O.K. Machine & Tool Corp.

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O.K. Machine & Tool Corp. and Gyrotronics, Inc. and Julio Garcia, Jose Allen, Keith Zukaitis, Luis Tirado, and Hildo M. Melendez and Local 14756, United Steelworkers of America, AFL- CIO, Party in Interest. Cases 2-CA-16004, 2- CA-16071, 2-CA-16088, and 2-CA-16093 August 15, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On January 31, 1980, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and counsel for the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings,2 and conclusions 3 of the Administrative Law I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Producs Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In his findings of fact, the Administrative Law Judge found, inter alia, that Respondent's application of the collective-bargaining agreement and the union-security clause contained therein to Respondent's male em- ployees was a violation of Sec. 8(a)(3) and (I) of the Act. Despite this finding, the Administrative Law Judge inadvertently failed to include this violation of Sec. 8(a)(3) and (I) in his Conclusions of Law We therefore modify his Conclusions of Law accordingly. In its exceptions, Respondent argues that the Administrative Law Judge exceeded the scope of his authority by finding a violation of Sec. 8(a)(2) of the Act absent such an allegation in the complaint. It appears that Respondent has misconstrued the Administrative Law Judge's Deci- sion, since no such 8(a)(2) finuing was made therein; while aspects of the Administrative Law Judge's remedy resemble those given for certain 8(a)(2) violations, the remedy herein is being given to correct one of Re- spondent's violations of Sec. 8(a)(3), namely, the unlawful application of the collective-bargaining agreement and its union-security clause to Re- spondent's male employees. In order to remedy this violation, the Admin- istrative Law Judge has not recommended the complete rescission of the collective-bargaining agreement, but rather that Respondent be ordered not to extend the collective-bargaining agreement's coverage to the male employees. The Administrative Law Judge has further recommended that Respondent be ordered to reimburse its male employees for any initi- ation fees or dues paid pursuant to Respondent's enforcement of the union-security clause. and to reinstate and pay backpay to employees dis- charged thereunder. We find that the Administrative Law Judge's pro- posed remedy effectuates the purposes of the Act by remedying Re- spondent's 8(a)(3) violation, and hereby adopt it: we also adopt the Ad- ministrative Law Judge's conclusion that the underlying issues, although somewhat ambiguously alleged in the complaint, were fully litigated at the hearing. Respondent further argues that the Administrative Law Judge, by his finding that the collective-bargaining agreement covers only Respond- ent's female employees, and by his recommended remedy, has improperly sanctioned a unit based on sex in violation of Hoard law and Title VII. Our affirmance of the Administrative Law Judge's finding is not to be 251 NLRB No. 30 Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, O.K. Machine & Tool Corp. and Gyrotronics, Inc., Bronx, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(h): "(h) Recognizing the Steelworkers as the bar- gaining representative of any of its male employees for the purposes of dealing with Respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organiza- tion shall have demonstrated its exclusive majority representative status pursuant to a Board-conduct- ed election among the employees in a unit found appropriate." 2. Insert the following as paragraph 2(f) and re- letter the subsequent paragraphs accordingly: "(f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the Administrative Law Judge. thus c strued , since our decision is simply a recognition of the situation as it nw exists as the result of Rspondent's and the Union's actions. Thus. although we find that the collective-bargaining agreement cannot now be extended to cover Respondent's male employees, this is not meant to suggest that w e would in the future certify a unit consisting ex- clusively of either Respondent's female or male employees. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT photograph or make lists of our employees as they peacefully picket. QAX -He O.K. MACHINE & TOOL CORP. 209 WE WILL NOT threaten our striking employ- ees that they are going to be finished when the strike is over in order to discourage them from engaging in protected concerted and union ac- tivities. WE WILL NOT grant special bonuses as com- pensation to our employees who refrain from lawful strike activity. WE WILL NOT harass and intimidate our em- ployees by following them and keeping tighter control on their movements because of their having engaged in protected concerted and union activities. WE WILI. NOT issue written warnings to our employees because they engaged in protected concerted and union activities. WE WILL NOT discourage protected concert- ed activities or activities on behalf of Local 815, International Production, Service and Sales Employees Union, by denying our em- ployees overtime work or in any other manner discriminating against our employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT discharge or threaten to dis- miss our employees, thereby discriminating in regard to hire and tenure of employment, in order to discourage membership in Local 815, International Production, Service and Sales Employees Union, or to encourage member- ship in Local 14756, United Steelworkers of America, AFL-CIO, or any other labor orga- nization. WE WILL NOT recognize Local 14756, United Steelworkers of America, AFL-CIO, as the bargaining representative of any of our male employees for the purposes of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have demon- strated its exclusive majority representative status pursuant to a Board-conducted election among the employees in a unit found appropri- ate. WE WILL NOT give effect to the collective- bargaining agreements effective as of May 25, 1976, and May 25, 1978, between us and Local 14756, United Steelworkers of America, AFL- CIO, or to any extension, renewal, modifica- tion, or supplement thereof, insofar as it ap- plies to our male employees; provided, howev- er, that nothing herein shall require us to vary or abandon any wages, hours, or other sub- stantive features of our relations with our male employees which we have established in the performance of the contracts, or to prejudice the assertion by our employees of any rights they may have thereunder. