anger that he had been doing the nickel-plating work for the past year of his employment. McMinn reported to Anger the next day and Anger said that he could not put him back to work at the time. McMinn accused Anger of stalling but Anger said, "You'll be put back to work before you know it. Mr. Hurd said he was going to put you back to work." McMinn left his new address but never PACIFIC GAS RADIATOR COMPANY 645 heard from the respondent . Anger admitted that although busi- ness picked up thereafter he did not consider hiring McMinn for temporary work. One of the respondent 's records entitled "Clyde McMinn-, Comments by Foreman," states "last man hired, good worker, but talks entirely too much and spends too much time wasting his own time and the time of others. No one employed to replace him. Present force been working short time." On September 26, 1938, the day that McMinn last requested and was refused reinstatement , the respondent hired J. H. Weaver, as a plater. Weaver was retained until some time in October. On October 3, 1938, the respondent hired A. W. Murray as a plater. He was still in the respondent's employ at the time of the hearing. Murray replaced Wood, who resigned to take a position with the Post Office Department. The respondent contends that McMinn was laid off for a lack of work. It introduced no records of the work performed in the plating department in support of this assertion but relied upon the statement of Hurd to that effect. We think the respondent's con- tention without merit. The record shows that on April 25, 1 week before McMinn was laid off , he was returned to the plating depart- ment from temporary work in the sheet-metal department and was told by Hurd and Schmidt , foreman of the sheet-metal department, that there was plenty of work in the plating department . McMinn testified that when he was laid off on May 2 there was more work coming into the plating department than there had been "in the last 3 months." He called Hurd's attention to this fact , but Hurd made no reply . The records of the hours worked by McMinn during the spring of 1938 substantiates his testimony that work was not slack at the time he was laid off. We find that McMinn was not laid off because work was slack. The respondent also contends that it did not refuse to reinstate McMinn because of his union membership and activity . It asserts that the only vacancy in the plating department was created by the resignation of Wood, an experienced plater, and that McMinn was not capable of filling his position . The record does not support this assertion . At the time McMinn was hired Hurd told him that he expected Wood to leave to take another job and that he wanted McMinn to learn plating so that he could take Wood's job when Wood left. The record clearly shows , and we find , that McMinn did the same type of work as Wood, and that he performed it in a satis- factory manner at all times. We find that the respondent laid off Clyde McMinn on May 2, 1938, and has since refused to reinstate him, because of his member- ship in and activity on behalf of the Union , thereby discriminating in 283032-41-vol. 21-42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard to his hire and tenure of employment and discouraging mem- bership in a labor organization, and that by said acts the respondent has interfered with, restrained, and coerced its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. James Butkiss commenced work for the respondent in February 1937 as an assembler. He worked as such until June or July 1937. He started at 40 cents an hour and was raised to 50 cents an hour in a general increase. In September or October 1937, Butkiss became a time-study man and his wage rate was increased to 65 cents an hoar, and later to 75 cents an hour. He joined the Union and was elected recording secretary at the first official election of officers, which position he occupied in April 1938. He took part in the demonstration on April 25, 1938, but did not participate in the picket line. Butkiss was laid off on May 3, 1938, because of the elimination of the time-study department. When Butkiss was first notified by Superintendent Anger of his lay-off, he told Anger that he had worked in the machine shop before working in the time-study de- partment. Anger told Butkiss that he would look into the question of placing him in the machine shop. A few days later Butkiss was given a job in the machine shop. We find that the respondent has not discriminated in regard to the hire and tenure of employment of James Butkiss. C. The alleged refusal to bargain collectively 1. The appropriate unit The complaint alleged that the production and maintenance work- ers employed by the respondent at its Huntington Park plant, ex- clusive of office, clerical, sales, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. The respondent in its answer admitted the foregoing allegation of the complaint. On July 28, 1937, an election was conducted by the Regional Director among the employees in the aforesaid unit with the express consent of the respondent and the Union. We have held in numerous cases where the parties in interest themselves have agreed upon a specified unit as appropriate for collective bargaining, that it was within the exercise of our discretion to find such a unit an ap- propriate one to effectuate the policies of the Acts We are of the opinion that a similar principle obtains here where the parties have 9 Hatter of Lone Star Bag and Bagging Company and Textile Workers Organizing Com- mittee. 