C. B. Cottrell & Sons Co.

In the Matter of C. B. COTTRELL & 'SONS COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS , LODGE No. 627, AFFILIATED WITH THE A. F. of L. Case No. C-1856.-Decided August 19, 1941 Jurisdiction : machinery manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: bringing employees into conference with- out knowledge or consent of the union and permitting them to remain over union protest ; making anti-union statements and misrepresentations of em- ployees' rights in the presence of these employees ; publishing a notice carrying implication that employees would gain nothing by joining a labor organization. Discrimination : depriving unfair labor practice strikers of group insurance privileges upon resumption of employment while restoring such privileges to employees laid off as a result of the strike. Collective Bargaining : employer admitted at hearing that union represented a majority-employer' refused to reduce terms of a contract to writing- employer also refused to bargain collectively in good faith with the union by its failure to offer written or definite counter-proposals generally to the union 's proposals and by its delay in presenting its position concerning indi- vidual points raised in the negotiations. Remedial Orders : employer ordered to bargain with the union and to embody understandings reached if requested to do so by the union in a signed agree- ment ; restoration of insurance privileges ordered to striking employees on same terms as existed before strike and in the event any of the striking employees have died beneficiary of such deceased employee to be paid the difference between the former and the new insurance policies. Unit Appropriate for Collective Bargaining : employees in the production and maintenance departments and in the stockroom , excluding pattern makers, molders, core-makers, and supervisory employees. Mr. Edward Schneider, for the Board. Mr. Allan Seserman, of Boston, Mass., for the respondent. Mr. Reginald T. Anderson, of Edgewood, R. I, for the Union.- Mr. Herbert N. Shenkirn, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed on January 15, 1941, by Inter- national Association of Machinists, Lodge No. 627, affiliated with the 34 N. L. R. B., No. 67. 457 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston Massachusetts), issued its complaint dated January 16, 1941, against C. B. Cottrell & Sons Com- pany, Pawcatuck, Connecticut, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance that the respondent (1) on or about January 4, 1940, and at all times thereafter, refused to bargain collectively with the Union within the meaning of the Act, in that it refused to reduce to writing results of collective bargaining negotiations with the Union and failed to bargain collectively with the Union in good faith in respect to rates of pay, wages, hours of employment, and other conditions of employment; (2) between January 4, and June 6, 1940, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by the foregoing refusal to bar- gain; (3) by the foregoing acts caused a strike of its employees about June 6, 1940; (4) in June 1940, during the period of the strike, can- celed life insurance policies of approximately 110 of its striking em- ployees; and (5) reinstated the approximately 110 employees after the termination of the strike but refused to restore to said employees their life insurance in accordance with their seniority rights and length of service, thereby discouraging membership in the Union by discrimi- nation in regard to the terms and conditions of employment of said employees. On January 20, 1941, the respondent filed its answer admitting sub- stantially the allegations of the complaint concerning the nature and interstate character of its business, but denying that it had engaged in or was engaging in the alleged unfair labor practices. Pursuant to notice, a hearing was held from January 27 to 30, 1941, at Westerly, Rhode Island, before 'Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were 'represented by counsel and the Union appeared through its representative; all participated in the hearing. All par- ties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. During the hearing the Trial Examiner made numerous rulings on motions and on objections to the admission of evidence. The Trial Examiner reserved decision on several motions and objections made C. B. OOTT'RELL & iSONS COMPANY 459 by the respondent during the course of the hearing, and denied or over- -ruled them in his Intermediate Report, referred to below. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing the Trial Examiner offered all par- ties an opportunity to argue orally before him but only counsel for the Board did so. All parties were also advised that they might file briefs with the Trial Examiner and the respondent did file such a brief. On April 4,1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and the Union, wherein he found that the respondent had engaged in and was engag- ing 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 cease and desist from such prac- tices, that it bargain collectively with the Union and incorporate any understanding that might be reached in a signed agreement, that it procure a restoration of life insurance privileges for those striking employees who had been deprived of them, and that it take certain other remedial action. The respondent filed exceptions to the Intermediate Report on May 8, 1941. No briefs have been filed with the Board by,any of the par- ties. At the request of the respondent a hearing was held before the Board in Washington, D. C., on July 1, 1941, for the purposes of oral argument. The respondent and. the Union were represented by counsel and participated in the argument. The Board has considered the respondent's exceptions and, in so far as the exceptions, are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT C. B. Cottrell & Sons