Hydro-Dredge Accessory Co.

National Labor Relations Board - Board Decisions

Nov 27, 1974

215 N.L.R.B. 138 (N.L.R.B. 1974)

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hydro-Dredge Accessory Co. and District No. 9, In-
ternational Association of Machinists and Aero-
space Workers, AFL-CIO. Case 14-CA-7693
November 27, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On April 30,1974, Administrative Law Judge Irving
M. Herman issued the attached Decision in this
proceeding.' Thereafter, the Respondent filed excep-
tions 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 brief and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge and to adopt
his recommended Order, except as modified herein.
The Administrative Law Judge found that a series of
acts by the Respondent constituted unfair labor prac-
tices under Section 8(a)(1), (2), and (3) of the Act.
Those acts were the November 193 grant of raises to
two employees who had participated in that day's'walk-
out, the November 19 and 20 discharge of six em-
ployees' who had participated in the walkout, the
November 27 interrogation of two of the most pro-
union employees about their attempts to bring in the
Union, the November 27 offer to help employees
form an independent employees ' association , and the
November 27 threat to move the roll-building opera-
tion out of town if the Union came in, all of which
acts were found independently to violate Section
8(a)(); the November 28 discharge of all employees,
I Hydro-Dredge Employee Association appeared at the hearing as a Party
in Interest
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
3 All dates mentioned herein refer to 1973 unless specified otherwise
4 In his "Conclusions of Law," the Administrative Law Judge also desig-
nated the November 19 discharge of John Becker as an unfair labor practice
We assume that this designation represented an inadvertent error, and we
hereby correct that error, in light of the Administrative Law Judge 's earlier
finding , in sec l,a,( 1) of his "Analysis ," that Becker's discharge "was the
result of misconduct on his part unrelated to the walkout " That finding was
not excepted to
In his "Conclusions of Law," the Administrative Law Judge omitted to
designate the November 20 discharge of Ray Ripplinger as an unfair labor
practice We assume that this omission represented an inadvertent error,
and we hereby correct that error, in light of the Administrative Law Judge's
earlier finding , in sec l,a,(1) of his "Analysis ," that Ripplinger was "unlaw-
fully discharged on the 20th "
which was found to violate Section 8(a)(3); and the
November 29 or 30 drafting of a contract with the
employees' association, the November 29 or 30 desig-
nation of employee signatories for a contract in final
form with the association, and the November 29 or
30 signing of such a contract, all of which were
found to violate Section 8(a)(2) of the Act.
Given this series of extensive and serious unfair prac-
tices, the Administrative Law Judge concluded that the
Respondent's failure to grant the Union's November 27
request for recognition constituted an unlawful refusal
to bargain under Section 8(a)(5), and, on the basis of his
finding that a fair election could not be held, recom-
mended issuance of a Gissel-type bargaining order. The
Administrative Law Judge further concluded that,
since the Respondent had a duty to bargain with the
Union on and after November 27, its subsequent recog-
nition of the employees' association-as well as its uni-
lateral decisions to stop hiring part-time employees, to
impose a formal disciplinary system on its employees,
and to stop paying money toward the purchase of its
employees' safety shoes-constituted additional viola-
tions of Section 8(a)(5).
We agree that Respondent's conduct, outlined
above, constituted unfair labor practices under Section
8(a)(1), (2), and (3) of the Acts We also agree that
issuance of a bargaining order is warranted to remedy
those unfair labor practices, which we find to be egre-
gious in nature, including as they did, inter alia, coer-
cive interrogation, a threat to remove work from the
plant, illegal raises, unlawful assistance to an employee
committee,' and the discriminatory dismissal of the
whole work force. However, in keeping with our ra-
tionale in Steel-Fab, Inc., 212 NLRB 363 (1974), we
deem it unnecessary to base our bargaining order on
any violation of Section 8(a)(5).' The real purpose of
our bargaining order is to remedy 8(a)(1), (2), and (3)
violations so serious that the invocation of other avail-
able remedies will nevertheless not permit a fair elec-
tion to be held, thus requiring us to enter a bargain-
ing order as the only available means of implement-
ing employee free choice and effectuating the pur-
poses of the Act. We are of the view that the animus
of the Respondent was so forcefully conveyed to the
employees by its acts and conduct here that only a
3 The November 19 statement to each employee , that if he was unhappy
with the situation he could quit, was not alleged in the complaint as an unfair
labor practice The Administrative Law Judge's finding that the November
29 or 30 conduct concerning the employees ' association contract did not
amount to 8(a)(2) domination was not excepted to
6 Our adoption of the recommended Order insofar as it requires that
Respondent cease giving effect to the contract with the Association is not
to be construed as requiring that Respondent rescind any benefits granted
to the employees pursuant thereto
7 Member Fanning, in accordance with his dissent in Steel-Fab, supra,
would affirm the findings, conclusions , and recommended Order of the
Administrative Law Judge with respect to the 8 (a)(5) violations . He joins
his colleagues in all other aspects of this case.
215 NLRB No. 5
HYDRO-DREDGE ACCESSORY CO 139
bargaining order can effectively restore the status
quo which would have prevailed if the employees
had not been so egregiously coerced. We therefore
enter a bargaining order as a remedy, but, as in
Steel-Fab, supra, find it unnecessary to premise
that order upon a finding of an 8(a)(5) violation.
Since, accordingly, we do not find that the Respond-
ent had a duty to bargain with the Union as of Novem-
ber 27, we cannot find that its subsequent recognition
of the employees' association constituted a violation of
Section 8(a)(5); but we can and do find that Respon-
dent's recognition of the employees' association con-
stituted a violation of Section 8(a)(2).
Our declination to make an 8(a)(5) finding also re-
quires us to decline to find that the Respondent's subse-
quent unilateral decisions to stop hiring part-time em-
ployees, to impose a formal disciplinary system on its
employees, and to stop paying money toward the pur-
chase of its employees' safety shoes constituted viola-
tions of Section 8(a)(5). We would not be precluded
from considering whether such acts were designed to
and did improperly interfere with employee rights in
violation of Section 8(a)(1), had the General Counsel so
alleged.
Although the hearing did elicit some testimony con-
cerning the timing, impact, and motivation of the uni-
lateral decisions, that testimony was elicited only in the
context of 8(a)(5) and derivative 8(a)(1) allegations,
and therefore could well differ from the testimony
which might have been elicited in the conceptually dif-
ferent context of independent 8(a)(1) allegations. Since
the General Counsel chose not to proceed on this the-
ory, for us now to find that the unilateral decisions
constituted independent 8(a)(1) violations would be to
condemn, as unlawful, conduct which the Respondent
at the hearing was led to believe only violated the Act
because it was in derogation of the Union's alleged
bargaining rights as the alleged exclusive collective-
bargaining representative of the employees. This we
decline to do on the ground that it would constitute a
denial of due process to the Respondent. A remand of
these 8(a)(1) issues might normally, therefore, be ap-
propriate, but in view of the full and complete remedy
we are ordering herein, including a bargaining order,
we have concluded that such a remand would be un-
necessary and improvident in this proceeding.'
