Climate Control Corp.

CI.IMA IF C()NIROI C()RPORAION 751 Climate Control Corporation and Local Union No. 41, Sheet Metal Workers International Associ- ation, AFI,-CIO. Cases 25-CA 10021 and 25- CA- 10021-2 August 27, 1980 DECISION AND ORDER By MlENIHIRS JENKINS, PENEI I.O, ANI) TRUESI)AI. E On March 6, 1980, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions and a supporting 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, and conclusions of the Administrative Law 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, Climate Control Corporation, Muncie, Indiana, 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 2(a) and reletter the subsequent paragraphs accordingly: "(a) Upon their unconditional applications to return to work, offer immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and any other rights and privileges previously enjoyed, to all em- ployees who went on strike on July 18, 1978, or thereafter, dismissing, if necessary, any person hired by Respondent on or after that date. "(b) Make the strikers whole for any loss of earnings they may suffer as a result of Respond- ent's refusal, if any, to reinstate them in a timely i' he General Counlsel excepts to the Adminisratle I.a\ Judge, fail ure to include in hi, recommended remedy and Order appropriate pro - sions for the reinsalement o the unfair lahor practice stIrker, and make whole relief for the strikers in he manner hich the Board custrmlaril 5 provides in cases of his kind See. g . larl Mefatl (porpa.n 23t) NLRB 14(X) 11I979). Vw'porl ,Nt' Shiphuilding and Dr D (-ipatrv. 236h NERD 1617 1978) WVe find mrern ll mle (enerll (Counsels excepti on, and shall modifs the Adiniltral eC ! ian Judge's recommenided O)rder accordingls 251 NLRB No. 102 fashion, by paying to each of them a sum of money equal to that which each would have earned as wages during the period commencing 5 days after the date on which each unconditionally offers to return to work to the date of Respondent's offer of reinstatement, less any net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in : W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). If Respondent herein has al- ready rejected, or hereafter rejects, unduly delays, or ignores any unconditional offer to return to work, or attaches unlawful conditions to its offer of reinstatement, the 5-day period serves no useful purpose and backpay will commence as of the un- conditional offer to return to work." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX Norilci TO EMPI.OIF.!iS POSIT :) BY ORI)I:R OF TIHE NA IIONAI. LABOR RLFLA IIONS 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. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT post any bulletin which threatens our employees with the loss of exist- ing benefits if they support the Union. VE WII.. NOT threaten our employees with loss of vacation benefits because of the Union. WE WILL NOT threaten to extend negotia- tion or engage in appeals in order to defeat or delay bargaining with the Union. WF Will NOT deny full vacation benefits or otherwise discriminate against our employees because of their union activities, or because they instigate a charge with the National 752 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[) Labor Relations Board or provide evidence to the Board in support of a charge against us. WE WILL NOT cause or prolong ahy strikes by our employees by committing unfair labor practices. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon their unconditional applica- tions to return to work, offer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and any other rights and privileges previously enjoyed, to all employees who went on strike on July 18, 1978, or thereafter, dismissing, if necessary, any person hired by us on or after that date. WEL wll.l make the strikers whole for any loss of earnings they may suffer as a result of our refusal, if any, to reinstate them within 5 days of their unconditional applications to return to work, plus interest. CLIMATE CONTROl CORPORATION DECISION STATIEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge: This case arose upon a consolidated complaint, dated August 16, 1978. Local Union No. 41, Sheet Metal Workers International Association, AFL-CIO, filed charges in Cases 25-CA-10021 and 25-CA-10021-2 on July 12 and 20, 1978, respectively. The consolidated complaint was amended on November 20, and December 4 and 14, 1978. In substance, the complaint charged the Respondent, Climate Control Corporation, with inde- pendent violations of Section 8(a)( ) of the National Labor Relations Act, as amended, certain discriminatory conduct in violation of Section 8(a)(3) and (4) of the Act, and with causing or prolonging a strike by the employ- ees. Respondent filed an answer on August 22, 1978, as subsequently amended, in which it admitted all jurisdic- tional allegations in the complaint and denied that it had committed any unfair labor practices. A hearing was held on December 18 and 19, 1978, in Muncie, Indiana. Thereafter on February 22, 1979, the General Counsel and the Charging Party filed briefs. Upon the entire record in this case, including the