Company, a Delaware corporation, has its principal office and place of business at Pawcatuck, Connecticut. At this place of business, herein called the Pawcatuck plant, the re- spondent is engaged in the manufacture, sale, and distribution of printing presses, accessory machinery, and machine tools. During the year 1939 the respondent purchased raw materials for its Paw- catuck plant having a total value of $55,134.43, more than 90 per cent of which were shipped to the Pawcatuck plant from points outside . the State of Connecticut. For the same year the finished products of the Pawcatuck plant had a total value of $1,233,853.33, 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practically all of which were shipped to points outside the State of Connecticut., The, respondent has a manufacturing branch in - Milwaukee, Wisconsin, and maintains sales offices in New York City and Chicago, Illinois. II. THE ORGANIZATION INVOLVED International Association of Machinists, Lodge No. 627, affiliated with the American Federation of Labor, is a labor organization ad- mitting to membership production and maintenance employees of the respondent at the Pawcatuck plant. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that the respondent's employees at the Pawcatuck plant in the production and maintenance departments and in the stockroom constitute a unit appropriate for the purposes of collective bargaining. By letter dated February 19, 1940, addressed to the Regional Di- rector, the respondent recognized the Union as the sole bargaining representative of the "employees in the production and maintenance departments and in the stockroom." The record is clear, however, that the recognition sought and granted excluded pattern-makers, molders, core-makers, and supervisory employees. On July 10, 1940, as part of a strike settlement, referred to below, the respondent, in writing, recognized the Union as the exclusive bargaining represen- tative of its employees within certain job classifications.' The unit for which the Union was recognized on February 19 and July 10, 1940, is the same. The respondent did not raise any question about the appropriateness of the bargaining unit after February 19, 1940. We find, as did the Trial Examiner, that the employees of the re- spondent at the Pawcatuck plant in the production and maintenance departments and in the stockroom, excluding pattern-makers, mold- 'The facts concerning the respondent's business are based upon a stipulation entered into at the hearing between counsel for the Board and for the respondent It was further stipulated at the hearing, and we find , that substantially the same percentages of inter- state shipments were made to and from the Pawcatuck plant during 1940. 2 These classifications are : apprentices , assemblers, blacksmith welder and helper, boring- mill operators, carpenters, clerks, cranemen , cranemen's helper, drill press operators, electrician, filer-scraper-burrer, grinders ( internal and external ), helpers, horizontal boring bar operator, lathe operators, lay-out man, learners , maintenance machinists , maintenance helper, millwright, milling-machine operators , planer operators, planning clerk, power hack saw operator, production painters, shaper, stock selector, tool grinder, tool makers, and truckers. C. B. CO°TTRELL & SONS COMPANY 461 ers, core-makers, and supervisory employees, at all times material herein, constituted and now constitute a unit appropriate for the purposes of collective bargaining, and that said unit insures to 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 the Union of a majority in the appropriate unit The responded admitted at the hearing that the Union "was the majority representative from February 19, 1940, on through July .11, 1940," of, the employees in the appropriate unit. The question of majority representation in such unit by the Union was never raised after February 19, 1940, and it is plain from the record that t:he Union was the majority representative after that date. We find, as did the Trial Examiner, that on February 19, 1940, and at all times thereafter, the Union was and has been the duly desig- nated representative of a majority of the respondent's employees in the appropriate unit, and that by virtue of Section 9 (a) of the Act the Union was the exclusive representative of all the employees in such unit for the purposes of collective bargaining. 3. The refusal to bargain ; the strike During August 1939 Reginald T. Anderson, a Grand Lodge rep- resentative of the International Association of Machinists, herein- after called the I. A. M., began the organization of the respondent's employees. On January 3, 1940, the Union received its charter from the I. A. M. After Anderson had received about 59 signed applications for mem- bership in the I. A. M., he wrote to the respondent on December 20, 1939, stating that the Pawcatuck plant employees had selected the Union as their bargaining representative, and requesting a conference. This request was granted and on January 4, 1940, representatives of the Union met with Carl G. Stillman, the respondent's treasurer, and A. M. Cottrell, one of its officers. Anderson presented a proposed contract as a basis for negotiations. When Stillman asked Anderson whether the Union insisted upon the closed-shop provision in the contract, Anderson replied that the Union was there to bargain. After the respondent stated that it could not accept the proposed agreement, Anderson asked that a counter-proposal be submitted at the next meeting. Stillman replied that he would have something for the Union to consider at the next conference. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The second conference was held on January 23, 1940. When Still- man escorted Anderson and four Union committeemen into the con- ference room, the Union representatives found A. M. Cottrell and C. P. Cottrell, another officer of the respondent, present with 12 of the respondent's employees. Anderson objected to the presence of the 12 employees and stated that the Union had been chosen by the employees as their bargaining representative. C. P. Cottrell replied that he would have called in all the employees if there was sufficient room, and that he wanted these employees to hear what he had to say. The 12 employees were present during the ensuing discussion. C. P. Cottrell then read a statement of the respondent's policy, and, among other things, stated that the Supreme Court of the United States had ruled that employers did not have to sign agreements with unions. He further stated that it was a known fact that there was more trouble in shops where there were unions than in those in which there were no unions. Anderson interrupted C. P. Cottrell Lo ask his authority on both these points and was told to remain quiet until Cottrell had finished speaking. Later at the conference Anderson said that he considered these statements to be violations of the Act; he was told that the respondent would "worry about that." Thereafter, the parties discussed the Jones & LaugMin case,3 the respondent contending and the Union denying that that case decided that employers did not have to sign written contracts. The parties discussed business conditions and it was brought out that at the respondent's plant in Milwaukee, Wisconsin, where it has a written contract with a labor organization, the employees received a minimum wage of 80 cents an hour. C. P. Cottrell thereupon stated that the respondent considered the employees in the Pawcatuck plant less efficient than those in the Milwaukee plant. Anderson then proposed that the parties proceed to negotiate on the agreement; Stillman replied that there was no more time. No counter-proposals to the Union's proposed contract were presented by the respondent. We find, as did the Trial Examiner, that the respondent, by bringing 12 of its employees into the conference of January 4 with- out the knowledge or consent of the Union and permitting them to remain over the protest of the Union, and by reading a statement of policy implying that unions were troublemakers and stating that employers were not obliged to enter into written contracts with the exclusive bargaining representative of their employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. This meeting had been expressly scheduled for a discussion of working conditions between 8 National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U. S. 1. C. B. COTTIR'ELL & SONS COMPANY 463 representatives of the Union, whose claim to represent the employees had not been contested, and the respondent. The respondent con- verted the meeting into a forum for anti-union statements and mis- representations of the employees' rights which would be carried back to the employees generally by the 12 employees called in by the respondent. We find that the respondent by these acts intended to lower the prestige of the Union and to discourage union membership and activity. The Union called a conciliator of the United States Department of Labor, one Gill, into the third conference, held on January 31, 1940. In a discussion between Gill, Anderson, and Stillman the events of the conference of January 23 were outlined. Gill asked Stillman if the respondent recognized the Union as sole bargaining representative, and was told that the respondent was waiting for notification from the Board on that point. This was the first time the respondent raised any question concerning the Union's right of representation. Ander- son then stated that he would try to straighten this question out by securing certification of the Union by the Board. On the following day, February 1, the respondent posted a notice on the plant bulletin boards purporting to answer questions concern- ing the rights of employees to join unions in a manner conforming to the principles of the Act. The notice read in part as follows : It is the right of every employee to join a labor organization and it is the right of the labor union to request a contract giving preference to its members, but, it is also the right of the Company to refuse any such request,-and each employee of this Company can be assured that this Company will refuse any such request. The Supreme Court of the United States held, with respect to the Wagner Act, "The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer from refusing to make a collective contract and hiring individuals on whatever terms the employers may by unilateral action determine." 4 That is the law on that subject. Each employee in our plant is entitled to exercise his own inde- pendence of judgment free from any intimidation or coercion from any source. Coercion and intimidation from any source on plant premises shall not be tolerated. Solicitation of any kind, the distribution or posting of any material, group congregating or participation in any activity * This quotation is taken from the text of the Jones & Laughlin decision , footnote 3, supra. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than Company business is not permitted on Company prop- erty, except on special permission granted by the management. This plant will continue in the future as in the past to operate as a place where any man can work and where he will receive equality of treatment whether he does or does not belong to a labor organization. This notice was posted the day after the respondent had first raised the issue of representation and had required proof of the Union on the matter. The notice follows a pattern often followed by employers when employees, through labor organizations' of their own choosing, are in the process of laying the foundation for collective bargaining. The time and circumstances of the publication of this notice, and the implication therein that employees would gain nothing by joining a labor organization, make the notice intimidatory, coercive, and