8 N. L. R B. 244; Matter of North River Coal and Wharf Company and Inland Boatmen's Unton of the Atlantio and Gulf, 8 N. L R B 146 PACIFIC GAS RADIATOR COMPANY 647 consented to the conduct of an election by the Regional Director in a stated unit.' Accordingly, we find that the production and maintenance em- ployees of the respondent at its Huntington Park plant, exclusive of office, clerical, sales, and supervisory employees, constituted and con- stitute a unit appropriate for the purposes of collective bargaining, and that such a unit insures to the employees of the respondent the full benefit of their right to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The complaint alleged that on or about July 28, 1937, a consent election was conducted by the Regional Director at which a majority 8 of the respondent's employees in the afore-mentioned unit selected the Union as their representative for the purposes of collective bar- gaining with the respondent, and that by virtue of Section 9 (a) of the Act the Union is and at all times since July 28, 1937, has been the exclusive representative of all employees of the respondent in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment. The respondent in its answer admitted the truth of the fore- going allegations. At no time since has it contested the Union's right to be the exclusive representative of the employees in the unit herein found appropriate for the purposes of collective bargaining. We find that on July 28, 1937, and at all times thereafter, the Union was the duly designated representative of the respondent's employees in an appropriate unit, and pursuant to Section 9 (a) of the Act was the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The bargaining negotiations On September 7, 1937, the union negotiating committee met with the representatives of the respondent and presented a proposed con- tract covering wages. hours, and working conditions. They asked the respondent to consider the proposed contract and to meet with then again in 2 weeks to discuss it. On October 1, 1937, the parties met to discuss the proposed contract. Thereafter, until September 7 Matter of Harry Schwartz Yarn Co., Inc. and Textile Workers Organizing Committee, 12 N L R. B. 1139. 9 The record shows that at the consent election of July 28, 1937, 175 ballots were cast for the Union and 16 ballots against it. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 26, 1938, the parties conferred on about 15 occasions in an effort to conclude a contract, but no agreement could be reached. At the meeting on October 1 a detailed discussion was had of the proposed agreement. There was general agreement on some of the matters contained therein. The respondent refused to agree to the Union's proposal to increase wages 25 per cent and establish a mini- mum rate of 621/2 cents per hour, insisting that its financial condition would not warrant an increase in wages above existing rates and minimums. The respondent also rejected those portions of the con- tract providing for a 40-hour week, vacations with pay, overtime rates, the check-off of dues for the Union, and a modified closed shop. In connection with hours of work, the respondent asked for a 48-hour week during certain parts of the year since its business was seasonal. It agreed to submit a counterproposal on overtime rates. After several conferences, the respondent, on December 16, 1937, submitted a written counterproposal in the form of a letter to the Union. The respondent agreed to the provisions on recognition, seniority, adjustment of grievances, safety and health, furloughs, job transfers, and timing of operations. It rejected the provisions pro- viding for wage increases, vacations with pay, and the check-off of dues for the Union. Instead of an 8-hour day and 40-hour week with time and one-half for overtime, the respondent proposed a. 40-hour week for the first 8 months of the year, a 48-hour week for the remainder of the year, and time and one-tenth for overtime work. It proposed to pay time and one-half for work on Sundays and holi- days rather than double time as proposed by the Union. The re- spondent agreed to the section in the Union's proposal entitled "Man- agement" provided that the modified closed shop was deleted. It agreed also to the section on "Discharge Cases" except for the pro- vision for back pay to persons unjustly discharged. The respondent rejected the proposal for weekly pay periods, but agreed to pay its. employees on the day preceding a holiday when the regular pay day fell on a holiday. Further conferences were held after the respondent submitted its counterproposal. The principal point at issue between the parties was the question of a wage increase. The Union contended that the respondent's wage scale was lower than that of its competitors, and that the respondent could well afford an increase. The respondent contended, to the contrary, that it was paying higher wages than its competitors and that its financial condition would not warrant an increase. The Union requested that it be allowed to examine the- respondent's books "through a certified public accountant." The respondent refused this request but agreed to furnish the Union with certain of its financial statements. At subsequent conferences the, PACIFIC GAS RADIATOR COMPANY 649 respondent made available to the Union its profit and loss statements for the years 1926 to 1935, certain profit and loss statements of a more current nature, and its "Corporation Income and Excess-Profits Tax Returns" for the years 1936 and 1937. No agreement was reached on the question of wages. Further conferences were held at which the parties discussed many of the provisions of the proposed contract. On May 19, 1938, at one such conference, the respondent modified its original counterproposal by offering time and one-quarter for overtime instead of time and one-tenth. It also agreed to grant a vacation of 1 day to every employee working 2000 hours a year. On the question of hours, the respondent requested consideration for a 48-hour week for 2 months a year instead of 4 months a year. On September 26, 1938, the parties met for the last time. The respondent modified its previous vacation proposal by agreeing to give employees with 3 years of service an extra day of vacation. It altered its position on hours of work by requesting a 3-month season when a 48-hour week would be in effect. In addition, there was an intimation at this meeting that the respondent would be willing to give compensation to employees unjustly discharged. It does not appear that the respondent refused to meet further with the Union or was responsible for the termination of negotia- tions. Throughout the conferences the respondent made various counterproposals to the Union's demands, on several occasions re- ceding from its original position on an issue. The Union, on the other hand, never receded from its original position, but always rejected the respondent's counterproposals. Upon the basis of the foregoing, and the entire record in the case, we find that the respondent has not refused to bargain collectively with the Union. 