hear- ing transcript, the exhibits, and the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT The Respondent, Climate Control Corporation, is an Indiana corporation engaged in the installation, service, and sale of heating, ventilating, and air-conditioning sys- tems in Muncie, Indiana. Respondent's president and general manager was John McNary. He was also one of six stockholders. Ray Davis, another stockholder, was the foreman of the installation group and John D. Nixon, also a stockholder, was the service manager. They were admitted supervisors within the meaning of the Act. The Union, Local Union No. 41, Sheet Metal Workers International Association, AFL-CIO-admittedly a labor organization within the meaning of the Act-commenced an organizational drive among Respondent's employees on May 4, 1978, at a meeting in the Holiday Inn in Muncie, Indiana. Representing the Union was Leonard R. Compton, a business representative of Local 41. In at- tendance were employees Richard Jones, Richard Col- lier, Carl VanMatre, Robert Clevenger, and Greg Col- lins. At that meeting, the employees discussed "organiz- ing, coming into the Union, what could the Union do for them and in what way could they assist the Union"; some of them also signed union cards, including Greg Collins. On May 12, 1978, the Union filed a petition for representation election' and unfair labor practice charges against the Respondent alleging unlawful threats and in- terrogation2 (G.C. Exh. 10). On June 29, 1978, the Com- pany executed a settlement agreement, involving the unfair labor charges, which the General Counsel accept- ed (G.C Exh. 11). On the same day, a representation election was held pursuant to a Stipulation for Consent Election in which the Union was elected as the bargain- ing representative for the employees (G.C. Exh. 3). By letter of July 6, 1978, the Union requested the Company to begin negotiations for a collective-bargaining agree- ment (G.C. Exh. 22). On July 7, 1978, Respondent filed objections to the election, charging the Union with making "illegal promises and guarantees of benefits," which interfered with the employees' choice and de- stroyed the required laboratory conditions (G.C. Exh. 21). The Regional Director for Region 25 issued his Report on Objections to Conduct Affecting Results of Election on July 14, 1978, in which he recommended that Respondent's objections be overruled and that the Union be certified (G.C. Exh. 2). Respondent appealed to the Board which, on August 25, 1978, adopted the Regional Director's findings and recommendations and certified Local 41 as the exclusive bargaining representa- tive for all employees in the following unit (G.C. Exh. 3): All production and maintenance employees of the Employer at its 1330 West Second Street, Muncie, Indiana establishment, including all servicemen all installers and all helpers. But Excluding all office clerical employees, all technical employees, and professional employees, and guards and supervisors as defined in the Act. In the meantime, the Employer had failed to reply to the Union's request of July 6, 1978, to commence negoti- ations. On July 12, 1978, the Union filed the first set of charges in the instant case against the Company. At a ' See Case 25 -RC-h61)I See Case 25 CA 9X75. CIMATE CONTROL CORPORATION 753 July 17 meeting which the Union had arranged by send- ing letters to the employees, a strike vote was taken. A unanimous decision for an immediate strike was made, and the employees began to picket Respondent's prem- ises on July 18, 1978. Two days later, July 20, 1978, the Union filed the other set of charges in the instant case against Respondent. By letter of July 26, 1978, the Union made its second request to begin negotiations for a collective-bargaining agreement (G.C. Exh. 25). Respondent replied by letter of July 28, 1978, in which it informed the Union that they would not bargain unless and until the Board certi- fied the results of the election and further that it would hire strike replacements if the strike continued beyond the end of the month (G.C. Exh. 26). On August 16, 1978, the complaint issued herein which, as subsequently amended, raises the following issues: 1. Whether Respondent had posted a notice which threatened the employees with loss of existing benefits if the Union were voted in. 2. Whether Respondent threatened its employee Greg Collins with a denial of vacation benefits unless he re- frained from union activities and whether Respondent discriminatorily reduced Collins' vacation benefits. 3. Whether Respondent threatened to extend negotia- tions and engaged in appeals in order to delay or defeat certification of the Union. 