Metal Hose & Tubing Co., Inc.

In the Matter of METAL HOSE & TUBING Co., INC. and UNITED RUBBER WORKERS OF AMERICA, LOCAL 162, C. I. 0. Case No. 0-1288.-Decided May 23,1940 Rubber Hose Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements ; circulation of petition for inside union and coercion of employees to sign ; statements of intention not to sign an agreement with the union ; attempts to induce individual employees to sign Balleisen contracts ; dealing with employees individually while conferring with union-Alleged Settlement Ag' cement: no effect given to, in view of subsequent unfair labor practices-Employer: responsibility of, for activities of supervisory employees; corporation now in hands of former president's executors and trustees, re- sponsible for its activities during president's lifetime-Unit App?opriate for Collective Bargaining: production and maintenance employees and machinists, excluding supervisory, shipping and receiving, sales, and clerical ; no controversy as to-Represcntatives: proof of choice: results of consent election; affiliation and change of name thereafter held no evidence of change in majority status; majority participation in strike held evidence of union's continuing majority- Collective Bargaining: (1) refusal to sign a written contract with union even if terms thereof were agreed upon; (2) distribution of notices of wage in- crease to employees individually while meeting and conferring with union ; (3) failure to submit counterproposals ; employer's duty : Act applies to execu- tors and trustees of estate ; contemplated sale of business, effect upon ; ordered to bargain with the union upon request and if understandings are reached to embody such understandings in a signed agreement if such is requested by the union-Str nke: precipitated and prolonged by refusal to bargain collec- tively-Discrimination: strikers : refusal of reinstatement to strikers who made application therefor ; dismissed as to certain individuals who failed to apply for reinstatement and those who were reinstated immediately after their appli- cation-Employee Status: strikers: status of, as participants in strike not changed by strikers temporary return to work-Reinstatement Ordered: strikers: displacement if necessary of employees hired to replace strikers; grounds for refusal of : strikers refusal of offers of reinstatement at reduced pay; strikers who returned to work temporarily in the mistaken belief that they were to receive their former rate of pay ; alleged sabotage and infraction of its rules, without merit-Back Pay: awarded. Mr. George Rose, for the Board. Wingate d Cullen, by Mr. Cyrus S. Jullien, Mr. Platt K. Wiggins, and Mr. Paul N. Turner, of Brooklyn, N. Y., for the respondent. Mr. Samuel L. Rothbard, of Newark, N. J., for Local No. 162. Mr. Woodrow J. Sandler, of counsel to the Board. 23N L R.B., No 119 1121 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF TIE CASE Charges and amended charges having been duly filed by United Rubber `Yorkers of America, Local 162, C. I. 0., herein called Local No. 162, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint, dated October 27, 1938, against Metal Hose & Tubing Co., Inc., Brooklyn, New York, herein called the respond- ent, 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. The complaint, as amended at the hearing, alleged, in substance : (1) that on or about June 24, 1938, and at all times thereafter, the respondent refused to bargain collectively with Local No. 162, al- though Local No. 162 had at all times since July 23, 1937, been the representative for collective bargaining of a majority of the respond- ent's employees in an appropriate unit consisting of all the produc- tion and maintenance employees and machinists of the respondent in its Brooklyn plant, exclusive of supervisory, shipping and receiving, sales, and clerical employees; (2) that on or about October 12, 1938, the respondent refused to reinstate 44 named employees who had gone on strike on July 20, 1938, because of the respondent's unfair labor practices and who had applied to the respondent for reinstatement on or about October 10, 1938, and that the respondent did so refuse because the said employees had joined and assisted Local No. 162 and engaged in other concerted activities for the purposes of collec- tive bargaining and other mutual aid and protection; and (3) that by the aforesaid and other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. A copy of the complaint and accompanying notice of hearing were duly served upon the respondent and upon Local No. 162. There- after the respondent filed its answer, denying the jurisdiction of the Board and denying that it had engaged in any unfair labor practices; in addition, the respondent in its answer interposed several affirma- tive defenses to the allegations of unfair labor practices. Pursuant to notice, a hearing was held at New York City from January 23, 1939, through February 15, 1939, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, the METAL HOSE & TUBING COMPANY, INC. 1123 respondent, and Local No. 162 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. At the opening of the hearing, at the close of the Board's case, and at the close of the hear- ing, the respondent moved to dismiss the complaint on the grounds that (a) only the third amended charge was annexed thereto, and not the original and first and second amended charges, (b) no copy of the Board's Rules and Regulations was annexed thereto, (c) the third amended charge upon which the complaint is based did not contain a clear and concise statement of the facts constituting the alleged unfair labor practices, and on other grounds. These motions were denied by the Trial Examiner. His rulings are hereby affirmed., At the close of the hearing the Trial Examiner granted a motion of the Board's attorney to conform the pleadings to the proof in regard to names. This ruling is hereby affirmed. During the course of the hearing the Trial Examiner made a number of rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings and finds that no prejudicial errors were committed. The rulings of the Trial Examiner are hereby affirmed. On March 1, 1939, the respondent filed a Memorandum with the Trial Examiner. On May 17, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all parties, in which he found 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 that the respondent be ordered to cease and desist from its unfair labor practices and to take certain affirmative remedial action. On June 9, 1939, the respondent filed exceptions to the Inter- mediate Report and to various rulings of the Trial Examiner, and on July 7, 1939, pursuant to leave granted by the Board to all parties, it filed a brief in support of its exceptions. Pursuant to request therefor by the respondent and notice to the respondent, Local No. 162, and their attorneys, a hearing was held before the Board in Washington, D. C., on December 5, 1939, for the purpose of oral 1 (a) Inasmuch as the third amended charge superseded the prior charges , and the com- plaint was based upon the third amended charge , service of a copy of the third amended charge was sufficient (b) The respondent failed to show that it had been prejudiced in any way by the Board's alleged failure to annex a copy of the Board's Rules and Regula- tions and , in fact, had a copy of the Rules and Regulations at the hearing. (c) The facts set forth in the third amended charge and the complaint were concisely and clearly set forth ; the respondent did not request service of a bill of particulars, and did not request any extension of time within which to meet any evidence introduced during the bearing 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument. The respondent and Local No. 162 were represented by counsel and participated in the argument. The Board has considered the exceptions filed by the respondent and, save as they are consistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent , Metal Hose & Tubing Co., Inc., is a New York corporation , engaged at its plant in Brooklyn, New York, in the manufacture , sale, and distribution of metal-lined and smooth-lined hose for gasoline pumps, with necessary couplings. During 1937 the respondent purchased all its raw materials within the State of New York. In the same year it sold 81 per cent of its finished products outside the State of New York. The respondent rents warehouses in three other States, for the distribution of its products. II. TIIE ORGANIZATIONS INVOLVED United Rubber Workers of America, Local 162, C. I. 0., is a labor organization, affiliated with the Congress of Industrial Organi- zations, herein called the C. I. 0., admitting to its membership all production and maintenance employees of the respondent, excluding superintendents, foremen, and other employees in supervisory capaci- ties. Local No. 162, before it became affiliated with United Rubber Workers of America, herein called the U. R. W. A., in October 1937, was known as Metal Hose & Tubing Co. Local 349, C. I. 0., herein called Local No. 349. Metal Hose & Tubing Co., Inc., Employees Collective Bargaining Committee, herein called the Committee, was a labor organization admitting to its membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background of the refusal to bargain collectively; interference, restraint, and coercion On June 28, 1937, the C. I. O. held an organizational meeting for the respondent's production employees, at which 80 employees "signed applications for the C. I. 0." and elected temporary officers.2 Al- though office workers had not been invited to attend the meeting, two of them, Harold Stein, a clerk in the office of Charles F. Herzog, the 2There were approximately 140 production and maintenance employees in the plant at this tune. METAL HOSE & TUBING COMPANY, INC. 1125 respondent's production manager, and Bill Hambler, son-in-law of the general manager, attended. When asked to leave they at first refused, but later left the meeting. The following day, Charles F. Herzog, the respondent's produc- tion manager, hearing of the meeting, asked Charles Antonelli, one of the union's temporary officers, to call the other temporary officers into the stockroom of the plant. Eight of the union leaders appeared in response to the call. Herzog had in his hand a copy of a C. I. O. leaflet that had been distributed to the employees by a C. I. O. rep- resentative the previous night, and told the men that he wanted to "make notes for the management.," The men told Herzog that they wanted ,a wage increase, seniority rights, vacations with pay, and "recognition of the union." Herzog told them that the respondent might "have something done" about hours of employment and wage increases, but that there would be "trouble" about seniority rights and that "under no circumstances will the company ever sign an agree- ment with any outside party." On or about July 1, 1937, the employees were called together by William D. Magagnos, the respondent's auditor. Herzog told the assembled employees, "I know that you fellows are organizing and I don't see why you fellows want to organize." He added that the company would not "recognize any third party." According to Ramon Rivera, one of the union officers, Magagnos then told the em- ployees: "I don't see why you fellows have to join any outside or- ganization. Most of you fellows have been with us a long time and we always have tried to treat you fair. As a matter of fact, we had intentions of giving you a raise." Rivera further testified that Magagnos thereafter told him in the presence of a small group of employees that he (Magagnos) did not see why employees had to join a union and pay dues to an "outside organization," adding, "We could have a union of our own and have our meeting place over here. And dues that you would pay, you wouldn't have to pay one dollar a month. You could pay a quarter or fifty cents and with that money have outings and parties between yourselves. After all, you don't know where that money goes. Those fellows ride in big cars, live in swell hotels and everything." Magagnos did not specifically deny at the hearing that he had made the first statement attributed to him by Rivera but testified that he did not "at that time advise the men against forming any union or joining any union." In view of subsequent uncontroverted testimony concerning anti-union state- ments made by Magagnos, we believe Rivera's testimony, as did the Trial Examiner, and find that the statement was made by Magagnos. Concerning the subsequent statements of Magagnos testified to by Rivera, Magagnos admitted at the hearing that he may have made them, as his "own opinion," to one or two employees outside the plant. 