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights to self-organi- zation, to form, join, or assist Local 815, Inter- national Production, Service and Sales Em- ployees Union, or any other labor organiza- tion, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Alberto Gonzalez, Hildo M. Melendez, Alton Fahie, Jose Allen, William Robinson, and Luis Tirado immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without loss of seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered as a result of our discrimination prac- ticed against them, with interest. WE WILL restore, to the extent we have not already done so, the assignment of overtime work to Keith Zukaitis, Radames Garcia, Juan Garcia, Alberto Gonzalez, Jose Allen, and Hildo M. Melendez, as the practice existed prior to October 5, 1978, and make them and Edwin Negron whole for any loss of overtime pay they may have suffered as the result of our discriminatory reduction of overtime op- portunities, with interest. WE WILL pay I day's wages, with interest, from October 20, 1978, to each of our employ- ees who engaged in the October 1978 strike against us, who did not receive the bonus paid on October 20, 1978, to our nonstriking em- ployees. WE WILL expunge from our records and from the employees' personnel files the written warnings issued to Keith Zukaitis on Novem- ber 17, 1978, and Radames Garcia on October 30, 1978, as a result of their protected concert- ed and union activities, and make whatever record changes are necessary to negate the effect of the issuance of such warnings. WE WILL reimburse our male employees for any initiation fees, dues, or other moneys paid or checked off pursuant to the agreement ap- plied to our male employees, or to any exten- sion, renewal, modification, or supplement thereof, or to any agreement superseding it, plus interest. O.K. MACHINE & TOOL CORP. 209 x, _ , . . 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL withdraw and withhold all recog- nition from Local 14756, United Steelworkers of America, AFL-CIO, as the exclusive bar- gaining representative of our male employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organi- zation shall have demonstrated its exclusive majority status pursuant to a Board-conducted election in a unit found appropriate. O.K. MACHINE & TOOL CORP. AND GYROTRONICS, INC. DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge: Upon charges duly filed by Julio Garcia, Jose Allen, Keith Zukaitis, Luis Tirado, and Hildo M. Melendez, against O.K. Machine & Tool Corp. and Gyrotronics, Inc. (Respondents), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, on December 28, 1978, issued and served on the parties a consolidated complaint and notice of hear- ing, thereafter amended on February 21, 1979, and fur- ther amended at hearing, alleging that Respondent com- mitted various violations of the National Labor Relations Act, as amended, by surveying employees' union activi- ties or giving the impression that their activities were under surveillance, giving rewards for not engaging in union activities, issuing warning notices, withholding overtime, and threatening and discharging employees. Respondent's answers denied the factual allegations of the complaint and amendments and denied that it com- mitted any unfair labor practices. A hearing was held before me on August 13 and Octo- ber 15-19, 1979, in New York, New York, and the par- ties thereafter submitted briefs in support of their respec- tive positions. I have considered the entire record of the proceedings before me, including my observation of the demeanor of the witnesses, and the briefs filed by the General Counsel and Respondent. Accordingly, I make the following: FINDINGS OF FACT I. JURISDICTION O.K. Machine & Tool Corp. and Gyrotronics, Inc., are New York corporations which maintain their sole office and place of business in Bronx County, city and State of New York. Respondent is and has been engaged in the manufacture, assembly, and nonretail sale and dis- tribution of handtools used in electronics and telecommu- nications, and related products. Gyrotronics, Inc., is and has been a wholly owned subsidiary of O.K. Machine & Tool Corp. and, together, O.K. Machine & Tool Corp. and Gyrotronics, Inc., have been affiliated business enter- prises with common officers, ownership, directors, man- agement, and supervision; have formulated and adminis- tered a common labor policy affecting employees of their operations; have performed services for each other; have shared common premises and facilities and have inter- changed personnel; have jointly manufactured and mar- keted their products; and have held themselves out to the public as a single integrated business enterprise. I find, as Respondent admits, that O.K. Machine & Tool Corp. and Gyrotronics, Inc., constitute a single integrat- ed business enterprise and a single employer within the meaning of the Act. Annually, Respondent, in the course and conduct of its business operations, sold and shipped from its New York, New York, facility goods and materials valued in excess of $50,000 directly to points outside the State of New York. Respondent admits, and I find, that it is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ABOR ORGANIZATIONS INVOLVED Respondent admits, and I find, that Local 815, Interna- tional Production, Service and Sales Employees Union (Local 815) and Local 14756, United Steelworkers of America, AFL-CIO (Steelworkers), are and have been at all times material herein labor organizations within the meaning of Section 2(5) of the Act. In or about 1965, Steelworkers and Gyrotronics, Inc., entered into a collective-bargaining agreement for the first time, and said agreement was renegotiated by them from time to time. Except as hereinafter explained, the last agreement' between them was made on July 7, 1976, effective as of May 25, 1976, and was to expire by its terms on May 24, 1979. In it, Gyrotronics, Inc., recog- nized Steelworkers as the sole and exclusive bargaining agent for: . . its maintenance and production employees, ex- cluding supervisory employees, salesmen, office and clerical employees, designers, and all the employees with authority to hire, discharge, promote, disci- pline or otherwise effect changes in the status of employees, or effectively recommend such action. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement and Findings of Protected and Concerted and Union Activities Until October 5, 1978,1 and perhaps even later, the collective-bargaining agreement, although covering a production and maintenance unit, was applied only to female employees, who were the only employees entitled to join the Union. When male applicants and, later, em- ployees Keith Zukaitis and Alberto Gonzalez asked their interviewer, Thomas Rivera, Respondent's manufactur- ing manager and an admitted supervisor, whether there was a union contract in the plant, he replied that there was a contract, which was only for the women, and a I All dates refer to the year 1978, unless otherwise stated. OX,. MACHINE & TOL CRI)P 211 union, which also was for the women.2 They were also told not to worry, because they, as males, would receive as much as the females, if not more.a The record is barren of any proof that the males were notified by anyone that there was an agreement which covered them or that there was a union which represented them with an agreement requiring that they join a union. When the males became disgruntled with Respondent's treatment of them, they sought the aid of Local 815. which on October 4 made a demand upon Respondent for recognition. The demand was rejected; and many of the male employees commenced a strike on October 5. For a day or perhaps only one-half hour, the strike was supported by several female employees. I find that the strike was concerted and protected, because it was insti- tuted and maintained for recognition and because the em- ployees who engaged in it were not at all aware that the union agreement covered them, which I find, in alny