4. Whether Respondent threatened its employees with a reduction in wages if the Union were voted in. 5. Whether the strike was caused or delayed by Re- spondent's unfair labor practices. The notice: Although the record does not contain the document in question, the record contains the testimony of four employees, all of whom explained that sometime in June, prior to the election, a poster was affixed to the door of the refrigerator in the shop. This poster was de- scribed by the four employees, Clevenger, Collins, Baker, and Garrett, as being green with black lettering and stating in substance that "if you vote for the union you could-or would-lose the benefits that you are now enjoying." Respondent's witness McNary did not recall whether a green notice had been posted on the refrigerator door, and he denied having posted any threats. He testified that the campaign literature which had been posted had been discarded shortly after the election.3 It is well settled that an employer's threat of economic reprisals in the event of unionization constitutes an un- lawful interference. In evaluating campaign propaganda the Board has tolerated a certain amount of "puffing." It has recognized the right of a free and vigorous campaign with all normal tools of electioneering, on one hand, and the right of employees to an untrammeled choice, on the other. Statements by an employer must be considered in their total context, and if the effect of the message is to create an atmosphere of fear by portraying the selection of a union as an economic hazard, then such statements constitute violations of Section 8(a)(1) of the Act. a Because McNa.ry "it, unahle to recall the cointEct o any dotcuricrils or to he specific ahlt the do unlctl in quesliron. I credit the coIslistr it and unequis cal Ic.illlO ofi the f ulur cnplo ccs Significant in the present consideration of the poster is the impression which it left upon the employees. While there were numerous posters and bulletins, all of which were part of Respondent's campaign effort, this notice stood out in the minds of the employees. Not only did they recall its message, but they also recalled the size, color, printing, and location of the document. Whether the precise language of the notice regarding the loss of existing benefits used the word "could" or "would" is of little consequence, because it is clear from the testimony that the general import was a clearly perceived threat of loss of benefits. Accordingly, I find that Respondent vio- lated Section 8(a)(I) of the Act. The vacation benefits: Shortly before the election, em- ployee Greg Collins had a conversation with his fore- man, Ray Davis. Collins asked Davis whether he could take his vacation during the Fourth of July holiday. Davis, without hesitation, said no. He told Collins that his workweek averaged only about 32 hours a week over the entire year. Davis further stated that no one in the department would get a vacation until the deal with the Union was over with and he knew where he stood.4 Later in the day, Davis returned and told Collins that he had talked to John McNary and that they had decided to give him reduced vacation benefits based upon a 32-hour workweek. Subsequently, in mid-August, following the filing of the charges herein, the Company paid Collins the additional pay, so as to compensate him for a full week's vacation. In its testimony, Respondent conceded that its general policy provided for a full week's vacation after I year of service with the Company, and that no other employee had ever been deprived of a full week's vacation on the basis that he had averaged less than a full workweek during the year. This is also supported by the General Counsel's computation of the average workweek of other employees. This chart (G.C. br.) shows that other em- ployees had averaged less than 40 hours per week at var- ious time periods. The General Counsel submits that Collins was singled out for this disparate treatment because of his leading role as a union activist. The records show that Collins was not the most prominent, but one of the leading union supporters. He was one of five employees who had attended the May 4, 1978, meeting with Leonard Comp- ton, the Union's business agent. He had signed a union card during that meeting. Collins and fellow employee Robert Clevenger were interrogated the following day by John Davis, the foreman, whether they had attended the union meeting. Collins admitted that he had. On the same day, Clevenger and Collins requested to meet with John McNary. During the meeting about 5 p.m. in McNary's office, they complained about their pay and requested an increase in wages. McNary told them to take this matter up with Davis, their foreman. He also told them that he did not want the Union telling him how to run his business, and that they might come in I day and find the doors locked because he and Davis This factual umnrmars is hascl upon the clear an; d con(,vcling ttirno- ii) of Co llins [), s is' Istimonlly. allhhough saguc in some respects, con- firs Ihill a cI\ crsrliln o thain ltlillure had occurred 754 I)t: CISI()NS OF NA II()NAI IAB()R REI.AIOI()NS H()ARI) could retire at any time. Respondent's conduct in this regard was the subject of a charge filed by the Union on May 12, 1978. in Case 25-CA-9875.5 Both Collins and Clevenger had provided affidavits to the Board in sup- port of these charges. The record does not show whether Respondent had actual knowledge of the execution of these affidavits by two employees. However, the inference is obvious that Respondent knew that the charges were based upon Col- lins' and Clevenger's