The final issue before us is Respondent's contention
that its November 28 invitation to the discharged em-
8 We do not mean to suggest, however, that the Respondent's claimed
policy of not hiring part-time employees should be deemed any defense to
its duty to reinstate part-time employees Dennis Nagel and Michael Yarber
Inasmuch as part-time employees Michael Neff and Michael Sanders, who
did not participate in the November 19 walkout, were reemployed pursuant
to their request, at dates subsequent to Respondent's alleged change in
policy, Respondent cannot be heard to assert such a policy as a defense to
the reinstatement of employees Nagel and Yarber, who did participate in the
said walkout
ployees to reapply for work tolled its backpay liability
to those employees who failed to reapply. Respondent
argues that, notwithstanding the Board's consistently
applied principle that a reinstatement offer must be
both unconditional9 and an offer of full
reinstatement, 10 backpay should be tolled here be-
cause the employees did not avail themselves of work
which might have been available had they seen fit to
respond to the invitation to reapply for work, despite
the failure of the "invitation" to comply with the
Board's standards for valid reinstatement offers. We
reject this contention.
Respondent had wrongfully terminated its em-
ployees. Its legal duty, in order to remedy this wrong,
was to reinstate them to their former positions. For us
to hold that some lesser invitation gave rise to a duty
on the part of the employees to respond favorably to it
would jeopardize the effectiveness of our remedies and
invite deliberate violation of the law. Employers are not
free to discharge employees for union activity and then
"invite" them to come back, hat in hand, and seek
favorable consideration as possible employees if the
employer chooses to reemploy them. Even though
some employees may respond to such an invitation and
be hired, as some did and were here, no employee has
any legal obligation to respond to such an invitation,
and none should be required thus to subject themselves
to the employer's discretionary judgment as to their
continued fitness for continued employment. All dis-
criminatees have an absolute legal right to restoration
to their former status and pay" -a right which we
will not permit to be diluted by the imposition of condi-
tions such as filing an application for employment or
submitting to other screening processes designed to ap-
ply to new job applicants. For us to toll backpay when
such an impliedly conditional offer or invitation is
made would be to permit offending law violators to
exculpate themselves from financial liability by impos-
ing unjustified conditions upon the victims of unlawful
discrimination-a policy which clearly would not ef-
fectuate the policies which we are called upon to ad-
minister.
We therefore adopt that part of the Administrative
Law Judge's recommended Order awarding backpay,
in appropriate amounts to be determined in the compli-
9 Controlled Alloy, Inc and Harlin Preci sion Sheet Metal Fabrication Co,
Inc., 208 NLRB 882 (1974).
10 Rushton & Mercier Woodworking Co, Inc, and Rand & Co, Inc, 203
NLRB 123 (1973)
11 It was to avoid the risk of consenting to return to inferior jobs that the
employees who failed to respond to the November 28 invitation made their
decision, on the advice of the Union' s business representative, not to re-
spond Of the seven full-time employees who failed to respond to the
November 28 invitation, six returned to the plant immediately after learning
from Anthony Kreher on January 22, 1974, that they could get complete
reinstatement
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance stage of this proceeding , to employees discharged
by the Respondent on November 28.
AMENDED CONCLUSIONS OF LAW
Based on our above findings, we adopt the Adminis-
trative Law Judge's Conclusions of Law as our own,
with the following exceptions:
1. In paragraph 4, delete "John Becker" and substi-
tute in lieu thereof "Ray Ripplinger."
2. Delete paragraph 7 in its entirety, and renumber
paragraphs 8 and 9 accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified herein, and
hereby orders that the Respondent, Hydro-Dredge
Accessory Co., Smithton, Illinois , its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as modified below:
1. Delete paragraphs 1(h) and (i) of the Administra-
tive Law Judge's recommended Order, and redesignate
paragraph 1(j) accordingly.
2. Substitute the following for paragraph 2(c) of the
Administrative Law "Judge's recommended Order:
"(c) Upon request, bargain collectively and in good
faith with District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO (here-
inafter called the Union), as the exclusive collective-
bargaining representative of the employees in a unit of
all full-time and regular part-time production and
maintenance employees and truck drivers at the Re-
spondent's Smithton, Illinois, plant, excluding office
clerical employees, professional employees, guards,
foremen, and supervisors as defined in the Act, respect-
ing rates of pay, wages, hours, or other terms and con-
ditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
3. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
MEMBER FANNING, concurring and dissenting in part:
I agree with the majority that Respondent violated
Section 8(a)(1), (2), and (3) of the Act by engaging in
coercive interrogation, threats , illegal raises , unlawful
assistance to an employee committee, and the whole-
sale dismissal of its entire work force to thwart union
organization.
I dissent from the majority's reversal of the Adminis-
trative Law Judge's finding that the Respondent fur-
ther violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the majority
representatives of its employees. N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969), cited in affir-
mance of that principle in N. L.. R.B. v. Savair Man ufac-
turing Co., 414 U.S. 270, 280-281 (1973). I dissent from
the majority's refusal to base its bargaining order on all
of Respondent's unfair labor practices, including its
original and subsequent violations of Section 8(a)(5)
and (1) of the Act. I dissent from the majority's refusal
to find that Respondent violated these sections of the
Act by unilaterally instituting a formal disciplinary sys-
tem, discontinuance of payments for safety shoes, and
modification of its policy of employing part-timers. I
dissent from the majority's conclusion that such con-
duct, alleged in the complaint as conduct in violation
of Section 8(a)(1) as well as Section 8(a)(5) and litigated
on that basis, is not unlawful because the General
Counsel did not allege that it was independently viola-
tive of Section 8(a)(1). I dissent from the majority's
reversal of the Administrative Law Judge's finding that
Respondent's conduct with respect to the Association
was also a breach of its statutory obligation to bargain
exclusively with the Union selected by a majority of its
employees.
Although the majority's reasoning is not entirely
clear, I have tried to synthesize its logic as follows:
Step 1. A bargaining order is necessary to
remedy Respondent's violations of Section 8(a)(1),
(2), and (3).
Step 2. It is unnecessary to base that order on
any violation by Respondent of Section 8(a)(5).
Step 3. Accordingly, Respondent had no duty to
bargain with the Union on November 27, when
the latter admittedly achieved majority status.
Step 4. Therefore, Respondent's unlawful
recognition of the Association was not in deroga-
tion of its bargaining obligation to the Union.
Step 5. Therefore, the majority finds itself pre-
cluded by the above reasoning from finding that
subsequent unilateral decisions otherwise violative
of Section 8(a)(5) were, in law, violative of that
section.
The above rationale tracks the majority's decision in
Steel-Fab, 212 NLRB 363 (1974), from which Member
Jenkins and I dissented. As in that case, the majority
insists against all logic that it is not "necessary" to base
a bargaining order on Respondent's violation of Section
8(a)(5) or, indeed, to find that such a violation oc-
curred. Having abdicated its statutory authority to find
a violation of this section of the Act, the majority then
solemnly asserts that it is precluded from finding or
remedying subsequent unilateral conduct of the Re-
spondent, which the Administrative Law Judge found
to be violative of Section 8(a)(1) as well as Section
HYDRO-DREDGE ACCESSORY CO.