1126 DECISIONS OF NATIONAL LABOR RELA`iIONS BOARD On Friday, July 2, 1937, Magagnos again called in the union com- mittee and asked them what they desired that they "couldn't get with- out the aid of an outside union." He discussed their demands with them, and told them that "under no circumstances would he recognize any third party or sign any contract." Magagnos further said, "If you join a company union . . . with the same money that you have in your treasury we could run outings, have parties, and everything. We could have the parties right here in our own place." The same afternoon, John M. Oden, the respondent"s president, spoke to a corn- inittee of the union and reproved them for forming a union. He told them, "Most of you fellows have worked for us a good number of years, and I have worked side by side with many of you fellows, and it is a surprise to me that you are joining an organization . . . Why did you have to pick the C. I. 0.? Why couldn't you pick the A. F. of L. or form a company union?" Rivera testified that Oden and Magagnos, who was present at the meeting, thereupon engaged in the following colloquy : MAGAGNOS. I think I can grant them a five per cent raise and a week's vacation with pay. ODEN. Make it ten per cent. MAGAGNOS. Providing they join the company union. Rivera further testified that as the committee left Oden's office, Pat Rooney, an employee, said, "Couldn't we have these things without any union at all?" and that Magagnos replied, "No, there will have to be a union, but a company union." Magagnos at the hearing de- nied that anything was said at that time about the employees joining a company union. In view of Magagnos' other activities, however, and his statements in behalf of an inside union both prior and sub- sequent to this incident, we do not credit his denial, and find, as did the Trial Examiner, that Magagnos made the above-described state- ments. On the night of July 2, 1937, the C. I. O. held another meeting of the respondent's employees at 40 Ashland Place, Brooklyn, New York, for organizational purposes. Ezra Mott, the assistant produc- tion manager, Herzog, Walter A. Funke, a foreman, Sven Bergstrom, in charge of the respondent's metal-lining department, and a few office workers, including Harold Stein, attended the meeting. Over 100 employees were present. Herzog testified that he had been in- vited to attend by some of the employees. He refused to leave the meeting at the request of the organizer conducting it and the organ- izer thereupon declared the meeting adjourned. Amidst confusion, Herzog arose and read to the assembled employees an announcement of a wage increase which he claimed had been agreed upon by Mr. Oden and the union committee. He also told the employees that the METAL HOSE & TUBING COMPANY, INC. 1127 C. I. O. leaflet which had been distributed on June 28 was not printed in a union shop. He then left the meeting, followed by the other su- pervisory employees, the office employees, and several female employ- ees. There is testimony that as Herzog left he called upon all the employees to follow him, but Herzog denied this at the hearing. After Herzog's departure, the meeting was resumed and the formal organi- zation of Local No. 349 was completed. Magagnos testified that he had been asked by several employees around this time about how to form an inside union. In order to "get some information" for them, Magagnos went to the Brooklyn Chamber of Commerce the week following the meeting of July 2, 1937, and procured from L. L. Balleisen 3 forms of a contract between the respondent and "the duly elected collective bargaining committee consisting of the employees of the Metal Hose and Tubing Co., and each and every one of the employees of said Company . . ." The forms contained a space for each individual employee's signature and provided, among other things, that the employees would not go on strike for 5 years, that the employees had no right to demand a closed shop or a signed agreement by the respondent with any union, and that there could be no arbitration of the question of the propriety of the discharge of any employee.4 Magagnos admitted at the hear- ing that it was the respondent's intention to have each of the employees sign such an agreement. On July 8, 1937, Magagnos sent word to each department that he wanted a "new committee," composed of "different" representatives from each department, to see him in regard to the Balleisen contract. Members of the "new committee" were selected by the departmental foremen, and they called on Magagnos on the same day. Eduardo Vela, one of the members of the committee, testified that Magagnos told the committee that the C. I. O. was "a bunch of rats" and "communists" and that the purpose of the union was to "make the workers fight among themselves." Referring to the Balleisen con- tract, Magagnos told the committee that the Brooklyn Chamber of Commerce prepared the contract "to protect the worker from the C. I. 0." He added that he had called the meeting "to make a company union" and that the respondent would not sign a contract Magagnos testified that the name of the man at the Chamber of Commerce to whom he spoke was "something like Ballansen." It is apparent that he referred to L. L. Balleisen, industrial secretary, especially since the form of the contract that Magagnos procured was the familiar Balleisen contract. See Matter of National Meter Company and United Elec- trical, Radio and Machine Workers of America, Local 1223, 11 N. L. R. B. 320, and cases cited in footnote 7 therein. 4For use of similar contracts by employers involved in other Board cases, see National Licorice Company v. N. L. R. B., 60 Sup. Ct. 569, aff'g as mod, 104 F. (2d) 655 (C. C A 2). enf'g as mod. Matter of National Licorice Company and Baktnq and Confectionery Workers International Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. It. B. 537. See, in particular, cases cited in 60 Sup Ct. 569, 572, footnote 1. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the C. I. O. Vance Melton, another employee who had been selected by his foreman to represent his department, testified that Magagnos "explained very much we would be holding the bag in case we joined the C. I. O. union." Magagnos did not deny any of the above testimony of Vela and Melton and we find that he made the statements as testified to by them. At about this time Ezra Mott, the assistant production manager, suggested to Vance Melton that he persuade the employees to join an inside union. He told Melton, "If you play ball with the com- pany the company will play ball with you." Melton complained to Mott that he felt that he was being underpaid. Mott told him that he believed that he could arrange for an increase in pay for him. In accordance with advice he had received from Balleisen, Magag- nos prepared a petition for the formation of an inside union. On or about July 8, 1937, this petition was circulated among the employees by Ezra Mott and Walter Funke, a foreman. The two approached Alphonso Montalbano, an employee, who at first refused to sign, but finally did so, unwillingly. Joseph Contonzo, an employee, testified that on the same day he saw Mott and Funke approach Ramon Castaing, another em- ployee, who also refused to sign at first. Funke then said to him, "Haven't we treated you fair? You were working nights and we put you on days because you claimed you were sick." Contonzo told Castaing that he need not sign if he did not desire to, but Funke told Contonzo to "mind your own business." Castaing signed the petition. Vela testified that when Mott brought the petition to him, he refused to sign. Funke offered to give Vela's brother a job and said, "You sign, Eddie." Vela signed. Vela testified, "I signed because they offered me a job for my brother and my brother started to work next day at eight o'clock." On the same day Mott approached Joseph Reteguez and Thomas Interiere, two of the respondent's employees. Interiere, a member of Local No. 349, refused to sign the petition. Mott told them, "Well, tomorrow will be too late. Perhaps you fellows won't come in to work at all." He added that "the union wasn't any good," that it was "controlled by a bunch of communists," and that it was "only after . . . dues." Reteguez testified that he felt ill that night and told Mott that he wanted to "go home." Mott said to him, "All right. After you sign the paper you can go." Both Reteguez and Interiere then signed. Interiere testified, "I had to sign up. I was, afraid of my job." METAL HOSE & TUBING COMPANY, INC. 1129 Neither Mott nor Funke, who testified as witnesses on behalf of the respondent, denied any of the above testimony in their direct examination . During cross-examination Mott admitted that he had circulated the petition , but denied generally that he made any effort to persuade the employees to sign it. Funke testified on cross- examination that he had accompanied Mott "just to get the boys together for him" and that he (Funke ) "did not have the slightest idea" as to the purpose of the petition . ' He further testified that he had supplied Montalbano with a pen with which to sign the peti- tion but denied that he had sought to persuade either Montalbano or Castaing to sign the petition . In view of the detailed nature of the testimony concerning the activities of Mott and Funke in this respect, we do not credit the denials of either . Mott's general denial is inadequate to refute such detailed testimony , and is incredible, in addition, in view of Vance Melton's uncontradicted testimony that Mott urged him to persuade the employees to join an inside union. Funke did not deny all the testimony concerning his activities and his statement at the hearing that he "did not have the slightest idea" as to the purpose of the petition is likewise incredible . Finally, the failure