cooperation with the Union and the Board. The charges themselves, i.e., "threatening loss of current benefits and plant closure" and "interrogating employees concerning their own and others union sym- pathies and activities," clearly suggest to the Employer that the incidents on May 5, 1978, involving Clevenger and Collins, had given rise to the charges. In addition, Respondent knew the content of the notice which it had agreed to post pursuant to the settlement of those charges on June 30, 1978. The language in the notice i.e., "interrogate our employees regarding their union membership, activities or sympathies" and "threaten our employees with plant closure." must have given Re- spondent the knowledge that its employees Collins and Clevenger had given evidence to the Board in support of the Board's action. Considering the issues of whether Respondent unlaw- fully threatened to and in fact did deny Collins his vaca- tion benefits in violation of Section 8(a)(1), (3), and (4) of the Act, I find that Collins stood out among his fellow employees as one of the leading union supporters, who had attended union meetings, signed a union card, acted in concert with Clevenger in requesting more pay. and who was instrumental in obtaining Board action against the Employer. Respondent's threats to deny vacation pay were union related. Respondent's denial of vacation benefits constituted disparate treatment of an employee and was clearly based upon Collins' union activities and his actions in instigating the filing of a charge and in giving evidence to the Board. The threat to deny vaca- tion benefits because of the Union constitutes an unlaw- ful interference with an employee's right protected by Section 7 of the Act. Respondent thereby violated Sec- tion 8(a)(1) of the Act. The partial denial of vacation benefits because of the employee's union activities and his involvement in providing evidence to the Board con- stitutes a violation of Section 8(a)(1), (3), and (4) of the Act. The fact that Respondent ultimately provided Col- lins with full vacation benefits does not erase Respond- ent's initial denial of it, although it must be considered in drafting an appropriate remedy. Statements to extend negotiations and to engage in ap- peals: Respondent's management indicated at various times to its employees that it would use dilatory tactics to extend negotiations. For example, on June 28, 1978, 1 day before the election, McNary drove by the home of Howard A. Garrett, an employee who had let it be known that he was against the Union. McNary urged Garrett to be sure to vote at the union meeting, and re- marked that it did not make any difference whether they " As alread) slated, this case as suhbequenlltly settled betvren Ihe par- ties Neverthele s. the maliler is relevalit here because it relate, t te al- leged 8(a)( 4 ) conduct got the Union in or not, that he was going to tie it up in arbitration for a year or so.f O()n June 29. 1978, after the election results had been announced, McNary reacted by making a statement to the effect that this would also be a protracted or a year- long affair as it was at Lehman's or Couvert's. Although McNarv testified that his remark was not intended as a threat, the employees who were familiar with the lengthy negotiations and drawn out processes at the other firms clearly perceived McNary's remark as a threat. Subsequently, on July 5. 1978, Respondent filed objec- tions to the conduct of the election,7 in which it chal- lenged a statement in one union pamphlet as constituting "illegal promises and guarantees of benefits" (G.C. Exhs. 20, 21). On July 14, 1978, the Regional Director issued his report recommending to the Board that the objec- tions be overruled (G.C. Exh. 2). 1y letter of July 21, 1978, Respondent notified its employees that it was pre- paring to file exceptions to the Regional Director's report (G.C. Exh. 16). The Board in a Decision dated August 25, 1978, adopted the Regional Director's find- ings and recommendations (G.C. Exh. 3). In the meantime, on July 18. 1978, when the employ- ces had commenced their strike, a discussion ensued be- tween McNary and Compton. McNary wanted to know why the employees had decided to strike. Compton pointed to the picket sign which stated: "Protesting Unfair Labor Practices." McNary denied the commission of any unfair labor practices and, after the argument became more heated, Compton informed McNary that the Regional Director had overturned Respondent's complaint with respect to the conduct of the election. At that point, McNary, within the earshot of several em- ployees, stated that it did not make any difference anyway because he would appeal this to Washington and it could take another 5 months. Considering McNary's comments made on June 28 and 29, and on July 18, 1978, in the context of the surround- ing circumstances, it is clear that they constituted threats which were coercive in nature, and which conveyed to the employees a sense of futility in selecting the Union as their bargaining representative. Accordingly, I find Re- spondent violated Section 8(a)( 1) of the Act. .Alleged threats y Davis: Foreman