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 relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices we shall order it to cease and desist from further engaging therein. We shall also order the respondent to take certain affirma- 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive action which we find necessary to effectuate the policies of the Act. We have found that the respondent, by discharging C. J. Owen, and by laying off Wayne M. Baxter, Harry Moore Watson, and Clyde McMinn, has discriminated in regard to their hire and tenure of employment. We shall therefore order the respondent to offer these employees reinstatement to their former or substantially equiv- alent positions and to make them whole for any loss of pay they may have suffered by reason of the discrimination against them by pay- ment to each of them a sum of money equal to the amount each of them normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings s during such period. We have found that the respondent has not discriminated in regard to the hire and tenure of employment of Charles Mills and James Butkiss. Accordingly, we shall dismiss the complaint in so far as it pertains to the alleged discrimination in regard to the hire and tenure of employment of Charles Mills and James Butkiss. We have also found that the respondent did not refuse to bargain col- lectively with the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981. We shall, therefore, dismiss the complaint in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. 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. Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent at its Huntington Park plant, exclusive of office, clerical, sales, and Y 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 his un- lawful lay-off or discharge, and the consequent necessity of his seeking employment else- where 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 prodded 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. Mat- ter of Republic Steel Corporation and Steel Wm kers Organizing Committee, 9 N. L R B 219, enf'd, as modified as to other issues, Republic Steel Corpo, ation v N. L R B,, 107 F. (2d) 472 (C. C. A. 3). PACIFIC GAS RADIATOR COMPANY 651 supervisory employees, constituted and constitute a. unit appropriate for the purposes of collective bargaining, within the meaning of Sec- tion 9 (b) of the Act. 3. Amalgamated Association of Iron,' Steel and Tin Workers of North America, Lodge No. 1981, was on July 28, 1937, and at all times thereafter has been, the exclusive representative of all the em- ployees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of C. J. Owen, Wayne M. Baxter, Harry Moore Watson, and Clyde McMinn, thereby discouraging membership in the Amalga- mated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining, or 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not discriminated in regard to the hire and tenure of employment of Charles Mills and James Butkiss, within the meaning of Section 8 (3) of the Act. 8. The respondent has not refused to bargain collectively with the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, within the meaning of Section 8 (5) 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, Pacific Gas Radiator Company, Los Angeles, California, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, affiliated with the Congress of Industrial Organizations, or any other labor organizations of its employees by discriminating in regard to hire and tenure of employment or any term or condition of employ- ment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form, join, or assist labor organizations, to bargain collectively through representatives 9f their own choosing, and to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to C. J. Owen, Wayne M. Baxter, Harry Moore Watson, and Clyde McMinn, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole C. J. Owen, Wayne M. Baxter, Harry Moore Watson, and Clyde McMinn for any loss of pay they may have suf- fered by reason of the respondent's discrimination against them, by payment to each of them, respectively, of a sum of money equal to that which he normally would have earned as wages from the date of such discrimination against him to the date of the offer of reinstatement, less his net earnings during such period; deducting, however, from the amount otherwise due to each of the said employees, monies re- ceived by each during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amounts so deducted to the appropriate fiscal agency of the Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places about its Hunt- ington Park plant, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) of this Order, that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order, and that the respondent's employees are free to become or remain members of Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Twenty-first 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 complaint, in so far as it alleges that the respondent discriminated against Charles Mills and James Butkiss in regard to their hire and tenure of employment, within the meaning of Section 8 (3) of the Act, and in so far as it alleges that the respondent refused to bargain collectively with the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1981, as the exclusive representative of its employees, within the meaning of Section 8 (5) of the Act, be, and it hereby is, dismissed.