event, it did not. L.R.B. v. Wacon Insulation Inc., 5th7 F.2d 596 (4th Cir. 1977). On October 5, Local 815 filed a petition for represen- tation with Region 2, and the representation hearing commenced on October 2(). A week before, on October 13, Respondent filed unfair labor practice charges, alleg- ing that the employees were striking for recognition in the face of a valid collective-bargaining agreement which covered their employment. The representation hearing never resulted in a fornial decision, because Local 815 apparently backed away from its contest with the Steel- workers as to whether there was a contract bar, and the male employees agreed to return to work. Respondent's actions during and following the strike, alleged by the General Counsel as retribution and discipline for the male employees' actions, are the subjects of this proceed- ing. B. Conduct During the Strike 1. Photographing and listing of names of pickets On the first day of the strike, and shortly after, David Weltman, Respondent's vice president, photographed the pickets. At the same time, Supervisor Rivera walked around the picket line, making a list of the names of the pickets. The General Counsel alleges that these actions constitute surveillance, tending to restrain the pickets in engaging in their protected concerted and union activi- ties. Respondent argues that its actions were justified be- cause the photographs were taken as proof in connection with its legal proceeding claiming a violation of Section I do not credit Rivera's denials of these interviews. not only because he could not specifically remember them but also because he at firstl ad- mitted that Zukaitis may have asked whether there was a union. and thcn immediately and specifically recalled that he did not talk with Zukaitis about a union noted in Rivera's narration much hesitation, punctuated by his clearing of his throat when asked about many of the specific viola- tions alleged herein, and the deliberation he exercised when testifying to his close watch osler the employees who returned after the strike had ended 3 The collectise-bargaining agreement required sage increases of 15 cents per hour on May 24. 1977. and May 24. 1978. Employee Tirald received a 60-cent increase on May 2. 1977. and, in addition to the Nlir 24. 1978, icrease, received a "merit" Increase of 2(1 cents otn September 25. 1978, after complaining that he was not paid enough 8(b)(7)(A) and as proof of vandalism. I find that thesc have no merit. There was no vandalism or mischief on the first day of the strike: nor did Respondent contenm- plate the filing of an unfair labor practice charge under Section 8(b)(7)(A) as early as the first day of the strike. It was only later, as an afterthought and as part of the maneuvering to combat l.ocal 815's representation peti- tion, that Respondent conceived the notion that its agreement with Steelworkers covered the strikers. 4 Ac- cordingly, I find no justification for Respondent's actionls and find a violation of Section 8(a)(I) of the Act. Lram/l Leiurclics. Inc., 213 NLRB 17 (1974), enfd. 523 F.2d 814 (th Cir. 175); oloniul/ lavn .Nuring Ionm. I.. 218 NI.R3 1I(X)7 (1975), moditfid 542 1'.2d 91 (7th Cir 197h). 2. The threat to Robinson On Friday. October h, employee William Robinsoni. who had worked the previous day. joined the strike. He returned to the premises later in the day and requested Rivera's permission to enter the plant and retrieve hts clothes. Rivera follow,.ed him to the locker room, stating that the strikers did not have a leg to stand on and that they were going to be finished when the strike w'as over. I find that this threat, which was undenied and effective enough so that Robinson returned to work on the fol- lowing Monday, violated Section 8(a)(1) of the Act by its intended restraint upon employees' Section 7 rights to engage in self-organization and protected concerted ac- tivities. 3. Bonuses On October 20. Weltman called a meeting of all non- strikers, thanked them for being loyal to Respondent. and announced that they each had a bonus coming to them. Later that day, each employee then working was given a check representing I day's pay. I find that to be a violation of Section 8(a)(l) of the Act, because it tends to discourage employees from engaging in activities pro- tected by Section 7 of the Act. Aero-Motive Manufactur- ing Company, 195 NLRB 790 (1972), enfd. 475 F.2d 27 (6th Cir. 1973). C. Conduct After the Strike 1. Reassignment and surveillance of strikers The General Counsel alleges that, when the strike ended on October 20 and the strikers returned to work on October 23, Zukaitis and Julio Garcia were reas- signed to work at locations closer to Rivera, so that Rivera could watch over their activities, in violation of Section 8(a)(1) of the Act. There is no question that their assignments were changed after the strike and that their new assignments required them to work closer to Rivera. Zukaitis was reassigned from another room to 10 feet a See c 111. l3.A /Fr' O.K. MACHINE & TOL COR 2!! 212 I)ECISIONS OF NATIONAI. LABOR RELATIONS BOARD away from Rivera, and Garcia from 15-20 feet to 2 3 feet away. 5 However, I find Respondent's explanation of the reas- signnnt s plausible and justified-that there was no work for Zukaitis in the heat treating room, and no one did Zukaitis' former work. When heat treating resumed 2 or 3 weeks later, Zukaitis was assigned to his former job. Garcia, a machine operator, often worked at different machines i the plant. A new employee had been work- ing on the gun-boring machine, which Garcia worked before the strike, and was progressing to a fully trained operator of that machine; and Garcia's assignment to an- other machine after the strike required the skills which he possessed. I conclude that Respondent did not reas- sign these two employees solely or partly so that Rivera cotuld keep a watchful eye on them during the workday. I also conclude, however, that Rivera followed certain of the strikers around the premises and kept tighter con- trols on their whereabouts. In this regard, I credit Zukai- tis' and Garcia's testimony that they were watched at work, when they left their work stations, and even when they went to the bathroom. Rivera denied any such con- duct, but his testimony was not credible. While denying that he followed employees after the strike, he admitted that he followed Garcia to the heat treating room where Garcia was washing glasses in special equipment. Garcia accused Rivera of following him, to which Rivera re- plied that, as a supervisor, he had a right to do so. Fur- ther, Rivera testified that, because the situation was ex- plosive after the strike had ended, he ignored certain em- ployee conduct, such as "goofing off" or going to the bathroom, in order not to increase the tension. Yet, he followed Garcia and Zukaitis to the bathroom, either physically, or by watching and timing them, watched Garcia when he talked with other employees, and asked Zukaitis (who was leaving his work station) where he was going-conduct which was antithetical to Rivera's professed desire not to create further problems. I find adequate proof of a violation of Section 8(a)(1) of the Act. ; 2. Denial of overtime The General Counsel complains that the strikers were deprived of overtime upon their return to work. Julio