Davis had a conver- sation about the Union with Howard Garrett, an employ- ee, sometime during the 2 weeks preceding the election. In that conversation Davis uizzed him about the Union and told him that it was his fault that the Union was coming in because he was making more money than Bob Clevenger or Greg Collins. He also stated that he knew Dick Collier to be the ringleader and that the only ones to benefit from the Union would be Collins and Cle- venger but that Collier would have to take a cut in pay. On July 25, 1978, Davis had another conversation about the Union with employees Garrett and Baker, 'i McNary admilted to his iil ait (ial rrtt' s home, hut he deinied ha ing arie te a1t stateme nt I hac i rcldit d the tcstim. t\ of (;arreit in his regard, railhr han McNary's denial thereof, beeausle of olher testim', l which simila;rly reflected Respridetlnls position See (Case 25 CA h910.( CI.[MAI. C()NTROL() CORP()RATIO()N 7 5 5 while they were on the picket line. Both Garrett and Baker, who gave substantially the same accounts of that conversation, remembered that Davis initially comment- ed about the unfair labor practice charges, stating that they could take the charges and "stick them in the cracks of the building." He also stated that "you never know what we are going to do next." When the discus- sion became louder, Garrett told Davis that, when the Union "got done with him and the unfair labor prac- tices," he would know what to do with the unfair labor practices and he would not be able to afford coffee. To this Davis retorted: "Well, when we got through with you, you guys won't be able to afford nothing, get noth- ing here in Muncie."' The General Counsel charges that these remarks, as well as Davis' comments about Collier's pay cut, consti- tute threats in violation of Section 8(a)(1) of the Act. Considering these remarks in the context of the entire conversations, I cannot agree. When Davis indicated to Garrett that Collier would have to take a cut in pay, he also added that Clevenger and Collins would probably benefit from the Union. According to the record, not only Collier but also Clevenger and Collins were per- ceived to be among the top union activists. The element of coercion is not present when a supervisor readily con- cedes that the Union may be beneficial to some employ- ees and predicts that it may not be beneficial to others. Davis' remark may well have been a realistic appraisal that, in agreement with the complaints of Clevenger and Collins, their pay was indeed too low in comparison with that of other employees, and that Collier's wages were comparatively higher. Moreover, the remark was made to an employee whose sympathies were known to be already antiunion. Similarly, Davis' remark to Garrett and Baker, to the effect that there would not be anything left in Muncie for them once the Company was finished with them, was no more than a retort to a similar remark made first by Garrett, namely, that once the Union and the unfair labor practices got through with him, he would not even be able to afford coffee. It would be inherently unfair to consider Davis' reply out of context and regard it as an unlawful threat and let employees make identical re- marks with impunity. In any case, I am convinced that, in the context of the entire conversation, the two em- ployees who were not regarded as union activists per- ceived Davis' remark not so much as a coercive state- ment relating to their union activity but as a quick retort to their verbal attack. Accordingly, I find no violation in Davis' conduct. The strike: The General Counsel and the Charging Party strongly argue that the strike which began on July 18, 1978, was a unfair labor practice strike. Respondent seems to argue that it was for recognitional purposes only. The law is clear: If a strike is precipitated in part by the employer's unfair labor practices, such a strike will be considered as an unfair labor practice strike. As already summarized above, Respondent has committed " Davis in his cstimony denied making hee statements as sell a the remark to Garrett about a pa) cut Beciause I found DaIlnis' testinlonl vague and ofte ucertalin about his irso n recollection, I hac full! c red- ited he estlmonn, of Garret alld Baker violations of Section 8(a)( ), (3). and (4) of the Act. The record further shows that the employees were motivated by Respondent's unlawful conduct in voting for a strike during the meeting on July 17. 