8(a)(5). From this the majority derives the additional
incongruous reasoning:
Step 6. No independent violation of Section
8(a)(1) can be found with respect to unlawful con-
duct occurring after November 27 because the
General Counsel coupled such conduct with Re-
spondent's violation of Section 8(a)(5).
Step 7. It would be "unfair" to Respondent to
find such unilateral conduct unlawful because the
General Counsel proceeded on the wrong theory,
leading Respondent to believe that the illegality of
its conduct was only in relation to its obligation to
bargain , which the majority refuses to find.
Step 8. In these circumstahces it would be a
denial of "due process" to find such conduct viola-
tive of Section 8(a)(1).
Step 9. Finally, although the matter might be
cured by a remand, that procedure is, again, "un-
necessary" and even "improvident."
It would seem to me fairly obvious from the above
that the only "unfairness" in this case is the refusal of
the majority to recognize what the Supreme Court has
clearly stated in the Gissel and Savair cases, supra, that
an employer does violate Section 8(a)(5) when he
refuses to recognize the majority representative of his
employees and, instead, engages in serious unfair labor
practices making a fair election improbable. That viola-
tion clearly warrants the remedy of a bargaining order.
It is no answer to say that such an order is not "neces-
sary" because the Board may be issuing a prospective
bargaining order to remedy violations other than Sec-
tion 8(a)(5). The facts in this case illustrate the fallacy
of such reasoning. Clearly, Respondent' s unilateral
conduct after November 27 was violative of Section
8(a)(5) and should be remedied on that ground. Even
assuming the validity of the majority's Steel-Fab posi-
tion, Respondent's retaliation against its employees for
their union activity by discontinuing hiring part-timers,
instituting a formal disciplinary system, and discon-
tinuing its practice of helping to pay for employees'
safety shoes was obviously violative of Section 8(a)(1).
Contrary to the majority, a respondent is not excused
from its legal responsibility or deprived of due process
merely because the General Counsel relies on one sec-
tion of the Act rather than another. The Respondent
was on notice at all times with respect to these unfair
labor practices. The General Counsel adduced substan-
tial and unrefuted evidence with respect to the timing,
the impact, and the Respondent's motivation in the
above unilateral actions. Such evidence warrants a find-
ing that Respondent violated Section 8(a)(1) apart from
its violation of Section 8(a)(5).
The majority, however, concludes that these viola-
tions must be dismissed because its decision provides a
141
"full and complete remedy . . . including a bargaining
order." Obviously, the majority's remedy does not re-
quire the Respondent to undo the effects of its unilat-
eral and discriminatory conduct. Nor does the majori-
ty's bargaining order require Respondent to bargain
about the imposition of such onerous conditions of
employment . If the majority is taking the position that
its remedy is otherwise so complete and its order to
bargain so effective that the above violations of Section
8(a)(1) need not be found or remedied , I must disagree.
In my opinion, the above serious violations of the Act,
alleged as such by the General Counsel, warrant full
and complete consideration by the Board. This is not
a case where some 8(a)(l) conduct is merely cumulative
of other 8(a)(1) or (3) violations to be remedied by the
Board's general order. These unfair labor practices
should be clearly labeled as such and the Board should
provide a remedy geared specifically to such violations.
Any other course, in my view, does not effectuate the
policies of the Act or inhibit this and other respondents
from engaging in conduct in violation of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer full reinstatement to their former
jobs or, if their jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their
seniority or other rights and privileges, to all our
employees discharged on November 28, 1973, and
not yet fully reinstated, and make all our em-
ployees whole for any loss of pay suffered by rea-
son of their discharge.
WE WILL bargain collectively and in good faith
with District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO
(herein called IAM), as the exclusive representa-
tive of our employees in the bargaining unit de-
scribed below, and, if an understanding is reached,
sign a contract containing such understanding.
The bargaining unit is:
All full time and regular part time production
and maintenance employees and truck drivers
employed at Respondent's Smithton, Illinois,
facility, excluding all office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
WE WILL withdraw and withhold all recognition
from Hydro-Dredge Employees Association as
collective-bargaining representative of any of our
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees until we have fully complied with the
National Labor Relations Board 's Order requiring
us to bargain with IAM and unless and until the
Association has been certified as such representa-
tive by the Board.
WE WILL NOT coercively question any of our em-
ployees about their union activities , views , or sym-
pathies.
WE WILL NOT threaten any of our employees with
removal of work to avoid unionization.
WE WILL NOT encourage any of our employees to
form a labor organization.
WE WILL NOT grant wage increases to any of our
employees as a reward for refraining from con-
certed activity protected by the National Labor
Relations Act.
WE WILL NOT discharge or otherwise discriminate
against any of our employees for engaging in union
or other protected concerted activity.
WE WILL NOT interfere with the administration of
Hydro-Dredge Employee Association or any
other labor organization , or contribute financial or
other support to it.
WE WILL NOT give effect to any contract with Hy-
dro-Dredge Employee Association.
WE WILL NOT in any other manner interfere with
the rights of our employees to engage in organiza-
tional activity or collective bargaining or to refrain
from such activities , except to the extent that such
rights may be lawfully affected by an agreement
requiring membership in a labor organization as a
condition of employment , as authorized in Section
8(a)(3) of the Act.
HYDRO-DREDGE ACCESSORY CO
refusing to reinstate its employees; and refusing to bargain
with the Charging Union.
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of the General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I RESPONDENTS BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is an Illinois corporation with a place of business
at Smithton, Illinois, where it is engaged in the manufacture
and sale of rubber products; that during calendar 1973, a
representative period, Respondent manufactured and
shipped from its Smithton plant directly to customers outside
Illinois products valued in excess of $50,000; and that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
The evidence discloses that the Association is an organiza-
tion or employee representation committee in which em-
ployees participate and which exists for the purpose, at least
in part, of dealing with Respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or
conditions of work, and hence is a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts'
1. Background
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This case
was tried before me on March 7 and 8, 1974, at St. Louis,
Missouri. The charge was filed by District No. 9, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO (herein called the Union), on November 29, 1973,
and amended December 10, 1973, and January 7, 1974,'
with service effected upon Respondent by registered mail on
or about the same respective dates. The primary issues are
whether Respondent violated Section 8(a)(1), (2), (3), and (5)
of the National Labor Relations Act, as amended (29 U.S.C.,
Sec. 151 et seq.), herein called the Act, by interrogating its
employees about their union activity, threatening them and
granting them benefits in connection therewith; dominating,
assisting, or contributing to the support of a labor organiza-
tion called Hydro-Dredge Employee Association (herein
called the Association);' discriminatorily discharging and
I All references below to November relate to 1973, refere *1 -s to January
are to 1974
Respondent , whose principal office is in Chicago , has op-
erated its plant in Smithton since 1959. Smithton 's popula-
tion numbers about 1 ,000. The first manager of the plant
was one Arnold Brueggeman who occupied that position
from the outset until November 14, 1973. " [D]uring the
course of 1973," Respondent's President Brown testified,
the Company was "receiving excessive rejections" because
of the poor quality of its product due to defective workman-
ship . This culminated in October in a complaint from a
major customer , Youngstown Sheet and Tube, which
Brown ' s personal inspection found justified . He and his
partner , Carr, therefore decided to replace Brueggeman,
2 At the hearing, without objection, the caption of the complaint was
amended to add the Association as a party in interest
3 On March 26, 1974, Respondent moved for correction of the transcript
of testimony in certain respects Inasmuch as the motion is soundly based
and is unopposed , it is hereby granted Other errors also appear in the
transcript , only some of which warrant formal correction to disclose the true
meaning of the relevant material [Errors in the transcript have been noted
and corrected ]
4 Except as specifically indicated , the following recital consists either of
a synthesis of basically consistent testimony or of otherwise uncontroverted
testimony which I have credited
HYDRO-DREDGE ACCESSORY CO.