of both Mott and Funke to deny any of the foregoing testimony in their direct examination is indication of the truth of such testimony. We believe the testimony of Montalbano , Contonzo, Vela, Reteguez , and Interiere concerning the activities of Mott and Funke in connection with the circulation of the petition for an inside union, and we find that the incidents occurred as testified to by the said witnesses. Herzog testified at the hearing that he had given the petition for an inside union to Mott to give to the inside union committeemen in each department and that Mott had acted contrary to his instruc- tions in circulating the petition instead of giving it to them. Even if this were true, however , the respondent is not absolved from responsibility for the circulation of the petition. Herzog's admitted instructions to Mott concerning the petition constituted an attempt on the part of the respondent to form an inside union, and it is immaterial whether the petition was circulated by Mott himself or by someone else at the respondent 's instructions and instigation. Furthermore, Herzog admitted at the hearing that he knew of Mott's personal circulation of the petition at the time it occurred and that he did nothing to counteract its effects . In any event, Mott was the respondent's assistant production manager, with the power to hire and discharge employees , and Funke was a foreman ; the respondent 1130 DECISIONS OF NATIONAL LABOR RELATTONS BOARD is responsible for their actions in this respect even in the absence of any instigation by Herzog.5 Just prior to July 14, 1937, a copy of the Balleisen contract was posted on the respondent's bulletin board, with a notice instructing all employees who wanted to sign it to go to Mr. Magagnos' office. On July 14, 1937, the employees stopped working in protest against such action. The respondent thereupon called a meeting of the employees at which Magagnos asked them, "What's the matter with this contract? I think it is better than what the union can get for you." None of the Balleisen contracts, however, were ever signed. On or about July 20 Magagnos said to George Michaels, an em- ployee, "What's the idea of you fellows wanting to join the C. I. 0.? Don't you know they are Communistic, radical, and just after the dollar that you pay them every month?" At about the same time a committee of Local No. 349 sought to negotiate with the respondent concerning the wages, hours, and working conditions of its employees, but the respondent falsely claimed that a majority of its employees had signed the Balleisen contracts and that Local No. 349 therefore was not a majority repre- sentative. Pursuant to an agreement between the respondent, Local No. 349, and the Committee, a consent election was held among the respondent's employees on July 23, 1937, under the auspices of the Regional Director. Of the 135 employees who voted,s 112 voted to be represented by Local No. 349, and only 23 voted for the Com- mittee. Thereafter, the respondent ceased its active attempts to forin an inside union. On July 26, 1937, a committee of Local No. 349 met with A. L. Wallace, a director of the respondent, and Magagnos to discuss with them wage increases, grievance machinery, and the signing of an agreement. Wallace and Magagnos informed the committee, how- ever, that they had "no full authority" to represent the respondent, and that the committee would have to confer with Oden. A con- ference with Oden was arranged for July 28, 1937, but on the morn- ing of that day Magagnos informed the union committee that Oden 5 See Swift & Company v. N. L. R. B., 106 F. (2d) 87 (C C A 10), enf'g as mod Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 041, and United Packing House Workers Local Industrial Union No. 800, 7 N L. R B 269, "here the Court said While the evidence showed that Middaugh, the plant manager , and Young, the plant superintendent, repeatedly warned against violations of the National Labor Relations Act and solicitation of union membership on petitioner's premises during working hours, they took no effective means to stop repeated violations of the Act Further- more, with respect to the acts of supervisory foremen, the doctrine of respondeat superior applies , and petitioner is responsible for the actions of its supervisory fore- men, even though it had no actual participation therein. There were 140 employees eligible to vote , comprising "all production employees except supervisory and clerical employees on the payroll as of July 7, 1937." METAL HOSE k TUBING COMPANY, INC. - 1131 would not be able to meet with them until the following day. On July 29, 1937, because they believed that the respondent was "stalling negotiations," most of the employees went on strike. On August 4, 1937, a conference was held between representatives of the respond- ent and of Local No. 349 at which one Mr. Reily, then the respond- ent's attorney, stated that the respondent would not sign any agree- ment with Local No. 349. On August 6, 1937, the respondent in an unsigned memorandum, recognized Local No. 349 as the "exclusive bargaining agency of its employees," granted the employees a wage increase, and stated that it would not - discriminate against any employees because of their membership in Local No. 349. On August 9, 1937, the strikers returned to work. Thereafter, additional demands were made of the respondent by Local No. 349, including a request for a signed' agreement. A conference was held on September 20, 1937, between representatives of the respondent and Local No. 349, at which the respondent dis- tributed to the union representatives mimeographed notices in which it announced its refusal of practically all Local No. 349's requests. The final paragraph of the notice read as follows : In the past it has been the settled policy of the company not to sign contracts. Without doing so it has lived up to every promise it has ever made. The present situation is such that it cannot change its settled policy in this regard. While this meeting was still in progress, copies of this notice were distributed by the respondent to all its employees. Contonzo, the president of Local No. 349, protested to Wallace about this a few days later, and stated that, he did not think it was "fair that they went over our heads ..." In October 1937 Local No. 349 became affiliated with the United Rubber Workers of America, as Local No. 162 thereof. Thereafter, the union, in communicating and dealing with the respondent, did so as Local No. 162. Towards the end of 1937 and early in 1938 a period of slack work necessitated the respondent's laying off of a number of employees. George Michaels, an employee, testified that in December 1937 he spoke to Herzog regarding the lay-offs and told him that there was enough work to keep the employees working steadily, and that Herzog replied, "if it wasn't for the damn union we probably could give you more time." While Herzog testified that he did not recall making this statement, he did not deny having done so. We find, as did the Trial Examiner, that Herzog made the statement as testified to by Michaels. In January 1938 George Willoughby, another em- ployee, asked his foreman, one Weir, for an increase in pay and complained to him that there seemed to be but little chance of getting 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one. Weir replied, "Don't you remember you carried a banner on a strike?" The respondent contends that the memorandum of August 6, 1937, represented a full settlement of all disputes between it and the Union and that any charge that it violated Section 8 (1) of the Act prior thereto became merged therein. We do not find that the memoran- dum is susceptible of that interpretation. However, even if the August 6 memorandum be taken to constitute such a settlement agreement, the Board is not bound thereby. Section 10 (a) of the Act provides that "The Board is empowered . . . to prevent any person from engaging in any unfair labor practice . . . affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment . . . that has been or may be established by agreement . . . " Accordingly, the memorandum of August 6, 1937, does not preclude us from finding a violation of the Act with respect to the respondent's activities prior to August 6, 1937.' The Board may, of course, in the exercise of its discretion refuse to disturb the settlement. In view of the respondent's subse- quent unfair labor practices, however, we will not withhold action on its account. Oden, the respondent's president, died on February 22, 1938. Dur- ing his lifetime, he had controlled the business and affairs of the re- spondent by reason of his ownership of nearly all the stock in the respondent corporation. Under his will, which was admitted to probate on March 4, 1938, three executors and trustees of his estate were appointed : Anne Oden Hambler, his daughter, one Richard H. Crook, and William D. Magagnos. There had been no change in the ownership of the stock in the respondent corporation from the time of Oden's death to the time of the hearing. Following Oden's death, the three executors and trustees were elected directors of the respondent and A. L. Wallace was elected vice president and general manager. The respondent contends that it cannot now be held re- sponsible for its activities prior to Oden's death which are alleged to constitute violations of the Act, and that the testimony as to such activities should have been ruled inadmissible by the Trial Examiner. The respondent has not changed its identity by reason of the death of its president and the administration of his estate by fiduciaries. Not only is the corporate entity the same, but also the respondent continued in business in the same place and with the same employees. We find no merit in the respondent's contention.8 7 See Matter of Shuron Optical Company, Inc. and Albert R. Ludrick, 11 N. L. R. B. 859; Matter of Harry A. Half, doing business as The Halff Manufacturing Company and Inter- national Ladies' Garment Workers' Union, 16 N. L R. B. 667. 8 Cf. Matter of Charles Cushman Company, et al and United Shoe Workers of America, 15 N L. R. B. 90 METAL HOSE & TUBING COMPANY, INC. 1133 The facts hereinabove set forth show the respondent's open and flagrant interference with and restraint and coercion of its employees' self-organizational activities from the very inception of their at- tempts to organize. Oden, the respondent's, president, clearly indi- cated his hostility to such activities by reproaching the union com- mittee therefor. The anti-union statements of Herzog and Magagnos, the respondent's stated refusals to enter into a written contract with the Union, its attempts to persuade the employees to signs the Bal- leisen contracts, and its attempts to form an inside union were all explicit manifestations of this same hostility, as was the respondent's distribution to its employees individually of its answers to the de- mands of Local No. 349 while purportedly discussing such demands with the union representatives. We find that by the above acts the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. B. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all the production and maintenance employees and machinists of the respondent in its Brooklyn, New York, plant, exclusive of supervisory, shipping and receiving, sales, and clerical employees, constitute a unit appropriate for the purposes of collective bargaining.9 All the employees in such unit are eligible to membership in Local No. 162. The respondent did not deny in its answer this allegation of the complaint and no evidence was offered at the hearing to show that such unit is inappropriate. We find that all the production and maintenance employees and machinists of the respondent in its Brooklyn, New York, plant, ex- clusive of supervisory, shipping and receiving, sales, and clerical employees, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to the employees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by Local No. 162 of a majority in the appropriate unit As stated in Section III, A, above, in the consent election of July 23, 1937, 112 of the respondent's 140 production employees, exclusive 9 This is substantially the same unit within which the July 23 , 1937, election was held. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of supervisory and clerical employees, voted to be represented by Local No. 349.10 Thereafter Local No. 349 became affiliated with the U. R. W. A. as Local No. 162 thereof. In its answer to the complaint, the respondent alleged that Local No. 162 has "no members . . . among . . . the personnel and employees of the respondent," that Local No. 162 is a `stranger and interloper to both the respondent, and its employees . . ," and that it "has no legal or proper in- terest in the relations between the respondent and its employees ..." These contentions of the respondent are without merit. The re- spondent knew of the affiliation of Local No. 349 with the U. R. W. A., and at no time after the election of July 23, 1937, questioned the Union's representation of a majority of its employees either before or after said affiliation took place. As to this, A. L. Wallace, the respondent's vice president, testified, "I knew that they called them- selves United Rubber Workers, but I . . . didn't attach very much importance to that. I knew it was under the C. I. O. and it was all one union to me." It is plain that nothing more than a change in name and affiliation took place, and we find that the labor organization selected by the majority of the respondent's production employees on July 23, 1937, did not cease to exist because of such affiliation and change of name.11 There was no showing at the hearing of any change since the elec- tion of July 23, 1937, in the desires of the respondent's employees with respect to representation for the purposes of collective bargain- ing. The affiliation of Local No. 349 with the U. R. W. A. as Local No. 162 is no evidence of such a change. On July 20, 1938, when Local No. 162 called a strike, 103 of the 126 employees in the plant walked out. It is thus clear that as of that date a majority of the respondent's employees were still represented by Local No. 162.12 We find that on July 23, 1937, and at all times thereafter, Local No. 162, known as Local No. 349 prior to October 1937, was and that it is the duly designated representative of the majority of the em- ployees in the appropriate unit, and that pursuant to Section 9 (a) of the Act, it was, therefore, and is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 10 One hundred and thiity-five employees voted in the election 11 See Matter of Continental Oil Company and Oil Workers International Union, 12 N L R. B 789 Cf Matter of Charles Cushman Company, et al and United Shoe Workers o] America, 15 N L R B 90. " See Matter of Blanton Company and United Oleoniaigai uie Woi l. ei s Local Industrial Union No 1,89, 16 N L R B 951 METAL HOSE & TUBING COMPANY, INC. 1135 3. The refusal to bargain collectively On March 10, 1938, representatives of Local No. 162 presented to Wallace a typewritten draft of a proposed agreement as to wages, hours, and working conditions. The proposal contained provisions for exclusive recognition of Local No. 162 as the collective bargaining agent of the respondent's employees; a closed shop, a check-off, a min- imum wage scale, departmental seniority, spreading the work in each department annong the employees thereof, hearings for employees about to be discharged, leaves of absence for union duties without loss of seniority, washing time before lunch and before quitting time, and posting union notices on the respondent's bulletin boards, with the respondent's approval, which was not to be unreasonably withheld. Wallace told the union representatives that he had no power to sign the contract and asked for 10 days' time in which to study it. A conference regarding the proposed contract was held by the par- ties on March 24, 1938. Cyrus S. Jullien, the attorney for Oden's estate and for the respondent, informed the union committee that the respondent"could-not sign a contract with "any third party," and that it could take no action for 90 days, which he claimed was the time the trustees of Oden's estate required to examine and consider the situation brought about by Oden's death. Charles John Serra, a union organizer, stated that he would agree to a 90-day postponement of discussion, provided that the respondent would agree in advance to execute a contract at the expiration of the 90 days. Jullien re- plied that he could not agree in advance as to what the respondent would do. On April 14, 1938, at the request of the Union, another conference between the parties was held at which Jullien told the union commit- tee that the executors and trustees were required to account to the surrogate's court for their actions and that there were "many very difficult legal questions involved." Local No. 162, after insisting in vain upon some definite commitment by the respondent as regards the contract, consented to a 90-day postponement from March 24, 1938, the date of the earlier conference, and, accordingly, the parties agreed to meet on June 24, 1938. Prior to June 24, 1938, the respondent prepared a "Declaration of Policy" and a clause-by-clause answer to Local No. 162's proposed agreement, herein called the "Answers." The Declaration of Policy was a general statement of the respondent's labor policies. Included therein were the following two paragraphs : 4. The Company feels that it would be prejudicial to its best interests to operate its plant under the closed-shop principle. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company feels that the employees have a right to be mem- bers of organizations for their self-protection. At the same time the Company feels that no outside organization has a right to dictate the policies of the Company nor the production methods or any other matter which is purely a matter to be determined by the Company and its stockholders. The Company must be free at all times to run the Company for the best interests of the Company and the stockholders. 5. The Company also feels that it would be against the best interests of the Company to have a written contract with any third party. The Company adheres to the principle of always maintaining its promises and, pledges. [Italics ours.] The respondent, in its "Answers" and Declaration of Policy, did not discuss the question of exclusive recognition of Local No. 162, rejected the Union's closed-shop and check-off requests, announced a wage increase effective July 14, 1938, but made no mention of the Union's proposed minimum wage scale, refused to consider seniority in laying off and rehiring employees, unless other factors were equal, refused to arbitrate lay-offs or discharges, refused leaves of absence for union duties, refused to grant washing time, and refused to per- mit Local No. 162 to post notices of union activities "upon company property without the company's permission." 13 No counterproposals were advanced by the respondent. On June 24, 1938, representatives of Local No. 162 and of the re- spondent met at Jullien's office. A public stenographer was present at this and subsequent conferences and transcribed the minutes of the meeting for the respondent. Jullien opened the meeting by distribut- ing to Local No. 162's representatives copies of the Declaration of Policy and then reading it aloud. He also read to them the "An- swers" to Local No. 162's proposed agreement and stated that the re- spondent would discuss with Local No. 162 any matters "within the terms of that Declaration of Policy." At the meeting, Jullien explained that the words "third party," as used in the Declaration of Policy, referred to any outside union and said, "we won't make any agreements with outsiders." At no time during the meeting was the Union's proposed agreement discussed clause by clause. Serra requested Jullien to "make a notation of the paragraphs of that contract, then, this proposed contract, and let's sit down and negotiate it." Jullien refused to do so. He further ' Local No 162 had not requested permission to post notices on the respondent's bulletin boards without the respondent 's permission It had requested the privilege of posting notices on the respondent 's bulletin boards with the respondent's permission , such permis- sion not to be unreasonably withheld. METAL HOSE & TUBING -COMPANY, INC. 1137 refused to sign an agreement even if an understanding were reached," as indicated by the following excerpt from the stenographic tran- script of the meeting : , Mr. SIRRA.15 Providing, now, say, we come to some under- standing, it is still the policy that they will not sign the contract if there is an understanding on this thing? Mr. JULLIEN. That is right. You haven't had to have a signed contract with us at any time. During the meeting, as it had done on September 20, 1937,11 the respondent distributed to each employee in the plant a copy of the Declaration of Policy, attached to which was a short notice, announc- ing the July 14 wage increase. Orlando Scaglione, one of the union representatives, who arrived at the meeting as it was nearing its close, had in his possession one of such notices. Serra thereupon protested to Jullien the respondent's action in dealing directly with the employees rather than with the Union concerning matters prop- erly the subject of collective bargaining. At the request of Local No. 162, another conference was held on July 12,1938, in the plant, attended by representatives of the respond- ent, with Jullien as their spokesman, and 12 representatives of Local No. 162. Most of the employees were also present, pursuant to a .notice which had been posted by the respondent inviting them to attend the conference. At the opening of the meeting Jullien an- nounced that the "Answers" and the Declaration of Policy were the respondent's complete answer to Local No. 162's proposed agree- ment. After an ensuing argument, he said : As I get it now, all of this argument reduces itself to a ques- tion of making an agreement with the Union, which is an outside, third party, so far as the plant is concerned. In our Declaration of Policy we say that we must maintain our management of the plant, and, personally, I think it would be a mistake for the Trustees who are charged with a high degree of responsibility to relinquish any part of their responsibility by signing a con- tract with the Union, an outside person, who is not an employee of the corporation. That is my personal view of it. 13 The respondent claims that at one stage of the meeting Serra wailed the Union's de- mand for a written agreement by saying, "well, then, the signed contract, let's leave that out, then you are willing to sit down then and go over the thing, as 11Ir Jullien has stated the Declaration of Policy, and we will put it in writing and let it in the form of a memo- randum?" This suggestion of Serra's was not discussed At the hearing, Serra testified that he merely suggested working under a memorandum until such time as the trustees had the power to sign contracts, inasmuch as Jullien had stated that they had no such power It is obvious in view of the Union's prior and subsequent insistence upon a signed agree- ment that Serra did not waive the Union's demand therefor 15 Serra's name was thus misspelled throughout the transcript of the meeting 113 See Section III, A, above. 