1978. Of common con- cern was their fear that McNary would not seriously ne- gotiate or bargain with the Union. but that he would prolong and avoid the representative bargaining proce- dure with the Union. For example, Clevenger. who first suggested the idea of a strike, testified that everybody was in an uproar over different things, including the unfair labor practices, and that McNary would just "try and drag it out as long as he could and wasn't even going to try to make any attempt to settle anything." Baker similarly testified, stating that they could never get McNary to talk; every time a meeting was scheduled he would cancel it and what "topped it off was him men- tionring at the election that it was going to be a long drawnout affair like Lehman's." Garrett explained that everybody at that meeting seemed hostile about the statements made by either McNary or Davis about vaca- tion pay or "how he was going to tie it up" and refuse to recognize the Union. Other witnesses, notably Richard Jones and Greg Collins, attributed the strike to working conditions. Collins was unhappy about the vacation pay and the unsafe working conditions, while Jones men- tioned changes in hours and working conditions. Comp- ton's testimony clearly substantiated that the strike was generally prompted by the unfair labor practices of the Employer, although he conceded that economic reasons also played a part. Respondent's suggestion that the object of the strike was to gain recognition is correct only insofar as the employees were concerned about Re- spondent's repeated threats to avoid and prolong serious negotiations with the Union which had already been se- lected by the employees as their bargaining agent. Significant in this connection is that one picket sign used by the employees clearly states: "ON STRIKE! AGAINST CLIMATE CONTROL CORP. PROTEST- ING UNFAIR LABOR PRACTICES." (Resp. Exh. I.) In conclusion, I have no difficulty in concluding that Re- spondent caused and prolonged the strike because of its unfair labor practices. CONCLUSIONS 01F LAW 1. Respondent Climate Control Corporation is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local 41, Sheet Metal Workers International Asso- ciation. AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By posting a notice threatening that employees could lose existing benefits if the Union were voted in, Respondent violated Section 8(a)(1) of the Act. 4. By threatening employees with denial of vacation benefits because of the Union, Respondent violated Sec- tion (a)(l) of the Act. 5. By threatening to extend negotiations and engage in appeals in order to defeat or delay bargaining with the Union, Respondent violated Section 8(a)(1) of the Act. 6. By denying full vacation benefits to an employee be- cause of his union activities and because he instigated, 756 DECISIONS OF NATIONAL LABOR RELATIONS B()ARD and provided evidence in support of, a charge against his employer, Respondent violated Section 8(a)(l), (3), and (4) of the Act. 7. The strike which began on July 18, 1978. was caused and prolonged in whole and in part by Respond- ent's unfair labor practices. 8. All other allegations have not been substantiated. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. A broad prohibition is .justified because of Respondent's failure to abide fully by the provision of its prior posted notice in Case 25-CA- 9875. Although I have found that Respondent violated Sec- tion 8(a)(1), (3), and (4) of the Act by denying one of its employees full vacation benefits, the record shows that Respondent fully compensated the employee shortly after the filing of the charge in this case. Accordingly, a "make whole" provision is not necessary. However, since I have found that the strike which commenced on July 18, 1978, was an unfair labor prac- tice strike, the recommended Order will further require Respondent, 5 days following the strikers' unconditional application to return to work, to offer each said striker who has not yet been reemployed immediate and full re- instatement to his former job, or to a substantially equiv- alent position, without prejudice to the seniority and other rights and privileges previously enjoyed by each said striker, and discharge, if necessary, any replacement in order to provide work for said striker. Upon the above findings of facts, conclusions of law, the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER9 The Respondent, Climate Control Corporation, Muncie, Indiana, its officers, agents, successors, and as- signs, shall: I In the esent no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 10248 of the Rules and Regulations, be adopted by the Board and 1. Cease and desist from: (a) Posting any bulletins which threaten employees with the loss of existing benefits if they supported the Union. (b) Threatening employees with denial of vacation benefits because of the Union. (c) Threatening to extend negotiations or engage in ap- peals in order to defeat or delay bargaining with the Union. (d) Denying full vacation benefits or otherwise dis- criminating against its employees because of their union activities, or because they instigate a charge or provide evidence to the Board in support of a charge against Re- spondent. (e) Causing or prolonging strikes by committing unfair labor practices. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection, and to refrain from any or all such activities. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Reinstate the unfair labor practice strikers as pro- vided above in the section entitled "The Remedy." (b) Post at its place of business in Muncie, Indiana, copies of the attached notice marked "Appendix. " "' Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes IO In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted b5 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