vio- lative of the Act. The notice cannot be reaonably disassociated from the respondent's interference on January 23, 1940. We find, as did the Trial Examiner, that by publishing this notice the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.S On February 14 Knowlton, a representative of the Board, conferred with Stillman and Anderson. Theretofore, Anderson had filed a peti- tion for certification with the Board, and the respondent had consented to have the membership application cards of the Union checked against the respondent's pay roll. On February 19 the respondent, as noted above, recognized the Union as the exclusive bargaining representa- tive of its employees in the appropriate unit and did not thereafter question the right of the Union to represent such employees. We consider the respondent's interferences with the rights of its em- ployees' self-organization prior to February 19 as background material to the determination of a subsequent refusal to bargain. At a conference between a committee of the Union and the respond- Ent on February 22, 1940, a tentative agreement on a seniority clause was reached. There was no discussion of a written contract. On February 27, at another conference, the respondent presented a counter-proposal on seniority, differing from the proposal tentatively agreed upon at the previous conference. Anderson stated that the Union was insisting upon a written, signed contract and asked Still- man and A. M. Cottrell whether, if the Union agreed to the respond- ent's former statement of policy, the .respondent would put the state- 5 Cf. N. L. R B. v . The Griswold Manufacturing Company, 106 F. (2d), 713, 722 (C. C. A. 3 ) : "It is because of its [Congress ] recognition that the employee is sensitive and responsive to even the most subtle expression on the part of his employer , whose good will Is so necessary , that limitations have been placed upon the activities of the employer in carrying out the principle of collective bargaining." C. B. CO,TPR'ELL & SONS COMPANY 465 ment into a written and signed contract. Stillman replied that he did not believe a written agreement was necessary 6 The matter of a signed and written contract is not a term or condition of employment about which there can be bargaining. Rather, it is a requirement of collective bargaining, and the exclusive bargaining representative of the employees may, as a matter of right, request' that any agreement that is reached be reduced to writing. By taking the position that it would not put into writing the terms of any contract agreed upon, the respondent refused to bargain collectively with the Union within the meaning of the Act.7 At a conference in the Board's Regional Office in Boston on March 19, the Regional Director discussed with representatives of the Union and the respondent the posting of the notice on February 1, and stated that a feeling prevailed that the notice had the effect of discouraging organization among the respondent's employees. The respondent agreed to remove the notice, and did so on March 26. - Representatives of the respondent and the Union met again on March 26. Rates of pay and seniority were discussed, but no definite result was reached. At the next meeting, on April 3, Anderson sug- gested the use of arbitration and that the respondent permit a con- ciliator to sit in on further negotiations. The respondent refused both these requests. Nothing was accomplished at this meeting. On April 10 the respondent presented to representatives of the Union a "job classification" list and added that, since the respondent had been working on this classification for a long time, the Union had nothing to do with its preparation or presentation. Anderson asked the respondent to list the rates of pay for the various job classifications, expressed dissatisfaction with the progress of the negotiations, and again suggested arbitration. Again, nothing was accomplished at this meeting. The Union arranged for the next meeting between it and the respondent to be held before the Connecticut State Board of Mediation and Arbitration. At this meeting, held on April 16, Stillman made it clear that the respondent would not enter into any written contract with the Union." At the next meeting between the respondent and the Union, on April 30, the respondent furnished a wage scale to sup- plement the "job classification" list it had submitted on April 10. The respondent still refused to agree to enter into any written contract. The Union committee advised the respondent that the Union had taken 'Stillman stated further that the respondent had been doing business with its em- ployees for many years without having any agreement, and he did not see why one was needed now. 'This` question has finally been put to rest in H. J. Ilecnz Company v. N. L. R. B., 311 U. S. 514. The transcript of the proceedings before the State Board was received in evidence. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a strike vote, in reply to which the committee was informed that the employees would not get any unemployment compensation if they went on strike. Nothing was accomplished at the next meeting between the respond- ent and the Union on May 7, and on May 23,1940, another meeting was held at the Board's Regional Office in Boston. The respondent's rep- resentatives at this meeting still refused to enter into a written con- tract with the Union. Anderson, after mentioning the refusal of the respondent to permit a conciliator to sit in on the negotiations or to agree to an arbitration procedure, stated that it appeared the only way to secure compliance with the law was to strike. On June 6, Owens and Hargraves, Union committeemen, notified Stillman and C. P. Cottrell that the employees wanted a definite answer as to whether the respondent would enter into a signed agreement with the Union. Cottrell said that the respondent's former reasons for not signing a contract "still