which they did on November 14 with the appointment
of Richard Sexton , the assistant manager.
That same afternoon a notice was posted on the bulletin
board informing the employees of the change. Simultaneously
posted were a notice banning smoking within the plant as well
as other safety rules designed to achieve compliance with an
inspection report which had been issued several weeks earlier
by the State of Illinois.
2. The employees' grievances and Manager Sexton's initial
response
When John Becker reported for work on the 14th or 15th
he observed the no-smoking signs and decided to defy the
Company Instead of starting to work, and although he had
given up smoking some time previously, he asked his brother
for a cigarette in the presence of a group of employees and
lit it, saying he "just [didn't] agree" with the rule. Foreman
Gabel approached him and ordered him to put the cigarette
out. Becker refused and blew smoke in Gabel's face. Manager
Sexton then came over and said that this was now a plant rule
and that everyone would have to live by it. Becker said he
would put the cigarette out when he was finished with it,
which he ultimately did.
According to Becker, it was the imposition of the new rules
that precipitated action on the part of the employees. As he
testified,
Q. So you had a number of complaints then the follow-
ing Saturday that caused you to not go to work but to
gather as a group and write up your grievances and so
on, is that right?
A. Yes, we did.
Q. Were these grievances matters that had arisen over
the period of your employment or were they just recent
things that had just happened in the last day or two?
A. There were some that had been building up, but
mostly I would say within the last year or within that last
year they were mostly talked about then.
Q. But, were any of the things that you listed as griev-
ances on Saturday morning things which had just hap-
pened in the two or three days before that?
A. Well, the one thing was we figured that since the
company was putting all of these safety restrictions on
us, that we would want the shop to be a little more safe,
too, and, you know, like say the trolly wheels in that, at
one time , one of them fell down, and we figured, well,
if they're going to pull hard like this all the time, one of
them's going to come down again sooner or later and
that was one of the grievances on account of safety they
brought all of these other safety things in and we wanted
to bring up a couple of our grievances.
Q. So you're saying to usthat as long as the company
placed no restrictions on the employees requiring them
to observe safety rules you were willing to tolerate the
conditions around you, but that as soon as the company
began to enforce some safety rules on employees, that,
at that point you said to the company, we want you to
take care of these things.
A. Well, that was mostly what it was.
143
At the end of the night shift on Friday evening , November
16, eight or nine of the employees went to a bar where they
discussed their working conditions and agreed they should
organize the next morning.' The following morning the
night shift punched in as usual (there were 10 of them), and
talked about their grievances and how to better their condi-
tions, including the possibility of a strike.6 They then in-
formed their supervisor, Benedict, and the day-shift foreman,
Gabel, who was also there, that they were not going to work.
At first the supervisors were incredulous, but when the men
assured them they were serious, Gabel said, according to
John Becker, "You're all going to get fired."' Benedict
asked if they wanted Sexton to come down and talk with
them, and they indicated they would. Benedict thereupon
telephoned Sexton who arrived promptly. By the time of his
arrival the employees had found cardboard and sticks and
had made up signs calling for improved wages, ventilation,
heating, and safety and other working conditions. Meanwhile
one of the night-shift employees, Gary Neff, telephoned Ray
Ripplinger and Matthew Yarber to come down to represent
the day shift, and they arrived immediately after Sexton.
Sexton asked what the problem was, and John Becker
handed him the list of grievances. Sexton addressed himself
to each, indicating what steps had already been taken to
remedy some, what was contemplated as to others, and which
were not susceptible to resolution.' He promised to try to
undertake appropriate correction of the items complained of
within 30 days, and the men went to work at or about 9
o'clock.9
3. Shift in the Company's position and the ensuing
walkout
Following the above events, Sexton talked with Respon-
dent's Chicago office, and on Monday, November 19, he
called all the employees to his office individually, and told
them that their grievances would take longer to resolve than
he had thought10 and, according to his own testimony,
That what had happened Saturday I didn't feel was the
proper way of going about the situation, that things were
being done, however, a person who was not happy with
the situation had the alternative to quit anytime they felt
they were unhappy."
5 The night shift works Mondays through Thursdays from 3 to I 1 p in ,
Fridays from 3 to 10 p in , and Saturdays from 6 30 a.m to 3 p in , the day
shift works 6 30 a in to 3 p in Mondays through Fridays and does not work
Saturdays
6 It is normal for the employees to sit around for about 15 minutes until
the heat builds up
7 Becker added that the employees just laughed at this.
8 As to wages, he asked each employee to indicate the amount of raise
desired Every employee gave the same answer, but, according to Gary Neff,
it was 50 cents, while Sexton testified it was 25 cents, and Michael Neff
testified he had requested 25 cents
9 The employees were paid for the full day
10 Michael Neff responded by asking why the Company had reneged on
its promise of Saturday, to which Sexton admittedly replied that "labor is
labor and management is management and that there are certain things that
management must control and things such as wages and hours of overtime
that we should have control as to what these salaries shall be for these
things "
II Sexton rephrased this on cross to "Any employee has the alternative
if they are not happy with the situation, they may punch the clock on the
wall and go home."
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of the day-shift employees walked out on the 19th but
they did decide to walk out if they did not receive what they
had been promised. Sexton asked Ripplinger whether, in the
event of a walkout, he would join it, and Ripplinger replied
he would be the first one out the door. Ripplinger was still
finishing up his work when the night shift reported, and as
John Becker passed him on his way to Sexton's office, Becker
told him he would see him later because "we're walking out.,,
Becker announced his leaving to Sexton when Sexton gave
him the alternative. His brother Thomas followed him when
he learned what John had done, as did most of the night shift
without even listening to Sexton's attempt to explain the
Company's position. Those who did not work that night, in
addition to the Beckers, included Robert Lang, Dennis Na-
gel, Michael Yarber and Jack Bayers. Gary and Michael
Neff, both of whom said they would stay, were shortly
thereafter called in individually and given 20-cent raises."