1138 DECISIONS Or NATIONAL LABOR RELATIONS BOARD The discussion ended with Local No. 162's continued insistence upon a written contract and Jullien's refusal to accede to its demands. On the following day, Local No. 162 filed charges with the Regional Director alleging that the respondent had refused to bargain col- lectively within the meaning of the Act. On or about July 14, 1938, the members of Local No. 162 voted to go on strike. The Regional Director called the respondent and Local No. 162 to an informal conference at her office on July 18, 1938, to which the respondent failed to send a representative. On July 19, 1938, the employees stopped working at noon because of the respondent's alleged refusal to bargain and its failure to send a repre- sentative to the conference at the Regional Office. Police were called into the plant by the respondent and upon Wallace's promise to Local No. 162 that another conference would be arranged, the em- ployees returned to work. The respondent claims that this was a sit-down strike. Inasmuch, however, as it is undisputed that the employees either resumed work or left the plant at 3 . p., in. on the same day as the stoppage, and that none of the 'employees remained in the plant after working hours, the respondent's contention is without merit. According to the testimony of Rivera, Local No. 162 sought an- other conference with the respondent that week, but the respondent advised the union representatives that a further conference could' not be arranged until the following week. Rivera further testified that when the union members were informed of this on July 19 they "figured it was another stall" and expressed a desire to strike at once. Witnesses for the respondent, however, testified that on July 19 a conference was arranged for July 22. On the morning of July 20, 103 of the respondent's 126 employees went on strike and formed a picket line outside the plant. That morning, Sven Berg- strom, in charge of the respondent's metal-lining department, offered I. V. Schultz, an employee, an increase in pay if he would not go on strike with the other employees. Schultz refused the offer. We find it unnecessary to resolve the conflict in the evidence as to whether, on July 19, another conference between Local No. 162 and the respondent had been arranged for July 22. Even if the evidence adduced by the respondent as to this be believed, neverthe- less Local No. 162 was under no duty to continue to engage in fruit- less attempts to bargain collectively with the respondent. In considering their strike vote, the members of Local No. 162 were entitled to take into consideration the attitude evidenced by the respondent since June 1937 and its attempts since that date to dis- courage its employees' membership in the Union. They were also entitled to consider the respondent's continued insistence, over a METAL HOSE & TUBING COMPANY, INC. 1139 period of more than a year, that it would not "sign a contract with the C. I. 0." or "with any third party." Although Local No. 162's proposed agreement had been presented to the respondent on March 10, 1938, and although three conferences had been held between the respondent and Local No. 162 since that date, Local No. 162 had made no progress toward the negotiation of a collective bargaining agreement with the respondent because of the respondent's refusal to bargain with Local No. 162 to that end. Moreover, only 2 days prior to the strike, the respondent had failed to send a representa- tive to an informal conference called by the Regional Director in an attempt to investigate the merit of Local No. 162's charges that the respondent had refused to bargain collectively within the meaning of the Act. On July 22, 1938, the respondent mailed letters to all the striking employees, stating that the stoppage of July 19, 1938, was an illegal sit-down strike and that by striking on July 20, 1938, they had ceased to be employees of the respondent and had forfeited their wage increase of July 14, 1938. The letter also stated : As the company has stated in their previous conferences with your union representatives, the company has come to the con- clusion that it will not sign a contract with the C. I. 0., nor agree to the closed-shop principle or the check-off system. [Italics ours.] In the letter the respondent offered to reinstate the employees pro- vided that they returned to work on Monday, July 25, 1938. The employees were to be deprived, however, of the July 14 wage in- crease. The strikers did not return to work on July 25. On July 26, 1938, the Local No. 162 committee met with the re- spondent's representatives. Jullien told the union representatives that the respondent no longer considered the strikers employees, but he extended to July 28, 1938, the respondent's original offer to rein- state the strikers without the July 14 wage increase. Local No. 162, however, insisted upon having any understandings reached embodied in a signed contract and Jullien repeated, "We are not going to sign a contract with the Union." Mr. Leslie, a union organizer, attempted to discuss the proposed agreement which Local No. 162 had presented to the respondent on March 10, clause by clause, but Jullien refused to do so, stating that the respondent had "no industrial and economic relationships with the Union." Jullien further stated that he would not discuss the closed shop or the check-off and that, while he was willing to bargain with the Union, no agreement would be signed. Jullien finally agreed to ask the Oden trustees once more whether they would sign an agreement. 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The strikers did not return to work on July 28, 1938, and the respondent began to hire new employees. Thereafter, the respond- ent persisted in its refusal to sign a written agreement. At a conference held on August 19, 1938, M. F. McDonald, one of the respondent's attorneys, told Local No. 162, "You are discussing con- tract again, and our policy in regard to that has not changed a bit." On August 24 and 25, 1938, some of the strikers returned to work.' All but two resumed the strike, however, when they learned that they would not receive the wage increase of July 14. Thereafter, conferences were held between the respondent and Local No. 162 on August 25 and September 7, 8,13 and 9, 1938, at which the discussions centered about settlement of the strike. The Union insisted upon reinstatement of all the striking employees, but the respondent refused to settle the strike on that basis inasmuch as it had hired new employees during the strike and did not want to displace them. 4. Conclusions as to the refusal to bargain collectively From the foregoing it is clear that from the time that the respond- ent's employees first joined the Union in June 1937, the respondent continuously and persistently refused to enter into any written agreement with it. Herzog's statement on June 29, 1937, that "under no circumstances will the company ever sign an agreement with any outside party"; Magagnos' statement on July 2, 1937, that he would not "recognize any third party or sign any contract"; Reily's state- ment to the same effect on August 4, 1937; the respondent's notice of September 20, 1937, that "it has been the settled policy of the company not to sign contracts"; Jullien's statement on March 24, 1938, that the respondent would not sign a contract with "any third party"; the Declaration of Policy which the respondent distributed to its employees on June 24, 1938, which set forth that it would be "against the best interests of the Company to have a written contract with any third party"; and Jullien's statement on June 24, 1938, 17 In all, 22 strikers returned to work on those 2 days Fifteen returned to work on August 24 , and of those only 5 reported to work on the following day In addition to those five, seven additional strikers returned to work on August 25 After August 25, only 2 of the 22 strikers who had returned to work remained in the plant ; the others resumed the strike. 1s The respondent contends that Local No 1G2 waived its demand for a signed agreement at this conference , in that H D Da« son , the C I 0 representative , said "To be perfectly frank with you, I don't care much whether you have a signed contract or not " Read in its full context , it is clear that Dawson 's statement meant merely that even a signed agree- ment would be meaningless, unless the parties in good faith intended to perform it. The following is the continuation of Dawson 's remarks at the meeting : "If a signed agreement noes not mean an3 thing you are in the same position that you were in before . . . I think the company is in a far better position with a contract signed by members of the organiza- tion in black and white than they are with just a• memorandum ." The respondent's` con- tention is without merit. METAL HOSE & TUBING COMPANY, INC. 1141 that the respondent would not sign an agreement with Local No. 162, even if the terms thereof were agreed upon, all illustrate the respond- ent's fixed purpose not to enter into any agreement with the Union under any circumstances. That the respondent did not deviate from its policy in this respect after the strike of July 20, 1938, was made clear by its letter of July 22, 1938, advising the striking employees that "the company has come to the conclusion that it will not sign a contract with the C. I. 0.," by Jullien's statement on July 26, 1938, that the respondent would not sign an agreement with the Union, and by McDonald's statement on August 19, 1938, that "You are discussing contract again, and our policy in regard to that has not changed.a bit." Collective bargaining, as contemplated by the Act, is a procedure looking toward the making of a collective agreement by the em- ployer with the accredited representatives of his employees touching their wages, hours of service, and other working conditions. The duty to bargain collectively which the Act imposes upon employers has as its objective the establishment of such contractual relationship and includes the obligation, under ordinary circumstances, to reduce the agreement reached into signed, written form, when requested to do so by the employees' representatives. By refusing in advance to embody whatever agreement might be reached with the Union in a written, signed agreement, the respondent did not fulfill its obligation to bargain collectively within the meaning of the Act 19 At the time of the various conferences hereinbefore described, and at the hearing, the respondent sought to justify its refusal to sign a written agreement upon various grounds. First it contended that the law does not compel executors and trustees to enter into a written agreement with a labor organization. This contention is unsound. The Act applies to fiduciaries as well as to other employers. In addition, in view of the respondent's refusal to sign a written agree- ment with the Union during Oden's lifetime, we find that this con- tention was not made in good faith. Furthermore, the respondent is a corporation, the identity of which has not been changed by the 19 Art Metal Construction Company v N L. R B , 110 F (2d) 148 (C C A 2), enf'g as mod, Matter of Art Metal Construction Company and International Association of Ma- chinists, Local 1559, affiliated with District # 65, of the I . A M (A. F of L ). 