Garcia testified that he was never offered overtime; and Zukaitis' and Allen's testimony indicates they were each offered overtime only once, on December 5 and Novem- ber 8, respectively, which they declined. Respondent's overtime records reflect that, during the 5 full weeks before the week of the strike, substantial overtime hours were worked by Zukaitis (13-1/2), Radames Garcia (12- 1/2), Julio Garcia (19-1/2), Alberto Gonzalez (32), Jose Allen (26-3/4), Hildo M. Melendez (33), and Edwin ' I rado tstified hal (Garcia was reasigled to a positionll of 20-25 feet froil Risera (iarcia. Allen. anld Zukaitis located Garcia mriuch closer to Rikera I credit them ` In so finlding I do 11n rely upoll Rivera's timing of Alhberto (ionzalez at Ils ork at;tion hllere " as ai proper business motivation hIr Rivera to ascel;lain whelhlr (ti/ale/ or his Iachine as the cause of decreased productiol l'that it was not rlotii, ted h a desire io inhibit (ionalez' allo1111 or conce( rted altitlVitis is dellllmtiratcd by Ihe fact that Risera had originall reqlllesed I.ulls irad;l, .a supporter of Local 15, to time (ilon- zalz ()nIy vhell irado efused to do so did Rivera assume the task Negron (21-3/4).7 During the first 5 weeks after the strike ended, the same employees did not work any over- time, except for Melendez (4-3/4) and Negron (4-3/4). Clearly, there was no lack of overtime work; the total of overtime hours worked of 1,083 hours during the 5 weeks prior to the strike increased to 1,223-1/2 hours during the 5 weeks after the strike. Respondent does not offer any explanation why the strikers constituted a rather unique group of employees who received no overtime." Rather, it relied solely upon its practice to offer overtime for work on a particular machine to the employee who worked on that machine during the day, and when there was no such work, to offer other jobs by seniority. However, overtime work on Allen's and Garcia's machines was not offered to them, but was worked by nonstrikers. Negron worked three-fourths of an hour during the week ending on Oc- tober 28 and 4 hours the next week, whereas fellow ship- ping employee Scott worked 19 and 16 hours of over- time, respectively, those 2 weeks, and 16 and 13 hours the next 2 weeks, when Negron did not work. There is sufficient evidence of the exclusion of strikers for overtime work to support a finding of a violation of Section 8(a)(3) and (1) of the Act, because they engaged in protected concerted and union activities. 9 Mohican Mills. Inc., 238 NLRB 1242 (1978). 3. The discharge of employees for failure to pay union dues On November 27, Respondent discharged employees Alberto Gonzalez, Hildo M. Melendez, Alton Fahie, Jose Allen, and William Robinson because they failed to pay dues and initiation fees to the Steelworkers. Eleven days earlier Luis Tirado also lost his job when he made known his intent not to pay his dues and, given the option of remaining employed for only 7 more days, chose to leave immediately. These discharges were insti- tuted by letter, dated November 13, from Steelworkers Staff Representative Rosario to Respondent advising that 20 male employees "have refused to execute the check- off authorization cards that were given to them" and that "this is in direct violation" of the collective-bargaining the General Coutsel claims for the first time in his brief that J Cruz anid M Castillo were also deprived of tovertime. but neither was named it the complaint or in the General Counsel's bill of particulars. Because the bill of particulars serves as a precise aid specific notice of what the Gell- eral Counsel is complaining about, it is inappropriate to permit the expan- sionll of the conmplaint at this stage of this proceeding s Of the nonstrikers who worked little or no overtime after the strike, six never worked overtime ad five worked from 2 to 7 hours before the strike ad onile wlrked 5 hours only after the strike ' lln support of this allegation. the General Counsel also relies upon an alleged statemenlt on October 20 by employee Lillian Melendez. Rivera's assistant, in Rivera's presence, made in answer tol Garcia's statement that the employees were going to return to work on October 23. that the strikers might return, but they were nt going to he given any more overtime. Only empltoyee Alberto Gonzalez testified to this incident. which Rivera denied Garcia. whose statement allegedly prompted Me- lecdez' reply, and who, according to Gonzalez, was standing only 2 3 feet aa? frloml Mlclndez. was never questotied regarding the threat: and froin Iis silence. I infer that he would 1otl have corrhoborated G(illalez' testimonlly Further. because Mclendez did not initiate the assignment of osertirne. I find it inlprobable thalt she would have made such a threat I coinclude that the General Counlsel has not proved. by a preponderance of tie esidence. that such a statement was made O.K. MACHINE & TOOL CORP. ' lt agreement, and demanding that Respondent "take imme- diate steps to correct this situation." By letter dated No- vember 16, Respondent advised those 20 employees that they must pay their dues either directly to the Union or by checkoff authorization, or face termination. Many em- ployees complied; however, by letter dated November 27, the named employees (except Tirado) were dis- charged. There is no question that they and Tirado did not comply with the agreement's union-security provi- sion. There is also no dispute that Steelworkers had never before formally requested that its union-security clause be applied to male employees and that no male employ- ees were members of the Steelworkers prior to the strike. Nor is there any dispute that male employees were not discriminated against under the terms of the collective- bargaining agreement, that is, that they were given lesser terms, conditions, and benefits than those set forth in the agreement. However, there is a critical issue whether males were intended to be included within the recognized and facial- ly appropriate unit set forth in the agreement. Respond- ent wrote in its brief that: "The anticipated and usual product of collective bargaining is a written agreement between an employer and its employees' union. In part, this written reduction of the parties' understandings sets forth a discernible dynamic relationship between the bar- gaining parties." The issue is whether, from the perspec- tive of both bargaining parties, the dynamism was meant to affect male employees equally with females. From the Steelworkers' perspective, it was not so in- tended. Only after the strike did it attempt to apply the union-security provision to male employees; yet, as early as 1970, Tirado was employed as an assembler, at which time there were also employed a male porter and two male toolmakers. In about 1974, three males were em- ployed in Respondent's shipping department, and another male assembler was hired.' 