4. The evening of November 19 culminating in violence
Between 7:30 and 8:30 that evening employee Ripplinger
of the day shift came to the plant to ask Sexton why he had
fired the Beckers and Robert Lang, and Sexton replied that
they had not been fired but had walked out. Ripplinger
proposed that Sexton meet with all the employees at the
American Legion hall to discuss the entire situation, but
Sexton declined because "a tavern" was not a good place to
talk. However, Sexton suggested that he meet with Ripplin-
ger and Becker as spokesmen for the day and night shifts,
respectively, and they agreed so to meet the next morning.
Ripplinger also raised the subject of a 15-cent wage increase
for himself, which Sexton testified he had refused on prior
occasions but which Ripplinger testified he had been pro-
mised 2 months before. At Ripplinger's request Sexton tele-
phoned President Brown in Chicago and turned the receiver
over to Ripplinger. Ripplinger testified as follows concerning
this conversation:
I asked him when I would receive that 15 cent raise
that I was promised, and he told me that it would be
down on this next paycheck that was coming. Then he
asked me about the walkout and told me that we
wouldn't accomplish anything with a walkout, we don't
have no union, nothing backing us. I told him we real-
ized that but we were going to try to get one in. He said
that I was just a kid and would never amount to anything
and told me to turn in my resignation. So, I wrote on a
piece of paper "I quit" and signed my name to it, and
handed it to Mr. Sexton. Mr. Sexton wouldn't accept it.
Then I asked Mr. Brown if he really wanted me to quit
and he said, "If you don't change your ways, I do," and
I said, "O.K., I'll change" and I handed the phone to
Mr. Sexton, and I said, "Goodbye," and that was it.
Q. Was anything else said before you left?
12 The only night-shift employees remaining were Dennis Dotson and
Michael Sanders Sexton was unable to recall whether Dotson also received
a raise that night
A I told Mr. Sexton , I said , "Are you going to accept
my resignation?" and he said , "No,' and I said , "O.K.,
I'll be back at work tomorrow."
According to Sexton, Ripplinger wrote the "I quit" note after
he had finished talking with Brown and while Sexton was
talking with Brown, and after he hung up he told Ripplinger
that he would not accept the resignation that night and that
they should discuss the matter in the morning.
Ripplinger testified also that Sexton agreed to close the
plant down for the rest of the night and told Ripplinger to
inform the day-shift employees that there would be no work
the following day (the 20th) because the plant was closed.
Sexton's testimony mentioned neither an agreement with
Ripplinger about closing the plant nor his asking Ripplinger
to notify the employees that the plant would be closed the
next day He testified merely that he decided to close the
plant that night because "there was basically nothing much
getting done," that the only employees left were the Neffs,
even Dotson having punched out."
Sexton told the Neffs the plant was closing for the remain-
der of the evening, they left, and while he was closing up, he
testified, Betty Sanders and James Daab,'° who had heard
of the closing, came by to learn what was happening; and
Tom Yoch, who was apparently due at work then, also ap-
peared. While Sexton was explaining the situation to them,
Ripplinger returned to the plant, found the door locked, and
said, "I want to come in and talk to my employees," so Sexton
asked them if they wanted to talk to Ripplinger then or wait
till morning; they said they would wait, and Sexton told
Ripplinger he would not admit him and they would meet the
next morning at 10 o'clock. Ripplinger's version of this was
that when he left the plant earlier he reported the closing to
the employees at the American Legion15 and had returned
when, after trying to make a similar report to Betty Sanders
at her home, he had been told she was at the plant; that when
he got there he saw her, Sexton, Assistant Manager Ewers,
Foreman Gabel and "Ray" " in the mill room; and that,
when he sought admittance "so [he] could tell Betty," Sexton
"told [him] to forget about everything we had talked about."
Ripplinger thereupon reported these events to the em-
ployees at the Legion who, upset by the news , went en masse
to the plant in about six cars." It was about 10 p.m John
Becker loudly demanded entry. Sexton became frightened
and called the police. Becker, angry at his inability to get in,
punched out four or five windows, cutting his hand badly
enough to require hospital treatment . The men dispersed at
or about 11 to 11:30 on the advice of the police that they
should get some representation and change their methods.
13 It does not appear what happened to Michael Sanders
14 Erroneously spelled Dobb in the complaint , transcript, and briefs
15 About five blocks from the plant
16 The only Ray identified in the record other than Ripplinger himself was
a unit employee named Ray Rodriquez Gary Neff also testified to seeing
the same individuals when he arrived a little later
17 They included Dotson, Wagner, Ripplinger, Bayers, Nagel, Mike and
Matt Yarber, Gary and Mike Neff, Bob and Fred Lang, and John and Tom
Becker.
HYDRO-DREDGE ACCESSORY CO. 145
5. Mediation efforts and the meeting of November 20
At or about 8:30 the next morning (Tuesday, November
20) only a few of the employees reported for work. About 10
employees met at the Village Hall" where the Chief of Po-
lice again criticized their earlier behavior and Ripplinger re-
ported about inquiries he had made of the Better Business
Bureau and Legal Aid Society as to their future course of
action. During the meeting one Killibrew, a Mobil Oil execu-
tive living in Smithton, was brought in and advised them to
contact a nearby attorney; a committee consisting of John
Becker, Ripplinger (suggested at that meeting as the re-
presentatives of the night and day shifts, respectively), and
employee Kreher was appointed to accompany Killibrew to
consult with the attorney that afternoon.19 Meanwhile,
however, Killibrew went to the plant, informed Sexton that
the employees wanted to return to work, and asked whether
the Company would meet with the employees that night.
Sexton consulted Brown and they agreed to attend. The em-
ployees' families as well as town officials, including the
mayor, also attended the meeting that night at the Village
Hall.
Killibrew presided pursuant to the employees' wishes. Sex-
ton announced that John Becker had been fired,20, that Rip-
plinger had turned in a written resignation, and that Nagel,
Thomas Becker, Robert Lang, and Michael Yarber, who had
left on the 19th, were no longer considered employed but that
all others were invited back. Killibrew suggested that each
shift elect a representative to present grievances to
Sexton,21 adding, according to Sexton's testimony, "that we
try to form some organization similar to that that the other
roller plant in town had."22 Company owners Brown and
Carr also addressed the meeting, noting benefits the em-
ployees were already receiving and promising improvements
with the erection of a new building. John Becker apologized
for his conduct, and his father requested an opportunity to
discuss John's situation with management after the meeting.
Killibrew, summarizing management's remarks, announced
that any employee could return to discuss reemployment.
This was specifically agreed to by management for John
Becker in their conversation with his father.
6. Reinstatement on November 21
Following the meeting Ripplinger went to the plant and
requested reinstatement and his request was granted on a
18 Also referred to as the fire house or station
19 It does not appear that any such meeting was held But a number of the
employees met at the fire house that afternoon and discussed both forming
their own independent union and joining an outside union They also sug-
gested a slate of officers in the event they organized their own union This
slate, approved at a later meeting of all employees , consisted of Ripphnger
as vice president, G Neff, secretary, M Neff, treasurer, Kreher and John
Becker, shop stewards, and (oddly enough) Killibrew as president
20 Sexton assigned as reasons Becker's violence at the plant the previous
night, his poor defiance of the no-smoking rule, and his even earlier "attack"
on Elizabeth Sanders, the sole evidence of which was Becker's admission
that he had pinched her arm, patted her "butt," and "kind of nudged up
against her" until she told him to cease and desist
21 According to Sexton , who admitted advancing the same suggestion
earlier, Killibrew was the only one to make the suggestion that evening.