12 N L. R B 1307; N L R B v Highland Park Manufacturing Co, 110 F (2d) 632 (C C A. 4), enf'g Matter of Highland Park Manufacturing Co and Textile Workers Organizing Com- mittee, 12 N L It R 1238, N. L R B v Sunshine Miwrng Company, 110 F. (2d) 780 (C C A 9), enf'g as mod, Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N L R B 1252 ; H J Heinz Company v N L R B, 110 F ( 2d) 843 (C C. A 6), enf'g Matter of H. J. Heinz Company and Canning and Pictle Workers, Local Union No 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federation of Labor, 10 N L R B. 963: Matter of Foit Wayne Corru- gated Paper Company and Local No. 182, International Brotheehood of Pulp, Sulphite, and Paper Mill Workers, 14 N L R. B 1, enf'd Fort Wayne Coirugated Paper Company v. N L R B, 111 F (2d) 869 (C C A 7) 283034-41-vol 23-73 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change in its stock ownership from Oden to Oden's executors and trustees. Second, the respondent contended that since Oden's will authorized the executors and trustees of his estate ultimately to sell the business of the respondent, the existence of a labor agreement might 'be detrimental to the possible sale of the business. This con- tention likewise is unsound. The respondent is not relieved of the obligations imposed-upon it by the Act by reason of a hypothetical future detriment to it from its performance of such obligations.2° This contention, moreover, also was not advanced in good faith, for Wallace and Magagnos admitted at the hearing that the respondent's directors had not considered the possibility of signing a contract with the Union which by its terms would terminate if the respond- ent's business were sold. Third, Jullien testified that the respondent would not sign any contract because it was his personal opinion "that there was no obligation to sign a contract." As we have here- inabove shown, this contention also is without merit. The respondent in its "Answers" rejected most of the Union's demands in toto and made no effort to submit any plan or offer of its own which could be considered evidence of its intention to bargain in good faith. It contented itself with advising the union representa- tives to "mull over" its "Answers" and its Declaration of Policy and with offering to "discuss" any matters "within the terms" of the Declaration of Policy. This at the outset meant that any discus- sions entered into would be had with the understanding that the respondent would not enter into a written agreement and that the respondent would not bargain concerning a closed shop 21 The re- spondent's failure to advance any proposals of its own, as well as its preconceived determination not to enter into a written agreement with the Union, made any productive negotiations impossible 22 Its obligation to bargain collectively within the meaning of the Act was not satisfied by its meeting with the union representatives and merely engaging in discussions with them. The respondent contends that the only matters in dispute between the Union and itself were the closed shop and the check-off, and that as to these matters they were unable to agree. The record does not support this contention. There is no evidence that the Union insisted upon the closed shop and the check-off as a prerequisite to any agree- 20 See N. L. R. B. v. Star Publishing Company, 97 F. (2d) 465 (C. C. A. 9), enf g Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N. L. R. B. 498; Matter of Combustion Engineering Company, Inc. and Lodge 1230, Amalgamated Ass'n. -op Iron, Steel if Tin Workers of North America, 20 N L R. B. 602. 21 At the hearing Serra testified, "Every time I brought something up the objection was it wasn't covered up in the declaration of policy and, therefore, it couldn't be negotiated " 22 See Matter of Wilson if Co., Inc. and United Pacl.ing House Workers L. I Union No. 51, 19 N L. R. B. 990. METAL HOSE & TUBING COMPANY, INC. 1143' ment at all, and the Union's vain attempt to negotiate on these proposals cannot be construed as an insistence that they be granted in toto. Moreover, the respondent in its "Answers" rejected other provisions in the Union's proposed agreement. The inability of the parties to arrive at an agreement as to the closed shop and the check-off does not excuse the respondent from refusing to bargain in good faith as to the other matters 23 While the respondent was meeting with Local No. 162 on June 24, 1938, for the declared purpose of considering the Union's proposed agreement, the respondent distributed to all its employees copies of its Declaration of Policy and notices of a wage increase. The respond- ent had not notified the representatives of Local No. 162 of its intended action, nor had it consulted with them with respect thereto. Its explanation for this action-that it sought thereby to make certain that not only members of Local No. 162 but also non-members were notified of the increase-is untenable in view of the respondent's obligation to deal with Local No. 162 as the exclusive representative of its-employees. The respondent's failure to notify or consult Local No. 162 as to such matters was an attempt by the respondent to relieve itself of its obligations to bargain collectively under Section 8 (5) of the Act, constituted a direct attack upon the Union's efforts to bar- gain collectively, and, of necessity, dealt a severe blow to the prestige of Local No. 162 by demonstrating to the employees that the respond- ent considered collective bargaining with it neither desirable nor necessary. As stated above, the respondent had acted similarly on September 20, 1937, when, while meeting with representatives of the Union to discuss their demands, it distributed to its employees indi- vidually copies of its answers to the Union's demands while the con- ference was still in progress. We have previously held that when an employer unilaterally acts with respect to matters which normally are the subject matters of collective bargaining, at a time when the, employees' designated union is attempting to bargain collectively with him, such action constitutes a violation of the employer's duty under the Act to bargain with the designated union.- We find that the respondent, by its refusal in advance to embody whatever agreements might be reached with the Union in a written, signed contract, by its failure to submit any counterproposals to Local 23 See Matter of Wilson & Co, Inc and United Packing House Workers L . I. Union No. 51, 19 N. L R B. 990; Matter of United States Stamping Company and Enamel Workers Union, No 18630, 5 N. L. It. B. 172. 24 Matter of Whittier Mills Company at at and Textile Workers Organizing Committee, 15 N L R B 457, enf'd N I. R B v Whittier Mills Company et al , 111 P. (2d) 474 (C. C. A. 5) ; Matter of Wilson & Co, Inc. and United Packing House Workers, L I. Union No. 51, 19 N L. R. B. 990 , and cases therein cited in footnote 11; Matter of Riverside Manu- facturing Company and Amalgamated Clothing Workers of America, 20 N. L R B. 394. 1144 DECISIONS OF NATIONAL LABOR RELATIONS • BOARD No. 162 while at the same time rejecting the Union's proposals, by its unilateral dealings with its employees when it was under a duty to deal with Local No. 162 as their sole collective bargaining representative, and by others acts stated above, refused to bargain collectively with the Union as the exclusive representative of its employees in the ap- propriate unit with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. The respondent by distributing to its employees copies of the Declaration of Policy, by affirming in its employees' presence its in- tention not to enter into a contract with Local No. 162, and by other- wise refusing to deal with the Union, of necessity discredited the Union so as to discourage membership therein. We find that by the above refusals to bargain the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. We also find that the unfair labor practice of the respondent in refusing to bargain collectively with Local No. 162 as the exclusive collective bargaining representative of its employees in the appropri- ate unit caused the strike of July 20, 1938, and that the strike was prolonged because of the respondent's continuing to engage in said unfair labor practice. C. Discrimination with respect to hire and tenure of employment After the failure of the respondent's efforts to persuade the striking employees to return to work on July 25 and 28, the respondent pro- ceeded to hire new employees. On September 27, 1938, Local No. 162 notified the respondent that it had terminated the strike "under pro- test to N. L. R. B.," and that it had instructed its members to report to work that day under conditions of employment prevailing as of July 19, 1938. When, on the following day, the strikers reported to work, however, they were denied admittance to the plant, and they ,thereupon resumed their strike. On October 7, 1938, Local No. 162 again notified the respondent that the strike was terminated and that the strikers would report for work beginning October 10, 1938. How- ever, this time the Union imposed no conditions concerning the status of the strikers who returned to work. Of the 103 employees who had gone on strike on July 20, 1938, 66 were still on strike on October 7, 1938, the date of the termination of the strike. The remainder had abandoned the strike and had re- turned to work for the respondent. Within a few days after Octo- ber 7, most of those who were still on strike applied for reinstate- METAL HOSE & TUBING COMPANY, INC. 1145 ment,25 including those employees listed in Appendices A and B.2° On October 7, 1938, as well as on October 10, the date when most of the strikers who applied for reinstatement made their applications, the respondent still had in its employ 67 employees whom it had hired during the strike. The respondent refused to reinstate the strikers listed in Appendices A and B at the time they applied for reinstatement because it did not desire to displace new employees hired since the beginning of the strike. Since the strike was caused by the respondent's unfair labor prac- tices, the striking employees were, in the absence of some valid cause for discharge, entitled to reinstatement to their former posi- tions upon request, even though the respondent did hire new em- ployees during the strike .17 At the time the strike was terminated, the number of new employees in the plant who had been hired since the commencement of the strike exceeded the number of employees still on strike.28 The respondent was under a duty, at the time the strikers applied for reinstatement, to discharge a sufficient number of the employees it had hired during the strike to make positions available for the applicants for reinstatement. By its failure and 25 Those who applied for reinstatement were required by the respondent to sign their names in a book supplied by the respondent in which was written , "The undersigned hereby make application for re-employment of (sic ) his or her former position and will be given the opportunity of returning to work as vacancies occur. " We do not interpret this to constitute a waiver by the employees of their right to immediate reinstatement. Even were it susceptible of such interpretation , however, to permit the employees' subscribing their names to the foregoing to operate as a waiver of any of their rights under the Act, including their right to immediate reinstatement , would be to give legal sanction to the respondent's illegal acts which caused and prolonged the strike and resulted in the respond- ent's victory therein See Matter of Stewart Die Casting Corporation and United Auto- mobile Workers of America, Local 298, et at., 14 N L. R B 872; Matter of Blanton Com- pany and United Oleomargarine Workers Local Industrial Union No. i89, 16 N. L R . B. 951. 