went." 9 Owens informed the respondent that the employees were going on strike at 2 p. m. that day unless the respondent would agree that any agreement which might be reached by the parties would be incorporated in a written contract. Stillman testified at the hearing that the Union was at this time insisting upon the signing of the original contract proposed by the Union. Although Stillman attempted during the June 6 conference to make the issue so appear, we find, as did the Trial Examiner, that Owens informed Stillman that the issue was simply whether the respondent would embody in a signed contract the terms of any agreement which might be reached. The testimony of Owens to this effect is corroborated by Hargraves, and the whole record leaves no doubt about the respond- ent's position on the question of signing a contract. The failure of the respondent to offer written or definite counter-proposals generally to the Union's proposals, and the respondent's delays in presenting its position concerning individual points raised in the negotiations, when added to the respondent's persistent refusal to enter into a written agreement, lead clearly to the conclusion that the respondent did not bargain collectively in good faith with the Union on and after February 22, 1940. Within a few minutes after Owens and Hargraves left the confer- ence on June 6, the employees of the respondent went out on strike. We find, as did the Trial Examiner, that the immediate cause of the strike was the respondent's failure to agree that any agreement reached by the parties be reduced to a written contract; and that subsidiary causes of the strike were the dissatisfaction caused by the 9 Representatives of the respondent had made it clear throughout the negotiations with the Union that the respondent would not enter into a written contract with the Union (1) because this would be contrary to a long-standing policy of the respondent , and (2) because of the lack of responsibility of labor organizations. C. B. CiOTT'R'ELL & SONS COMPANY 467 respondent's interference with its employees' rights of self- organiza- tion, above described, and the respondent's refusal to bargain in good faith on and after February 22, 1940. On June 14, during the strike, representatives of the respondent, the Union, and the Pattern Makers League of North, America,'° met again before the Connecticut State Board of Mediation and Arbi- tration. The transcript of these proceedings, which was introduced into evidence, reveals that the respondent persisted in its refusal to enter into any written contract with the Union. Anderson, repre- senting the Union, finally accepted as a basis for settling the strike a proposal that the respondent and the Union negotiate further, and, that, after an agreement on substantive working conditions was reached, the respondent would post on its bulletin boards a written statement embodying the agreed-upon terms and signed by an officer of, the 'respondent. As a result of this settlement the strike was, called off, and shortly thereafter the employees began to return to work. The respondent and the Union reached an agreement on various conditions of employment, and on July 10, 1940, the re- spondent posted on its bulletin board a written "statement of prac- tices and policies" to the employees, signed by the respondent's presi- dent. The Union was recognized as the exclusive bargaining repre- sentative for all the employees heretofore found to be within the appropriate unit for purposes of collective bargaining. The Union, which had called the strike because of the respondent's unfair labor practices, settled the strike upon a condition which still reflected the respondent's unfair labor practice in refusing to sign a written contract. The negotiations after the settlement did not remedy this unfair labor practice, for the respondent's statement of policy embodying the terms agreed upon in the negotiations, is not a written contract and does not establish a contractual relationship between the respondent and the Union as the exclusive bargaining representative of the employees." Moreover, from the beginning the circumstances surrounding the conferences between the parties were tinged with the respondent's interference with the self-organization of its employees and the respondent's bad faith in raising the ques- tion of a signed contract as an obstacle to collective bargaining.. We find, therefore, as did the Trial Examiner, that the respondent, on February 22, 1940, and at all times thereafter, refused to bargain collectively with the Union as the representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of 10 This organization , with jurisdiction over the pattern makers in the respondent's plant, was interested in the dispute because the pattern makers had gone out on sympathetic strike with the rest of, the employees. 11 N. L. R. B. v. Calumet Steel Division of Borg-Warner Corporation (C. C. A. 7), decided June 12, 1941. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, and other conditions of employment, and that the respondent thereby interfered with, restrained, and coerced its-em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. B. The_ cancelation of group life insurance of the strikers Since October 1919 the respondent has covered its employees at the Pawcatuck plant by a group life insurance policy with The Travelers Insurance Company, Hartford, Connecticut, hereinafter called the Insurance Company. The respondent's contract with the Insurance Company provides that the initial amount of the insurance shall be $500, and that the insurance shall become effective after an employee has been working 3 months. Coverage is then increased annually until it reaches the maximum of $1,000. The group policy further provides that an employee's insurance shall end when he shall leave the service of the respondent or be dismissed. Under the policy, the respondent may elect to keep