Gary Neff testified that Sexton mentioned it that evening too, with Kill,-
brew merely summarizing Sexton 's remarks.
22 The record does not reflect what the latter was like
probationary basis . He was told, in response to his question,
that his wage rate would include the 15-cent raise he had
sought. The next morning, John Becker and the others who
had left on the 19th were all told they could return to work
on probation, which they did. The- employees continued to
work through November 27.
7. The signing of authorization cards and the request for
recognition ; Sexton's immediate reaction
Meanwhile, on Saturday, November 24, 16 of the em-
ployees met with Roy Hawkins, a business representative of
the Union, pursuant to arrangements made in the late after-
noon of November 20, and signed authorization cards. On
November 26, the Union wrote to the Company requesting
recognition, and the Company received the request on
November 27.
About 8 a.m. on the 27th, Sexton called Ripplinger into his
office and asked "about this union letter he received." Rip-
plinger said that more than a third of the employees had
signed cards and that a petition would be filed for an election.
Sexton asked why they tried to get a union in and Ripplinger
replied it was their right. Sexton asked if he thought the
Union would do any good and Ripplinger replied affirma-
tively. Sexton said he did not see how the employees could be
happy with the Union; that he had worked with unions before
and did not like the way they worked.
About 4:30 or 5 p.m. on the 27th Sexton called John
Becker into his office and, according to Becker, the following
ensued:
A. As soon as I came in , Richard asked me, "Why are
you doing this?" and I said to him, "What?" He said,
"Why bring the union in this?" and I said, "Well, these
guys, employees wanted to get organized." And then
Gifford mentioned something about that in some ways
unions are good , in some ways unions are bad, and I
pretty well, you know, agreed with him on that account,
and then Richard said, "You guys really got us in a
mess" and he said if, he mentioned something about
profit sharing system and informed me of about, where-
abouts I had in the profit sharing thing and he said that
would be all discontinued if the union came in, and I
said, I understood that, and then he said if we wanted
to go union we could just go back up to Chicago and get
in a union and we would build rubber rolls up there and
continue building hoses down at the plant in Smithton
and then he asked me, "Why did you pick out the machi-
nist union?", and, I said, "Well, that's the only union
that would consider us." And he said "Well, you guys
aren't considered qualified machinists." And I said,
"Well, I know that." And he said that Brown couldn't
afford to pay machinists wages and I didn't say nothing
right away after that and then he asked me, "Well, what
do you guys really want?" And I said , "Well, we mostly
want a contract between the workers and the manage-
ment." And he said "Well, what kind of agreement do
you want?" And I said, I brought up the other rubber
roll plant in Smithton. I brought up the thing that they
had their own union with a new shop, their own shop
and he said "Well, do you want something like that?"
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And I said, "Well, I would be willing to think about it."
And then he said, "Well, if you guys want to get
together, we got our lawyer, and we would pay for your
legal advice, and you could pick out whomever you
want , and we would get together and try to work this
out." And I said , "Well, I would think about it." And
then he said, later on he said, "Well, I'll keep in touch
with Mr. Killibrew, the mayor, and try to set up a meet-
ing for the following night, and we will try to get
together and discuss a contract or talk it over." And he
asked me how I felt about it, and I said, "Well, I would
be willing to discuss it or to think about it, but I would
have to talk it over with the other workers, though."
Sexton denied having, "in those exact words," said, "John,
why are you doing this, why are you bringing in a union, why
did you pick the Machinists Union. You guys are not quali-
fied machinists." But he admitted asking Becker "why did
you go to the union" rather than "trying to sit down with
management and discuss these problems" as "propos[ed] by
the group that had met the other night."
8. The discharges on November 28
On November 28, starting shortly after the commencement
of work, Sexton called each employee into his office and
announced that he was fired for poor production23 but
could reapply for work the next day.24 All who did so reap-
ply on the 29th were granted immediate and full reinstate-
ment and were paid for the previous day. These consisted of
Bruehl, Dotson, Michael and Elizabeth Sanders, Orlet, Ros-
cow, Ohlendorf, Yoch, Daab, Mehrmann, and
Rodriquez.25
Evidently Sexton was not consulted about the decision to
discharge the employees but merely carried out the order. He
testified, however, that in his opinion the purpose was "to
re-organize the organization , we were trying to get some
organization in here to make this place run like any busi-
ness ." Asked to identify specific employees whom he had
criticized for poor production prior to November 28, he
named only Elizabeth Sanders, James Daab, and GaryOh-
lendorf (the three people in the mill room, whom he had
criticized "several times") and Ripplinger, adding that he
"suppose[d] maybe at one time [he] had said something to
just practically all of the people about their production."26
According to President Brown 's direct examination, it was
23 Ripplinger 's testimony that Sexton also told him at the time that he was
"nothing but an instigator" was undemed by Sexton.
24 Only two of the eight employees testifying as to such discharges denied
being told that they could reapply One of these was Frederick Lang who
also testified that Sexton told him, "It's not that I don't like your products,
it's just that you are terminated from Hydro-Dredge " I credit Sexton's
denial of this since I see no reason why Lang would have been treated
differently from the others in respect to the generally stated cause for
discharge . Similarly, I perceive no reason why all of these individuals would
not have been treated alike in being accorded the privilege to reapply,
particularly in view of the extension of the privilege even to John Becker
25 The last four are erroneously named in paragraph 7B of the complaint
as Yack , Dobb, Merkian , and Rocerequery , respectively
26 Among the employees testifying without contradiction to never having
been criticized for their work was Kreher who had worked at the plant for
5 years and was ultimately rehired January 22, 1974, without having to file
a new application and with a 25-cent raise and a further raise promised soon
his decision to discharge the employees on November 28 and
he explained its basis as follows:
A. Up until November the 14th and the dismissal of
Mr. Brueggeman , the situation as to actual problems
with departments with the employees, to my knowledge,
didn't exist. After this period it was just one incident
after the other, a daily occurrence, one work interrup-
tion after the other. We tried to remedy the situation on
an individual basis. We tried to give individual attention.
It didn't seem like it was working at all well. It further
appeared that we had a certain actor [sic], hard core of
people who had the idea that they could work at their
pleasure .27 They always made sure that they punched
the clock so that the evidence of their time was available
and on the record. However, the amount of work they
were giving us was poor , the overall situation to the
requirements of management insofar as machinery, the
safety items that were implemented, hats, the wearing of
glasses , all of these conditions . We seemed to be unable
to standardize in the plant particularly on one shift and
as a result we tried repeatedly as far as I am concerned,
repeatedly to cooperate to bring about a satisfactory
conclusion and to get people motivated to a policy that
we felt would be generally productive for the company
and when we couldn't do this we decided or kicked
around the idea of just firing everybody a long time ago
and starting all over again in this manner , selecting these
people who we knew had the potential and capability of
fulfilling the work requirements that we felt they were
hired for. This was the basis for the decision.