0 By 1977, there were three males in the assembly department, three to four in the machine department, two in the shipping department, and one to three inspectors. But Rosario testified at first that there were no male employees until 1978, later changing his testimony to concede that, about 1973, there were male employees in the production and main- tenance unit, as well as male tool-and-die makers. Although both Rosario and Rivera conceded that they knew that there were no male employees who were members of the Steelworkers, Weltman originally denied similar knowledge, yet admitted in his prehearing investi- gatory affidavit that, to his knowledge, no male had joined the Steelworkers. Other than bearing upon Welt- man's motives for misstating his knowledge, it is not par- ticularly important that he knew or did not know. For the purpose of the Steelworkers' position, as a party to the agreement, it is important to discern why Rosario took no action to insure compliance with his bargain. He stated that, when he first ascertained that there were 'o These findings are based primarily on the credited testimony of Tirado. Supervisor Rivera conceded that, in 1975, there were two to three male employees in the production and maintenance unit. not includ- ing tool and die makers Weltman's testimony that there were male pro- duction employees only since the end of 1977 or early 1978 is inaccurate male employees in 1978-testimony I have already dis- credited-he attempted to obtain voluntary compliance by the males, without calling upon Respondent for help. Thus, said Rosario, he personally spoke with the males to convince them to pay dues or sign checkoffs; but that the males rejected his overtures because they desired to be "free riders," taking advantage of the Steelworkers contract without paying for its services. However, he never asked Zukaitis, whom he stated he met in early 1978; and Gonzalez also denied that he was asked by Ro- sario. Rivera was similarly unaware that Rosario made any attempt to sign up the males. In light of Rosario's admission that he knew of male employees since at least 1973, I do not credit his testimony of belated efforts in 1978 to persuade them to become members of the Steel- workers. It Nor am I persuaded that, in July 1978, Rosario ap- proached Kober, another of Respondent's officers, for aid in persuading the males to join the Union. According to Weltman, with whom Kober supposedly consulted, Respondent's position was firm in refusing to assist the Steelworkers in its internal problems and that position, testified Rosario, was relayed to Rosario. I can well ap- preciate Respondent's reluctance to inject itself at that point, preferring to wait for the Union's efforts to en- force the contractual obligation of its union-security pro- vision. However, what is alleged to have happened in July is quite contrary to the later events of November, when the Union requested that Respondent take immedi- ate steps to cure the failure of the male employees to sign checkoff authorizations. Respondent immediately complied, voluntarily converting what was an illegal demand by the Steelworkers, International Union of Elec- trical, Radio and Machine W'orkers, Local 601, AFL-CIO (Westinghouse Electric Corporation), 180 NLRB 1062 (1970), into a valid demand for compliance with the con- tract. Although the complaint lacks any allegation of a violation of Section 8(a)(2) of the Act, the actions of Re- spondent clearly indicate its willingness to do the Steel- workers' bidding and create substantial doubts that the conversation between Kober, who did not testify, and Rosario ever took place. I find that it did not. Rather, I find that Rosario was convinced that the agreement did not cover the males. There is some con- tractual basis for this finding. 2 Although Respondent takes the firm position that all males were included in the production and maintenance unit, Rivera's testimony L In light of the strike later in the ear. Rosarlo's testminen mnakes little sense The male enmployees did not wish to remain "free riders' Io take adalanlage of the Stecliorkers conltract Rather, he ih1iitlgil ie terms negotialed b the Stcelsorkers Imeaning the females) did nol sati- fy the needs of the males. he! swanted a new labor orgalnl7tn, or which they sould presnrm;lbl pas dues. so that they s ulid hbe f.llrls rep resented, which they thought , ais lacking in the hen prscnt sitilillol 12 There isar so an historical hasis foir the disislln f co, cragc \ hl (iyrotronics. Inc. as first org.anized bh Steelworkers. it sas inrls for ils Coiinner Street premises. , hich 'sas engaged in the a,,ssemhbl f Respmid ent's product, work performed almost exclasi'el hN sA, omren i sroin ic. Inc. also corlducled operaiolln at ilo other Icat;lllins, sshc rI ,I- chines scre operated and miallltained h male emnploees. ilot repi eslied h the Sleel\ orkers X5len the lter .o prenises closed.i Ihe i clhtw . sere ritoed and the nlee rploce. src a.pparent}5 (tirlIerrdtl (', 1i- ners Street ii ahmillt I7 OK. MACHINE & TOOL CORP 213 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raises a question of what crafts were intended to be in- cluded in that unit. To him, Tirado, who described him- self as an assembler, was a setup man, and setup employ- ees (all of whom are males) were not production and maintenance employees, but were as close as one can get to tool and die makers, which all parties concede are not part of the unit, although they are not specifically ex- cluded from the unit. Rosario testified that production and maintenance em- ployees covered by the contract were assemblers, setup men, helpers, machine operators, and shipping and re- ceiving employees. In the investigatory affidavit given by him to the Region prior to the hearing, however, Ro- sario averred that the contract covered all assemblers and that, in 1973, Respondent refused to recognize the Steelworkers for setup employees, machinists, and other employees besides assemblers. Further, he stated: About five (5) years ago, we had a brief strike over benefits and recognition for the Steel Workers as representative of the men. Only the women struck and we went back without ever resolving the matter. The "men" he referred to included not only tool and die makers but also production and maintenance, includ- ing shipping, employees. Finally, Rosario also stated in his affidavit that Respondent refused to apply the con- tract to all of its production and maintenance employees. Rosario's statement, which I find more truthful than his oral testimony, Alvin J. Barr and Co. Inc., 236 NLRB 242 (1978),': is sufficient to show Respondent's knowl- edge that its agreement with Steelworkers did not cover the male employees. Further, I find such knowledge from its response to Local 815 and the strike on October 5. It was silent about any contract when Local 815 made its demand for representation, merely referring that union to the procedures under the Act. Then, on Octo- ber 6, Weltman advised a meeting of the employees who had reported to work that they were free to select the union they wanted, and to decide the union question as they saw fit, calmly and without pressure or intimidation. Although he then distributed and discussed the benefits of a premature extension agreement allegedly bargained by the Steelworkers during early 1978 and ratified by the Steelworkers' female members, at no time did he make clear that the agreement covered males and that males had no rights to gain recognition for a different union. Curiously, the extension agreement revises the defini- tion of the unit, omitting the inclusion of "maintenance" employees from the production and maintenance unit and specifically excluding from the unit "toolmakers." Perhaps that description