the insurance in force in three types , of cases: (1) temporary lay-off, (2) leave of absence, and (3) temporary disability. - In 1937 the respondent elected, and the Insurance Company agreed, to terminate the insurance coverage in cases of employees temporarily laid off or on leave of absence, but upon the return of such employees to reinstate the insurance at' the amounts in force theretofore. When an employee is reported to the Insurance Company for reinstatement he does not hive to wait 3 months for coverage, and the amount of coverage is the same as he had before. One June 12, 1940, 6 days after the beginning of the strike referred to above, the respondent made its monthly report to the Insurance Company. It returned 120 "yellow cards," representing the striking employees, for cancelation of insurance. "Yellow cards" are re- turned to the Insurance Company when persons are no longer work- ing for the respondent. No explanation was made to the Insurance Company as to why these 120 persons were not working. Three other persons, for whom there was no work as a result of the strike but who were not among the strikers, were reported to the Insurance Company as laid off. These three persons returned to work between June 19 and 24, and on June 27 the respondent reported them to the Insurance Company for reinstatement of their coverage. As the striking employees returned to work they were covered for insurance at $500 after 3months, as new employees. None of the employees was informed that the Insurance Company had been notified to cancel his insurance and, as far as the record shows, none of them was aware of the cancelation until after the strike ended. C. B. COTTR'ELL & SONS COMPANY 469 In answering the contention of the Board'at the hearing that the respondent discriminated against the striking employees with regard to the -reinstatement of their group life insurance privileges, the respondent contended that it had no alternative, that it complied specifically with the terms of its contract with the Insurance Com- pany. The Trial Examiner concluded that the respondent, discrim- inated between strikers and laid-off employees, but the respondent argues that any such difference in treatment resulted solely from its non-discriminatory action in requesting the maximum coverage under the terms of the insurance policy then in force. The three persons who were laid off were so reported; the strikers were not laid off and therefore were not so reported. ' The group insurance policy, as amended in 1937, provides: (1) that coverage terminates when an employee shall "leave the service" of the respondent or "be dismissed therefrom," and (2) that coverage :hall be reinstated in the case of an employee who has been laid off or granted leave of absence, upon his return to work within 6 months of such lay-off or leave of absence. Thus, the respondent's position is that its power to reinstate insurance coverage after a break in actual employment was limited to "laid-off" and "leave of absence" employees and did not include strikers. We do not agree with the contentions of the respondent. Since the strike of June 6, 1940, was caused by the respondent's unfair labor practices, the strikers were entitled, upon application, to full rein- statment without prejudice to their seniority and other rights and privileges. The group life insurance policy covering the respondent's employees for a period of more than 20 years was an established con- dition of employment in which the employees had a substantial inter- est and was "a term or condition of employment" within the meaning of Section 8 (3) of the Act. 12 The actual insurance coverage enjoyed by each of the strikers prior to the interruption of his employment by the strike is the proper measure of "condition of employment" to the restoration of which he became entitled upon return to work.13 The respondent (1) failed to restore such beneficial insurance coverage; (2) failed to attempt to restore it, although testimony of a representa- " Section 8 of the Act provides that it shall be an unfair labor practice for an employer- • s s s t • • (3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organi- zation . . . Is The view most favorable to the respondent is that the beneficial "covdition of em- ployment" involved arose from, and must be limited to, the terms of the insurance policy itself and was, therefore, subject to defeasance upon striking. This position seems to us artificial. 451269-42-vol. 34-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of the Insurance Company 14 tends to indicate. that such an at- tempt would have been successful; and (3) made no showing at the hearing as to whether, aside from the existing policy, substantially equivalent coverage could have been secured. - The respondent's ac- tion in thus reducing the benefits previously enjoyed by the strikers amounts to a cut in indirect wages 15 and is explicable only by a desire on the respondent's part to penalize its employees for going on strike. Both by treating strikers differently from laid-off employees and by reducing the total wages of strikers, the respondent's action tended to discourage employee concerted activities.16 We find that the respondent, by depriving those employees who went on strike of the full rights and privileges which they had obtained prior to the strike under the group life insurance policy, discriminated with regard to the hire and tenure of their employ- ment and the terms and conditions of their employment, thereby penalizing them for their concerted activity; discouraged member- ship in and activity on behalf of the Union; and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES-.UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have • a close, intimate, and - substantial 14 Adams, an assistant secretary of the Insurance Company's Group Insurance Depart- ment, testified that it was the policy of the Insurance Company