On cross, he testified that Respondent had never fired any
employee before at Smithton since the plant opened in 1959,
but that the mass discharge on November 28 resulted from
the failure of the employees to change their unsatisfactory
attitude which had prevailed prior to the resumption of work
on the 21st. Moreover, he testified, "I personally saw hats
thrown out in the yard, hats that the company had pur-
chased, destructed [sic] willfully. I observed personally peo-
ple that were running grinding wheels without goggles on."
Asked when he had made these observations, he replied, "I
was at the plant and arrived on November 20th and I person-
ally stayed through that week . It was during this period."
And he replied affirmatively to the specific question as to
whether he was "in the plant the entire period of November
21 to November 28." Pressed on further cross-examination,
however, Brown admitted that he had not been in Smithton
after the 21st.
9. The contract with the Association
Either November 29 or 30, the employees who had re-
turned to work met in the shop and elected Elizabeth
Sanders25 as their spokesman to discuss with Brown the
subject of raises that had been promised them in August and
to get their terms of employment "down on a piece of paper."
27 Brown identified the "hard core" as including John and Thomas
Becker, Ripplinger , and the Langs.
28 She was "lead man" in the mill room She had not been invited to
attend, and had not even known about the employees ' meeting with Haw-
kins on November 24
HYDRO-DREDGE ACCESSORY CO.
She immediately went in to see him and asked if he would
draw up a contract. He said he would not but would draw up
an outline for one He thereupon drafted a document called
"Hydro Dredge Employees Association Wage Contract"
containing 29 items covering wages , hours, and other terms
and conditions of employment to be effective for 1 year begin-
ning December 1, 1973. He called Mrs. Sanders into the office
at the start of the lunch hour and asked how it sounded. She
said she would have to let the others look at it and he "al-
lowed a ten-minute meeting" after lunch "to discuss it." They
made "quite a few changes," and she brought it back to
Brown who agreed to the changes. He then said that "he
wanted someone else besides just me to be speaking for the
employees" and asked whom she would like as co-signers.
She indicated they should be good workers, knowledgeable
and regular in attendance , and he suggested Dotson and
Bruehl. So she called them in, asked if they would participate,
and they said, "If it was all right with Mr. Brown, it was fine
with them, they would be glad to." She and they thereupon
signed it for the employees, and Sexton signed for Respond-
ent. Sexton's suggestion later that day that all the employees
also sign was accepted by Mrs. Sanders, and Sexton called in,
one at a time , the nine employees then in the plant to add
their signatures to the document.
Thereafter, Brown asked Mrs. Sanders if the employees
wanted an attorney to examine the contract so that if it was
not "a good thing" Brown could be so advised. She said she
knew an attorney. Brown asked if he would charge a fee, and
she said he probably would but might not because she knew
him.
10. Later requests for reinstatement
The employees who did not reapply on November 2929
acted on the advice of Business Representative Hawkins. He
advised against reapplying because it would mean agreeing to
Respondent's conditions and starting out as new employees.
However, on January 21, 1974, employee Kreher went to the
plant to inquire as to the status of his hospitalization insur-
ance and, in the course of his conversation with Sexton, the
latter asked why the employees still out had never come back
to work. Kreher answered that he thought they would if they
did not have to fill out new applications and forfeit seniority
and accrued benefits. That evening Sexton called him at home
and invited him to the plant the next morning to discuss
rehiring. The following morning he agreed to return with a
wage increase and Sexton authorized him to invite the other
employees in to discuss their reemployment. Kreher was to
start work at 3 p.m. that day and meanwhile transmitted the
message to several of the other employees. They evidently
communicated with Hawkins who withdrew his objection to
their return. When Kreher returned at 3 o'clock Sexton said
there would be one change in their arrangement, to wit, he
would have to file a new application. Upon Kreher's flat
refusal, Sexton asked him to step outside so he could make
a phone call. He then called Kreher back in'and said a new
application would not be required.
On January 22, immediately upon getting the information
29 They knew within the next few days that those who had reapplied were
taken back
147
from Kreher, the Beckers, the Langs, Matthew Yarber, and
Ripplinger repaired to the plant, and Sexton, expressing sur-
prise that so many had come at once, stated he would have
to fit them in and would notify them. Frederick Lang started
the following day and the others were later told to report on
Monday, January 28.
By the time of the hearing the only employees not back at
work (apart from Steve Becker who never sought to return)
appeared to be four students, including Gary Neff, Dennis
Nagel, Michael Yarber, and Jack Bayers.30 Michael Neff,
another student, called Sexton on January 24 about going
back to work, Sexton said he needed full-time help, and Neff
said he would be in the next day to see Sexton. He went to
the plant the next day but Sexton had gone to Chicago, so
Neff returned on February 1. Sexton asked if Neff could start
work every day at 3 o'clock, and Neff said he could not.
Sexton said he wanted only "fulltime"31 help because if the
student worked with a partner the latter would have down
time until the student arrived. Neff, however, usually worked
alone on a lathe and said so, but Sexton insisted that he would
have to work full time.32 Sexton similarly informed Nagel
and Michael Yarber when they saw him a few days before the
start of the instant hearing.33
President Brown's testimony that Respondent had initially
favored the practice of hiring part-time employees but began
to contemplate a change when it replaced its former plant
manager continued as follows:
Q. And what conclusions did you reach with respect
to whether or not you could continue to operate on an
efficient level with the use of part-time employees?
A. Well, we had too many and it became most un-
workable.
Q. Why?
A. Because you have one coming to work at one time
and another at another time, it's difficult to have an
arrangement where people come to work at almost any
time they feel like they can come to work.
Q. All right, why when it had functioned for so many
years?
A. Because there is people standing around waiting,
they were doing nothing while waiting for people to
arrive and production schedules couldn't be met, gener-
ally unworkable.
Q. And what is the situation now?
A. Our policy is not to have part-time employees.31
30 There is no evidence that either Gary Neff or Bayers asked to return
Bayers approached Sexton the first day of the instant hearing and said he
wanted to talk to Sexton but no such talk appears to have been held as of
the close of the hearing
31 On Monday, Wednesday, and Friday, during the school year, Neff had
started work at 3:30
32 Neff talked with Sexton again on March 6, the day before the com-
mencement of the instant hearing, and evidently was then reinstated, ac-
cording to Sexton's testimony on March 8 The record does not show his
current hours but he testified that during this academic year he could report
at 3 on Monday, Wednesday, and Friday but not until 4 30 on Tuesday and
Thursday
33 Nagel, prior to his discharge, had started work at 4 o'clock. Yarber not
only started at 4 but, unlike Nagel and Neff who worked till the end of the
shift, left at 9.