is a little closer to the actual practice of the parties, and may explain the failure of the Steelworkers to apply its union-security provision to the porter. In any event, it is clear that Respondent deemed setup employees to be akin to tool and die makers, and not covered by its collective-bargaining agreement. I find that the discharge of Tirado and Robinson, both setup employees, was wholly unwarranted because they were not considered to be within the appropriate unit : [nforcement denied on other grounds 598 F.2d 1267 (2d Cir 1979) and under no circumstances could the union-security provision be applied to them. Their termination was an effort to encourage their membership in Steelworkers and was wholly outside the proviso to Section 8(a)(3) of the Act. Further, I conclude from all the credited evidence 4 that male employees were not considered production and maintenance employees within the meaning of the agree- ment's recognition provision. The application to them of the union-security provision was patently in violation of Section 8(a)(3) and (1) of the Act, in order to rid Re- spondent of discordant employees and the threat of orga- nization by Local 815 or another labor organization. 15 4. The discharge of Edwin Negron The General Counsel contends that employee Edwin Negron was discharged by the Employer on November 20, not because of his unexcused absences from work, as Respondent argues, but because of his activities on behalf of Local 815 and his concerted protected activities. In support, the General Counsel relies exclusively' 6 on Re- spondent's earlier August 4 commendation of Negron as a capable employee and on a review of the Respondent's records of absences, showing other employees who were not disciplined despite their equal or more serious inci- dents of absenteeism, thus proving disparate treatment. To prove disparate treatment, it must be demonstrated that conduct of employees in like situations was treated dissimilarly. Here, there is no proof of any similarity of violations which might support the inference that Negron was selected for discipline, whereas others were not. The General Counsel relies only upon a summary of absences of employees before the strike, arguing that be- cause many employees had the same number of or more absences than Negron, and they were not discharged, it follows that Negron was treated differently, and the dif- ferent treatment was solely the result of Negron's partici- pation in the strike. The difficulty with that argument is that the chart does not differentiate between excused and unexcused absences; and Negron was dismissed because of a series of unexcused absences. 7 First, he was absent without justification on October 23 and 26, for which he was warned in writing. Then, on Friday, November 17, he announced late in the day that he was leaving early for a doctor's appointment, contrary to Respondent's policy that employees were to give ample notice of early depar- tures so that it could plan its workload for that day. Be- 14 As noted, I have generally credited Rosario's affidavit rather than his oral testimony, which contained numerous contradictions and incon- sistencies. It as obvious that Rosario wsas attempting to tailor his ver- sion of the facts to protect Respondent's actions and the Steelorkers' claim to a broader jurisdiction s Responldent argues that this finding represents a vast variance with the the theory of the complaitl herein. The complaint. even if not precisely on point and if somewhat ambiguous, may fairly be read to give Re- spotidel notice of the essence of the allegation; and the record devel- oped herein demonstrates that all facts and theories were fully litigated by Respondent "' Negron did not testifr A Employee Gonzalez testified that, if all employee gave an excuse for his absence, it would niormally be accepted; and that an employee was asked about an absence only when he did not notify Respondent about it. O.K. MACHINE & TOOL CORP. 215 cause of the backlog in Negron's work area, his early leaving could not be approved. However, an accommo- dation was agreed upon, on the conditions that Negron work on Saturday, November 18, and that he bring to work on Monday a note from his doctor. Despite Ne- gron's agreement, he did not work on Saturday and ap- parently came to Respondent's plant on Monday but stated that he was not working. As a result, he was ter- minated that Monday. When Negron reported to work on Tuesday, but without any medical excuse, his termi- nation was reaffirmed. I conclude that Negron was terminated for cause, that he was not treated disparately, and that Respondent did not violate Section 8(a)(3) and (1) of the Act. 5. Warnings to employees On November 17, Zukaitis, apparently having the memorandum of the extension agreement in hand, asked Steelworkers Shop Steward McCray when the current agreement expired, stating that there was some confusion among the employees. McCray refused to answer be- cause she was eating. Zukaitis then said that the employ- ees were being misled when they were told about the new contract' 8 and returned to McCray after lunch to ask for it again. She refused to give him a copy, and a verbal altercation ensued, with some yelling, and foul cursing by McCray, and some disruption of work. Not- withstanding that both McCray and Zukaitis participated in the argument, only Zukaitis was given a warning which, contrary to Respondent's policy, was not a first or second warning, but an "only" warning, with the next incident subjecting Zukaitis to "immediate dismissal." Respondent offered no explanation for its one-sided treatment, its failure to investigate the dispute, and its warning directed solely at Zukaitis and not McCray, whom employees often heard shouting and cursing. I infer that Zukaitis, recently returned from the strike, was ripe for discipline; while McCray, who worked during the strike and was the Steelworkers shop steward, was immune from discipline. Zukaitis was treated disparately from McCray, as a result of his activities in the strike, and in violation of Section 8(a)(1) of the Act. The General Counsel also contends in his brief, in most general terms, that, immediately after the strike ended, Respondent issued a spate of warnings, without any appreciable increase in lateness and absence patterns, thus showing a pattern of discipline to punish the strikers of their concerted and union activities, rather than for le- gitimate purposes. The complaint does not allege nearly so broad an allegation, but rests on specific warnings to Radames Garcia on October 27 and 30, Edwin Negron on October 27, Alton Fahie on November 2 and 8, and Zaida Christian on November 2.'9 The General Coun- sel's brief makes no argument specifically addressed to these warning notices (other than Negron, which I have determined, supra, did not violate the Act), yet there is '8 Gonzalez understood that, by agreeing on October 20 to return to work, the Steelworkers contract was to expire in 1979 and that the males, after waiting for 3 months, would then be able to have Local 815 repre- sent them. Obviously, an extension of the agreement to 1981 would have been of substantial interest to the male employees. 