20 Appendix A is a list of strikers who applied for reinstatement but had not been rein- stated up to the time of the hearing. Appendix B is a list of strikers who had been reinstated by the respondent prior to the hearing . None of the strikers listed in Appen- dix B testified at the hearing . Subsequent to the hearing, the respondent filed with the Board a schedule setting forth that these strikers applied for reinstatement at or about the time the strike ended Herzog testified as to the dates on which they were subsequently reinstated, which are as follows : Name Date of Reinstatement A. Antonelli---------------------------------------------- October 31 C. Antonelli---------------------------------------------- " 18 H. Fiecliter ----------------------------------------------- 31 Juan Rosado---------------------------------------------- 19 Herman Wilksch ------------------------------------------- " 27 nBlaek Diamond Steamship Corporation v. N. L. R . B, 94 F. ( 2d) 875 ( C. C. A. 2), cert. denied , 304 U. S. 579 , enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial Association , Local No. 33, 3 N. L R. B 84; Matter of McKaig- Hatch, Inc. and A malgamated Association of Iron, Steel, and Tin Workers of North Amer- ica, Local No. 1139, 10 N L. R. B. 33 28 Between July 28, 1938 , and the time of the hearing , the respondent hired 93 new em- ployees. At the time of the hearing 48 of the new employees hired by the respondent during the strike were still in the respondent 's employ ; 37 of the strikers had still not been reinstated at that time. 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal to reinstate the strikers who made application therefor in the place of the employees hired during the strike, the respondent estab- lished a preference of a character which discourages union member- ship. The respondent seeks to excuse its failure to reinstate strikers on -'various grounds. The respondent claims that the strikers' failure to return to work on July 25 and 28, 1938, pursuant to the respond- ent's offers of reinstatement at reduced pay, operated to deprive them of their right to subsequent reinstatement upon application. How- ever, on those dates the strike was still continuing as were the re- spondent's unfair labor practices which had caused the strike. The Act did not require the employees to forego their right to strike or to accept offers of reinstatement in the face of the respondent's con- tinuing refusal to bargain collectively. Neither the employee status of the strikers nor their rights to reinstatement was affected by the respondent's offers of reinstatement on July 25 and 28, 193828 The respondent further contends that the strikers who returned to work on August 24 and 25, 1938, are not entitled to reinstatement. There is no merit in this contention. These strikers returned to work temporarily in the mistaken belief that they were to receive their former rate of pay. After August 25 they resumed the strike. Their temporary return to work did not change their status as par- ticipants in a strike caused by the respondent' s unfair labor practices. The respondent also adduced testimony to show that certain alleged incidents of sabotage and infractions of the respondent's rules by employees had occurred during the period from July 1937 to the time of the strike. The respondent named no specific employees who had allegedly- committed sabotage, and it took no disciplinary measures against any of its employees except one Filipelli, who was discharged long prior to the strike for having dropped a piece of metal in some machinery. Herzog testified that some inventory tags were torn into pieces in February 1938 and that he suspected that Contonzo had done it. However, there was no testimony that he had ever spoken to Contonzo about it or that the respondent had taken any disciplinary action against Contonzo. With respect to other instances of alleged infractions of the respondent's rules which were testified to, there was no testimony that any disciplinary action was taken by the respond- ent at any time. The respondent's contention that the foregoing evidence as to sabotage and infractions of its rules excused its re- fusal to reinstate strikers is without merit. Herzog and Funke testified that sometime in September 1938 they discovered a quantity of hose in the plant that had been damaged by 29 See Matter of Aronsson Printing Company and Detroit Printing Pressmen's and Assist. ants' Union No $ and Detroit Bindery Workers ' Union No . 20 and Detroit Typographical Union No. 18 . 13 N. L R B 799. METAL HOSE & TUBING COMPANY, INC. 1147 being cut. This discovery was made a few weeks after some of the strikers had temporarily returned to work on August 24 and 25, 1938. Funke testified that he had last inspected the hose two weeks prior to August 25, 1938, and had found it free of defects. Herzog admitted at the hearing that, although he had investigated to ascer- tain who had cut the hose, he did not discover who it was. He testi- fied, "In a roundabout way I was told one man had been seen in that location with a knife in his hand on August 24. But who the man was, the man that gave that information, it was given confidentially and the man who told me wouldn't say who it was or who had been seen." This evidence is insufficient to establish that the damage to the hose was caused by any of the striking employees. We find that by refusing reinstatement to the employees listed in Appendices A and B at the time the said employees made application therefor on October 7, 1938, and thereafter, the respondent discrimi- nated in regard to the hire and tenure of employment of said em- ployees, thereby discouraging membership in Local No. 162, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Charles Salvatore Geraci and Floyd Acevedo joined the Union in June 1937 and went on strike in July 1938. After the strike was terminated, neither Geraci nor Acevedo applied for reinstatement. Geraci's reason for his failure to do so was that he was "out looking for another job" and "was getting a day or two a week in another place." Acevedo's reason was in substance that he did not consider it worth his while to apply. Under the circumstances, we find that the respondent did not discriminatorily refuse to reinstate Charles Salvatore Geraci or Floyd Acevedo. C. Santucci, Santo Lo Balbo, and Harry Boyce, three employees of the respondent who are alleged in the complaint to have been dis- criminatorily refused reinstatement, did not testify at the hearing. There is no evidence that either Santucci, Lo Balbo, or Boyce applied for reinstatement when the strike terminated. We find that the respondent did not discriminatorily refuse to reinstate C. Santucci, Santo Lo Balbo, or Harry Boyce. Frank Campo was an employee of the respondent alleged in the complaint to have been discriminatorily refused reinstatement. Campo did not testify at the hearing. Herzog testified that Campo applied for reinstatement on October 7, 1938, and was reinstated by the respondent on the same day. This testimony was not contro- verted. We find that the respondent did not discriminatorily refuse to reinstate Frank Campo. W. Yaroschuk, an employee of the respondent alleged in the com- plaint to have been discriminatorily refused reinstatement, did not 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testify at the hearing. Herzog testified that Yaroschuk was rein- stated on November 3, 1938, and there is no evidence that Yaroschuk's reinstatement did not follow immediately after his application there- for. We find that the respondent did not discriminatorily refuse to reinstate W. Yaroschuk. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent, set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in certain unfair labor practices and shall order it to cease and desist therefrom. We shall also order the respondent to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the Union, on July 23, 1937, and at all times thereafter was and that it is the exclusive representative of the employees in the appropriate unit. Having further found that the respondent has refused to bargain collectively with the Union as such representative, we shall order it upon request to bargain collectively with Local No. 162 as the exclusive representative of the production and maintenance employees and machinists employed by the re- spondent in its Brooklyn, New York, plant, exclusive of supervisory, shipping and receiving, sales, and clerical employees. Having further found that the respondent refused to enter into a signed agreement, we shall address our order specifically to the wrong sought to be remedied, and order the respondent to embody any understand- ings reached in a written, signed contract, if requested to do so by Local No. 162.80 ' Art Metal Construction Company v N L. R. B, 110 F. (2d) 148 (C C A 2), enf'g as mod., Matter of Art Metal Construction Company and International Association of Ma- chinists, Local 1559, affiliated with District # 65, of the I. A. M. (A. F. of L.), 12 N. L. R B. 1307; N. L R B v. Highland Park Manufacturing Co, 110 F ( 2d) 632 (C. C. A. 4), enf'g Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Com- mittee, 12 N L. R B 1238; N L R. B. v. Sunshine Mining Company, 110 F. (2d) 780 (C. C. A. 3), enf'g as mod Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N L R. B. 1252; H. J. Heinz Company v N. L R. B, 110 F. (2d) 843 (C. C. A. 6 ), enf'g Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North dmerica, American Federation of Labor, 10 N. L. R B . 