to cooperate in group insurance matters with assured companies. He testified that the election made in 1937 by the respondent was outside the terms of the policy, as is readily apparent . He testified that such requests were usually granted by the Insurance Company where no adverse selection was made within the group and no unusual underwriting hazards were presented. Adams testified further that if the respondent had requested the Insurance' Company to reinstate the previously existing insurance rights for the whole group of strikers , assuming no adverse selection within the group, the Insurance Company would probably have granted the request. He also testified that if the respondent had reported the strikers as laid-off employees for the purposes of insurance, the Insurance Company would probably have agreed to It. The respondent made a motion to strike Adams' testimony at the hearing , which the Trial Examiner denied in his Intermediate Report. We do not view the testimony of Adams as binding the Insurance Company, but his testimony does indicate what the general policies of the Insurance Company are. That his testimony is accurate is evidenced by the extra-contractual arrangement \Aorked out in 1937 with regard to reinstatement of policies. ]a Stillman, the respondent's treasurer and representative most active in negotiations with the Union, testified that the respondent made no effort to find out what the Insurance Company would do with regard to the policies of the strikers , and that even if at the time of the hearing it was satisfactory to the Insurance Company to reinstate the policies of the strikers , the respondent still would not have made the request. His reason was that that would amount to a revision of the contract . When asked what difference that would make, he testified that the respondent would have to pay higher insurance premiums. It is true that the premiums would have been higher , but no higher than they would have been had there been no unfair labor practice strike. 15Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1159, 10 N. L. it. B. 33: • C. B. OOTTRRET L & ',SONS COMPANY 471 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 . Since we have -found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act, and which will, as nearly as possible, restore the condition that existed prior to the commission of the unfair labor practices. - We have found that the respondent has, by the acts and conduct set forth above, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. We shall, therefore, order that the respondent cease and desist from such practices. We have found that the respondent on February, 22, 1940, and at all times thereafter, refused to bargain collectively with the Union as the representative of the employees in the appropriate unit. We shall, therefore, order the respondent, upon request, to. bargain col- lectively with the Union as the exclusive representative of the em- ployees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that, if an understanding is reached on any such matters, the respondent shall embody such understanding, if requested to do•so by the Union, in a signed agreement. We have found that the unfair labor practices committed by the respondent resulted in the strike on June-6, 1940, and that thereafter the respondent discriminated with regard to the terms and condi tions of employment of those employees who went on strike between June 6 and July 10, 1940, by depriving those employees of the rights and privileges which had accrued to them under the group life in- surance policy. As a remedy for the unfair labor practices which caused the strike of June 6 as well as for the respondent's discrimina- tion against the strikers'17 we shall- order that the respondent procure for such striking employees the restoration of their insurance rights and privileges as they existed immediately prior to the strike or pro- cure substantially equivalent insurance rights for them if exact restoration is impossible. In the event that any of' the striking employees who returned to work have died or die before the re- spondent restores their former or substantially equivalent insurance rights, we shall order that the respondent pay to the beneficiary of 17 Matter of MoEaig-Hatch, Inc., footnote 16, supra. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any such person a sum equal to the difference between the amount of insurance, if any, payable to such beneficiary, and the amount of in- surance that would have been payable had the respondent not deprived such deceased employee of his rights and privileges of insurance.'8 The respondent contends that. the Board is without power to direct an order against it in regard to the policies of life insurance. We have previously exercised such power, and our decision has been sus- tained by the United States Circuit Court of Appeals for the Tenth Circuit.19 In that case the Board held that the employer had dis- criminated in regard to the hire and tenure of employment of one Moore, and that an incident of his discrimination was the loss of his insurance rights under a group insurance policy covering employees of the respondent. The Board ordered the employer to procure for Moore "the restoration of insurance rights, which he lost," by reason of the discrimination. In sustaining the Board's order in this re- spect, Bratton, J., stated for the Circuit Court : Complaint is also made that the Board ordered restoration of the insurance rights which Moore lost upon termination of his em- ployment. It is provided in section 10 (c), supra, that the Board may order one engaging in an unfair labor practice to take such affirmative action as will effectuate the policies of the Act. The provision is broad though not unlimited in scope and gives the Board warrant to order any relief which is reasonably adapted to redress [the] wrong. National Labor Relations Board v. Penn- sylvania