19 None of these employees testified no allegation that the claims have been abandoned. Indeed, in a proposed order submitted with the brief, the General Counsel directs specific relief to cure these al- leged violations; and so, with little guidance, they must be disposed of. The warnings to Fahie concerned his refusal to follow instructions of a supervisor and his alleged encourage- ment of another employee to refuse to follow a supervi- sor's instruction. Before the strike, another employee (Pell) received a warning for ignoring a supervisor's instructions. I find nothing in the record to prove that the warnings to Fahie were disparate, unfounded, unwar- ranted, or resulted from Fahie's participation in concert- ed and protected and union activities. Radames Garcia's first warning was for lateness and failure to call in; the second was for excessive lateness. There is a patent difference between the two warnings- one is levied because the employee has not notified Re- spondent of lateness ahead of time, so that Respondent could plan its workday; the other demonstrates merely a pattern of lateness, even with prior notification, which indicates that the employee is, in general, unreliable. There is no proof that any other employee had not called in ahead of time to notify Respondent of his late- ness and was not issued a warning. As a consequence, the first warning is not disparate, and proof is wholly lacking that it was prompted by Garcia's participation in the strike. The second warning is a different matter. Al- though there were warnings of two employees earlier in 1978 solely for lateness, there is sufficient question raised by the events herein why Garcia was selected for this warning after the strike. In particular, Garcia was late three times during the 2 weeks ending November 4. There were other employees, all nonstrikers, who were late more times during the same period who were not warned: Caraballo (6, and 3 absences), Grady (5), L. Me- lendez (4), M. Morales (4), R. Ramirez (4), C. Rivera (4), and Santiago (4). The General Counsel presented suffi- cient proof to shift the burden of an explanation (or, at least, a burden of persuasion) to Respondent, which has remained silent. I find this warning to be disparate, pre- textual, and caused solely as a result of Garcia's partici- pation in the strike. Christian was warned because she was late 10 times in the prior 30 days and was absent 4 times. Her record of lateness and absenteeism was certainly not the epitome of admirable employee conduct. For the weeks ending Sep- tember I to November 4, 2 days after the date of the warning, she was late on 34 days and absent on 7-1/2 days, yet she had never been warned at an earlier date. Her tardiness bested all other employees, although some ran not too distant seconds: I. Santiago (27, and 7 ab- sences), L. Melendez (24), A. Hanzah (21), C. Rivera (20), and C. Williams (18). Only Williams was warned by Respondent, on the same day as was Christian, for her latenesses and absences (4 in the prior week). It is difficult to discern a rhyme or reason in Respond- ent's policy, but that does not necessarily support the General Counsel's theory. There must be some proof, even if circumstantial or inferential, that action was taken against Christian in violation of the Act. The Gen- O.K. MACHINE & TOOL CORP. 215 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral Counsel relies upon the fact that Christian was one of the very few females who joined in the strike, albeit very briefly. That is correct. It is also correct that she immediately returned to work, continued throughout the strike, and was awarded with a bonus together with all of the other nonstrikers. Despite the fact that there are suspicions of a violation of the Act, the General Counsel has not proved its allegation by a preponderance of the evidence. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON INTERSTATE COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW I. Gyrotronics, Inc., and O.K Machine & Tool Corp. constitute a single integrated business enterprise and a single employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. Local 815, International Production, Service and Sales Employees Union and Local 14756, United Steel- workers of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By photographing and making lists of employees as they peacefully picket; by threatening striking employees that they are going to be finished when the strike is over; by granting special bonuses in compensation to employ- ees who refrain from lawful picketing; by harassing and intimidating employees by following them and keeping tighter controls on their movements; and by issuing warning notices to employees because they engaged in protected concerted and union activities, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By denying overtime work to employees because they engaged in protected concerted and union activities and by discharging employees in order to discourage their membership in Local 815 and encourage their mem- bership in Steelworkers, Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not otherwise violated the Act, except as specifically found herein. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall order it to cease and desist there- from in the future. Having found that Alberto Gonzalez, Hildo M. Melen- dez, Alton Fahie, Jose Allen, William Robinson, and Luis Tirado were discharged in violation of Section 8(a)(3) and (I) of the Act, I shall order that they be of- fered immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and that they be made whole for any loss of earnings or other benefits they may have suffered as a result of the discrimination practiced against them. Backpay shall be computed in the manner provided in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in accordance with the formula set forth in Florida Steel Corporation, 231 NLRB 651 (1977).20 Having found that the payment of the bonus of I day's pay violated Section 8(a)(l) of the Act, I shall order Re- spondent to pay all striking employees who were em- ployed at the conclusion of the strike and who did not receive the bonus, the amount of I day's pay, with inter- est as set forth, supra. Having found that Respondent withheld overtime work from Keith Zukaitis, Radames Garcia, Juan Garcia, Alberto Gonzalez, Jose Allen, Hildo M. Melendez, and Edwin Negron upon their return to work, I shall order that Respondent, to the extent it has not already done so, immediately restore them to the assignment of overtime work as the practice existed prior to October 5, 1978, and make them whole for any loss of earnings and com- pensation, with interest as set forth, supra, they may have suffered as the result of the discrimination again them by discriminatorily denying the overtime. Although there is no allegation of a violation of Sec- tion 8(a)(2) of the Act,2 ' Respondent overtly extended the coverage of its contract, forced male employees into paying dues to the Steelworkers, and discharged those who refused to pay their dues and initiation fees. In order to fully effectuate the purposes of the Act, I find it obvious that the existing agreement between Respondent and Steelworkers was not intended to apply to male em- ployees and may not in the future apply to male employ- ees. In so ordering, I recognize that the remedy leaves an existing agreement applicable only to women, a dis- criminatory sexual division that the Board would never tolerate under Section 9 of the Act. Cuneo Eastern Press, Inc. of Pennsylvania, 106 NLRB 343 (1953); United States Baking Company, Inc., 165 NLRB 951 (1967); Land Title Guarantee and Trust Co., 194 NLRB 148 (1971). Howev- er anomalous as that may be, no allegation of the com- plaint attacks the Steelworkers contract directly; and relief requiring Respondent to withhold recognition of the Steelworkers and to cease giving effect to the agree- ments for all purposes, would, in these circumstances, be inappropriate. This is not to say that the relief granted places an affirmative duty upon Respondent to recognize and continue dealing with the Steelworkers as the agent for such a patently inappropriate unit. Further, notwith- standing the absence of an 8(a)(2) allegation, the relief which I recommend would be lacking if I were to omit 20 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The General Counsel's motion to increase interest to 9 percent per annum is hereby denied. Michael N. Schaefer. an Individual Proprietor, 246 NLRB No. 29 (1979). 