963; Matter of Fort Wayne Corru- gated Paper Company and Local No. 182, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, 14 N L. R. B. 1, enf'd Fort Wayne Corrugated Paper Company V N L. R. B., 111 F. (2d) 869 (C. C. A. 7). METAL HOSE & TUBING COMPANY, INC. 1149 We have further found that the employees listed in Appendices A and B ceased work as a consequence of the respondent's unfair labor practices and that the respondent thereafter discriminated against-them in regard to their hire and tenure of employment. In order'to effectuate the policies of the Act, we shall order the respond- ent to offer reinstatement to their former or substantially equivalent positions to those employees who have not been fully reinstated. Such reinstatement shall be without prejudice to their seniority and other rights and privileges and shall be effected in the following manner : All employees hired by the respondent after July 20, 1938, the date of the commencement of the strike, shall, if necessary to provide employment for those to be offered reinstatement, be dis- missed. If, thereupon, by reason of a reduction in force since July 20, 1938, there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstate- ment, all available positions shall be distributed among such remain- ing employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee be- cause of his affiliation with Local No. 162 or activity on its behalf, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those em- ployees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. We shall order the respondent to make whole those employees listed in Appendix A for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them, by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his application for reinstate- ment on October 7, 1938, or thereafter, to the date of the respond- ent's offer of reinstatement or placement upon the preferential list hereinabove described, less his net earnings si during said period. "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with seeking work or working else- where 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 employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Join- ers 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 shall be deducted from the sum due the em- ployee, 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. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall order the respondent to make whole those employees listed in Appendix B for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them upon application, by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his applica- tion for reinstatement to the date on which he was reinstated, less his net earnings 32 during said period. Even if we were to assume that the respondent's denial of rein- statement to the striking employees listed in Appendices A and B was not an unfair labor practice, we would nevertheless under the cir- cumstances award reinstatement and back pay to these employees in the manner set forth above. The strike having been caused by the unfair labor practices of the respondent, the ordinary right which it had to select its employees became "vulnerable," and any refusal by the respondent of a request made by the striking employees for rein- statement was at all times subject to such order as the Board, in effec- tuating the purposes and policies of the Act, might make directing the respondent to reinstate said employees, to dismiss persons hired since, and not in its employ at, the commencement of the strike, for the purpose of making positions available for such reinstatement, and to compensate such striking employees for any loss of wages sus- tained by virtue of the refusal.33 The striking employees desired to return to work but were denied reinstatement by the respondent. Assuming that the respondent's denial of reinstatement to the strik- ers on the ground that their jobs were occupied by strikebreakers was not a violation of Section 8 (3) of the Act, nevertheless the whole situation was brought about by the respondent's unfair labor prac- tices in refusing to bargain collectively with the Union. At the time the striking employees offered to return to work, the question as to whether the respondent would itself reinstate employees whose, work had ceased as a consequence of unfair labor practices or await an order of this Board requiring it to do so reposed entirely in the judg- ment of the respondent. Where, as here, employees who cease work as a consequence of unfair labor practices offer to return to work, with- out requiring as a condition that the employer cease the unfair labor 33 See footnote 31, supra 83 Black Diamond Steamship Corp. v. N L R . B., 94 F. ( 2d) 875 (C. C. A. 2), cert den. 304 U. S . 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engi- neers' Beneficial Association, Local No. 33, 3 N L. R. B. 84; National Labor Relations Board v. Remington Rand, Inc, 94 F. (2d) 862 (C. C. A. 2), cert. den 304 U. S 576, enf'g Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the Dis- trict Council Office Equipment Workers, 2 N. L R B 626 ; Matter of Mcfaig-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No 1139, 10 N. L R B. 33; Matter of Douglas Aircraft Company, Inc. and United Automobile Workers of America, International Union, Douglas Local No . 214, et al, 10 N L R B. 242 ; Matter of Western Felt Works, a corporation and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407 METAL HOSE & TUBING COMPANY, INC. 1151 practices which caused them to cease work, and the employer refuses to permit them to return to work upon their application for reinstate- ment, thereby depriving the employees of their jobs and attendant earnings until a later time or until this Board issues a remedial order, we are of the opinion that the policies of the Act will best be effectu- ated by requiring that in addition to reinstatement, the employer pay back pay to the employees from the date on which they offered to return to work to the date of their reinstatement or placement upon the preferential list hereinabove described. We have found that the respondent did not discriminate as to the hire or tenure of employment of Charles Salvatore Geraci, Floyd Acevedo, C. Santucci, Santo Lo Balbo, Harry Boyce, Frank Campo, or W. Yaroschuk. We shall accordingly dismiss the allegations of the complaint as to them. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Rubber Workers of America, Local 162, C. I. 0., known prior to October 1937 as Metal Hose and Tubing Co. Local 349, C. I. O., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. Metal Hose & Tubing Co., Inc., Employees Collective Bargain- ing Committee was a labor organization, within the meaning of Section 2 (5) of the Act. 3. All the production and maintenance employees and machinists of the respondent in its Brooklyn, New York, plant, exclusive of supervisory, shipping and receiving, sales, and clerical employees, at all times material herein constituted and now constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. United Rubber Workers of America, Local 162, C. I. 0., known prior to October 1937 as Metal Hose and Tubing Co. Local 349, C. I. 0., was on July 23, 1937, and at all times thereafter has been the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing, on June 24, 1938, and thereafter, to bargain col- lectively with Local No. 162 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. 6. By discriminating in regard to the hire and tenure of employ- ment of its employees and thereby discouraging membership in Local 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 162, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 7. 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. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Charles Sal- vatore Geraci, Floyd Acevedo, C. Santucci, Santo Lo Balbo, Harry Boyce, Frank Campo, and W. Yaroschuk. 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, Metal Hose S Tubing Co., Inc., Brooklyn, New York, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Rubber Workers of America, Local 162, C. I. 0., as the exclusive representative of its production and maintenance employees and machinists at its Brook- lyn, New York, plant, excluding supervisory, shipping and receiving, sales, and clerical employees; (b) Discouraging membership in United Rubber Workers of America, Local 162, C. I. 0., or any other labor organization of its employees, by refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any terms or conditions of their employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or 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) Upon request, bargain collectively with United Rubber Workers of America, Local 162, C. I. 0., as the exclusive representative of its production and maintenance employees and machinists, at its Brooklyn, New York, plant, excluding supervisory, shipping and METAL HOSE & TUBING COMPANY, INC. 1153 receiving, sales, and clerical employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on any such matters, embody said understanding in a written, signed contract, if requested to do so by United Rubber Workers of America, Local 162, C. I. 0.; (b) Offer to those employees listed in Appendix A immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section entitled "The remedy" above, dismissing, to the extent necessary, all persons hired since July 20, 1938, and placing employees, including those herein ordered reinstated, for whom employment is not immediately avail- able upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offering them employment as it becomes available; (c) Make whole the employees listed in Appendices A and B for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of his application for reinstatement on October 7, 1938, or there- after, to the date, in the case of those listed in Appendix' A, of the respondent's offer of reinstatement or placement upon the preferential list, as set forth in the section entitled "The remedy" above, and to the date, in the case of those listed in Appendix B, on which he was reinstated, less his net earnings 34 during such period; deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay 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; (d) Post immediately in conspicuous places at its Brooklyn, New York, plant, and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of United Rubber Workers of America, 14 See footnote 31, supra 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 162, C. I. 0., and the respondent will not discriminate against, any employee because of membership or activity in that organization ; (e) Notify the Regional Director for the Second 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 be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 .(3) of the Act with respect to Charles Salvatore Geraci, Floyd Acevedo, C. Santucci, Santo Lo Balbo, Harry Boyce, Frank Campo, and W. Yaroschuk. APPENDIX A Pablo Altu Joe Barbero Nick Basile John Campo Michael Chieffo Joseph Contonzo Daniel V. Cooke Thomas Crilly George Donlon Joseph Franchoni Thomas Interiere Douglas Ling Jones John Lombardi Peter McAnulty Lawrence McNally Vance Melton Peter Messina George Michaels Alfonso Montalbano Salvatore Orefice Joseph Reteguez Ramon Rivera Orlando Scaglione I. V. Schultz John Simpson Angelo Sirvent Eric Skog Simon Suarez Dominick Terranova Eduardo Vela Andrew Weatherall George Willoughby APPENDIX B A. Antonelli C. Antonelli H. Fiechter Juan Rosado Herman Wilksch