Greyhound Lines, 303 U. S. 261; National Labor Rela- tions Board v. Mackay Radio and Telegraph Co., 304 U. S. 333. It cannot be said that the requirement to restore the insurance rights which the employee lost upon the termination of ' his em- ployment was not reasonably adapted to the situation.20 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: The Board has heretofore held that the administrator of a deceased person shall be made whole for loss of pay incurred by the deceased person because of the employer's discrimination. Matter of Eagle-Picher Mining and Smelting Company, et al., 16 N. L. R. B. 727, 873. Here, the group life insurance specified the beneficiary so that it seems appropriate that such beneficiary be made whole One of the striking employees , Visgard, had a $700 group life insurance policy at the time of the strike. After the strike was terminated he was treated as a new employee, for insurance purposes , but before the 3-month preliminary period had elapsed , and hence before any insurance was reissued to him, he died ; and when Visgard 's mother, the beneficiary under the group insurance policy Visgard held before the strike , asked the respondent if she had any benefits coming to her , she was told that she did not In this case, therefore, the action or inaction of the respondent resulted in a $700 loss to Visgard's beneficiary, which the respondent must pay to her. >s Continental Oil Company v. N. L. R. B., 113 F. ( 2d) 473 (C. C. A 10), enforcing as modified 12 N. L R. B. 789, remanded with respect to other issues, 313 U. S. 212 V 113 F. (2d), at 485, C. B. COTMELL & SONS CoMFANNY 473 CONCLUSIONS OF LAW 1. International Association of Machinists, Lodge No. 627, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The employees of the respondent at Pawcatuck plant in the pro- duction and maintenance departments and in the stockroom, exclud- ing pattern makers, molders, core-makers, and supervisory employees, at all times material herein, constituted and now constitute a unit ap- propriate for the purposes of collective bargaining, within the mean- ing of Section 9 (b) of the Act. 3. International Association of Machinists, Lodge 627, affiliated with the American Federation of Labor, on February 19, 1940, was, and at all times thereafter, has been the exclusive representative of all the employees in such unit for the purpose of collective bargaining within the meaning of Section 9 (a) of -the Act. 4. By refusing, on February 22, 1940, and at all times thereafter, to bargain collectively with International Association of Machinists, Lodge 627, affiliated with the American Federation of Labor, as the exclusive representative of the employees in the appropriate unit, the respondent has engaged in, and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment and the terms and conditions of employment of those employ- ees who went on strike between June 6 and July 10, 1940, thereby discouraging membership in International Association of Machinists, Lodge 627, affiliated with the American Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor-Relations Act, the National Labor Relations Board hereby orders that the respondent, C. B. Cottrell & Sons Company, Pawcatuck, Connecticut, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Associa- tion of Machinists, Lodge 627, affiliated with the American Feder- 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ation of Labor, as the exclusive representative of the employees of the respondent at the Pawcatuck plant in the production and mainte- nance departments and in the stockroom, excluding pattern makers, molders, coremakers, and supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Discouraging membership in International Association of Machinists, Lodge 627, affiliated with the American Federation of Labor, by in any manner discriminating in regard to the hire and tenure of employment or any term or condition of employment of its employees; (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, and to engage in concerted activities for the - purpose of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Asso- ciation of Machinists, Lodge 627, affiliated with the American Feder- ation of Labor, as the exclusive representative of its employees at the Pawcatuck plant in the production and maintenance depart- ments and in the stockroom, excluding pattern makers, molders, core- makers, and' supervisory 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 matter, embody such under- standing, if requested to do so by said union, in a signed agreement; (b) Procure for those employees who engaged in a strike and who, as hereinbefore found, were thereafter deprived of their former rights and privileges of insurance, restoration of all such rights and priv- ileges of insurance or substantially equivalent insurance rights and privileges; and, in the event of the death of any of said striking employees, pay to the beneficiary of such person a sum equal to the difference between the amount of insurance, if any, payable to such beneficiary and the amount of insurance that would have been pay- able had the respondent not deprived such deceased employee of his rights and privileges of insurance; (c) Post immediately in conspicuous places throughout the Paw- catuck 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 paragraph 1 (a),, (b), C. B. COTTR'ELL & SONS COMPANY 475 and (c) above; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) ; and (3) that the re- spondent's employees are free to become or remain members of International Association of Machinists, Lodge No. 627, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of his membership or activity in behalf of said labor organization; (d) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order, what'steps the respondent has takeen to comply herewith.' MR.' EDWIN S. SMITH took no part ' in the consideration of thq above Decision and Order.