2' The unfair labor practice charges filed in Cases 2-CA-16088 and 2- CA-16093 alleged an 8(a)(2) violation, but the complaint is silent. How- ever, Steelworkers is named in the caption as a Party in Interest. O.K. MACHINE & TOOL CORP. 217 the customary remedial practice of ordering reimburse- ment by Respondent to the employees involved for dues and fees unlawfully exacted from them, with interest as set forth, supra, as modified in Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142 (1962). Finally, the General Counsel seeks a broad order re- quiring Respondent to cease and desist from violating the Act in any other manner. The violations found herein, although serious, are not egregious within the meaning of Hickmott Foods, Inc., 242 NLRB 1357 (1979). Gold Kist, Inc., 245 NLRB No. 142 (1979); Skrl Die Casting, Inc., 245 NLRB No. 134 (1979). A narrow order is there- fore appropriate. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 2 The Respondent, O.K. Machine & Tool Corp. and Gyrotronics, Inc., Bronx, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Photographing or making lists of employees as they peacefully picket. (b) Threatening striking employees that they are going to be finished when the strike is over, in order to dis- courage them from engaging in protected concerted and union activities. (c) Granting special bonuses in compensation to em- ployees who refrain from lawful strike activity. (d) Harassing and intimidating employees by following them and keeping tighter control on their movements, because of their having engaged in protected concerted and union activities. (e) Issuing written warnings to employees because they engaged in protected concerted and union activities. (f) Discouraging protected concerted activities or ac- tivities on behalf of Local 815, International Production, Service and Sales Employees Union, by denying employ- ees overtime work or in any other manner discriminating against employees in regard to hire or tenure of employ- ment or any term or condition of employment. (g) Discharging or threatening to dismiss employees, thereby discriminating in regard to hire and tenure of employment in order to discourage membership in Local 815, International Production, Service and Sales Em- ployees Union, or encourage membership in Local 14756, United Steelworkers of America, AFL-CIO, or any other labor organization. (h) Recognizing the Steelworkers as the bargaining representative of any of its male employees for the pur- poses of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have demonstrated its exclusive 22 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes majority representative status pursuant to a Board-con- ducted election among the said male employees in a unit found appropriate. (i) Giving effect to the collective-bargaining agree- ments effective as of May 25, 1976, and May 25, 1978, between Respondent and Steelworkers or to any exten- sion, renewal, modification, or supplement thereof inso- far as it applies to its male employees; provided, howev- er, that nothing herein shall require Respondent to vary or abandon any wages, hours, or other substantive fea- tures of its relations with its male employees which Re- spondent has established in the performance of the con- tracts, or to prejudice the assertion by employees of any rights they may have thereunder. (j) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Alberto Gonzalez, Hildo M. Melendez, Alton Fahie, Jose Allen, William Robinson, and Luis Tirado immediate reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent po- sitions, without loss of seniority or other rights or privi- leges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination prac- ticed against them, in the manner set forth in the remedy section of this Decision. (b) Restore, to the extent it has not already done so, the assignment of overtime work to Keith Zukaitis, Ra- dames Garcia, Juan Garcia, Alberto Gonzalez, Jose Allen, and Hildo M. Melendez, as the practice existed prior to October 5, 1978, and make them and Edwin Negron whole in the manner set forth in the remedy sec- tion of this Decision, for any loss of overtime pay they may have suffered as the result of Respondent's discrimi- natory reduction of overtime opportunities. (c) Pay 1 day's wages, with interest, from October 20, 1978, to each of the employees who engaged in the Oc- tober 1978 strike against Respondent, who did not re- ceive the bonus paid on October 20, 1978, to its nonstrik- ing employees. (d) Expunge from its records and from the employees' personnel files the written warnings issued to Keith Zu- kaitis on November 17, 1978, and Radames Garcia on October 30, 1978, as a result of their protected concerted and union activities and make whatever record changes are necessary to negate the ffect of the issuance of such warnings. (e) Reimburse its male employees for any initiation fees, dues, or other moneys paid or checked off pursuant to the agreement applied to its male employees or to any extension, renewal, modification, or supplement thereof, or to any agreement superseding it, plus interest as set forth in the remedy section of this Decision. (f) Withdraw and withhold all recognition from Steel- workers as the exclusive bargaining representative of its male employees for the purpose of dealing with it con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said labor organization shall have dem- O.K. MACHINE & TOOL CORP. 217 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD onstrated its exclusive majority status pursuant to a Board-conducted election in a unit found appropriate. (g) Post at its Bronx, New York, place of business copies of the attached notice marked "Appendix." 23 Copies of said notice, in both English and Spanish, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's authorized rep- resentative, shall be posted by Respondent immediately :' In the event that this Order is enforced by a Judgment ol a lUnilcd States Court of Appeals, the words in the notice reading "lP'osied hy Order of the National Labor Relations Board" shall read "Posted Pursu ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (h) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor prac- tices not found herein.