34 Sexton also geared the new requirement for full-time workers to "the
fact that the majority of lobs in this plant are a situation where a person is
working with another team member "
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown conceded that the changed policy was not imple-
mented until after November 2835 and that even the new
policy contemplated the consideration of part-timers' ap-
plications for reemployment. One part-timer, Michael Sand-
ers, a high school student'and son of Elizabeth Sanders, was
reinstated prior to the hearing. His hours are the same as
those worked by Michael Yarber before November 28. Ac-
cording to Sexton, Sanders is a sandblaster but his major
duties consist of helping other employees in other occupa-
tions because the sandblasting (which involves his working
alone) consumes only a little of his time.
B. Analysis
1. Section 8(a)(1)
a. Events of November 17-20
(1) The discharges
According to President Brown, Respondent had suffered a
deterioration of its product as a result of poor workmanship
at least since the beginning of 1973. He nevertheless testified
that until the replacement of Manager Brueggeman on
November 14 there were no "actual problems with ... the
employees," but that such problems developed with manage-
ment's subsequent insistence upon the implementation of its
safety conditions. Noteworthy in this connection, however, is
the fact that at no time prior to Saturday, November 17, had
any employee ever been fired for any reason, Respondent's
tolerance extending even to such open and gross insubordina-
tion as that exhibited by John Becker in the smoking incident
on the day of Sexton's accession.
But a novel situation arose on November 17. For the first
time the employees were acting in concert and indeed threat-
ening to strike. Sexton managed to avert an immediate walk-
out by offering to comply soon with such demands as he
deemed reasonable. By Monday, however, after undergoing
a change of heart following discussion of the matter with
company headquarters in Chicago, he admittedly informed
the employees in essence that Respondent did not share their
sense of urgency, and added that if they were "not happy with
the situation [they] had the alternative to quit" or "punch the
clock on the wall and go home."
Up to this point Respondent committed no wrong cogniza-
ble by the Act. But the picture sharply changed the following
evening at the Village Hall when Sexton announced that
those employees who had accepted his alternative suggestion
and left he plant on the 19th were no longer considered
employed. Sexton's own testimony makes clear that the men
involved were acting in unison in walking out, that the walk-
out was over their terms and conditions of employment, and
that, as Thomas Becker put it, there was no intention to quit
but only to stay out "until something got settled."
In arguing (br., p. 11) that the employees involved were not
discharged but either quit or went on strike, Respondent
ignores Sexton's announcement of the 20th noted above. The
35 Respondent also conceded the unilateral institution on November 28
of a formal disciplinary system as well as the discontinuance of its practice
of paying up to $15 toward the purchase of safety shoes
import of the announcement is demonstrated by Respon-
dent's action, when later relenting, in taking them back "on
probation." And, if Respondent is confining its analysis to the
events of the 19th precisely, it must be observed that the
complaint alleges these discharges "on or about November
19." Earlier in its brief, moreover (p. 2), as well as in its
answer, Respondent admits discharging the individuals in
question, contesting only the motive. Since, as noted above,
the very nature of the action-discharge for a concerted ces-
sation of work over terms of employment and not otherwise
unprotected-establishes the effect proscribed by Section
8(a)(1), the violation is clear without regard to motive, al-
though I would have no difficulty on these facts in finding a
purpose to inhibit concerted action if that were
necessary.36 Cf. B&P Motor Express Incorporated, 171
NLRB 1289 (1968).
The employees participating in the walkout were John and
Thomas Becker, Robert Lang, Dennis Nagel, Michael
Yarber, and Jack Bayers.37 However, I find no violation in
respect to John Becker whose discharge was the result of
misconduct on his part unrelated to the walkout. While his
precipitation of the walkout would doubtless have caused him
to suffer the same discharge as the others his violent behavior
the night of the 19th relieved Respondent of having to face
up to the issue.38
Finally, on this phase of the case, I find Ripplinger also to
have been unlawfully discharged on the 20th. His testimony
that Brown ordered him to turn in his resignation during
their argument over the walkout on the 19th was uncon-
tradicted by Brown. That he was later told that Respondent
was willing to forget the resignation if he "change[d his]
ways" does not affect the violation because, first, the condi-
tion involved an abstention from protected activity; and se-
cond, as Respondent's brief (p. 11) concedes, Respondent
"accept[ed] Ripplinger's resignation on the 20th. Respon-
dent's contention that the discharge was ineffective because
it "was withdrawn and he was back at work the next
day"-albeit probationally-applies equally to the others
who were all back at work the next day. The argument goes
to remedy, not to the substance, of the violation.
(2) The wage increases
The complaint was amended at the hearing, without objec-
tion, to add an 8(a)(1) allegation (par. 5G) that Respondent
36 Foreman Gabel had told them they were "all going to get fired" when
a strike appeared imminent on the 17th Although this statement is neither
alleged nor argued to constitute an independent violation , General Counsel
properly relies on it as a factor in establishing the unlawful discharge on the
20th
37 Although Bayers was not named in the complaint, the litigation of the
matter was as fully applicable to him as to the others Cf Bob Bundy, Inc,
205 NLRB 336, 337
38 1 also find no violation as to Richard Wagner whose inclusion in the
group named in the complaint is nowhere explained Despite the admissions
in Respondent 's answer and at p 2 of its brief that Wagner was a member
of the group discharged at that time, there is no evidence of the reason
therefor He does not appear to have worked on the night shift and there
is no evidence that he was a party to the walkout However, Respondent errs
(br , p 11) in linking Nagel and Michael Yarber to Wagner as employees
with respect to whose participation in the walkout the record is silent There
is an abundance of testimony , including Sexton 's tying Nagel and Yarber to
the walkout (ir, pp 192, 263, 280-281)
HYDRO- DREDGE ACCESSORY CO 149
gave three employees wage raises on or about November 19
"in order to discourage their concerted activities." General
Counsel, stressing the timing, relies on the evidence of the
raises given the Neffs shortly after they had agreed to remain
at work when the others walked out on the 19th. Respon-
dent's brief is not addressed to this point. I find merit to the
General Counsel's contention.
One of the principal grievances cited on November 17 had
been inadequate wages. If Respondent had deemed the em-
ployees entitled to raises it might well have avoided a walkout
altogether by satisfying this demand instead of indicating on
the 19th that no concessions were then available By precipi-
tating the walkout through its firm withholding of a wage
increase, and then immediately granting it to two of the four
employees remaining at work, I find Respondent rewarded
said employees for refraining from the walkout.39 That this
was indeed Respondent's purpose is further demonstrated, in
my opinion, by the unlikelihood of a valid economic motive
for increases to part-time employees whom Respondent, ac-
cording to Brown's testimony, was well on the way to elimi-
nating.
b. Sexton's conversations on November 27 with Ripplrnger
and John Becker
The credible evidence establishes that immediately upon
receipt of the Union's request for recognition Sexton called
Ripplrnger into his office to question him about it and how
he thought the Union would be helpful, and to caution him
against it; and that shortly after the start of the night shift the
same day Sexton called John Becker in, asked him why the
employees were bringing the Union in and what they really
wanted, stated they were not qualified machinists, that Re-
spondent could not afford to pay machinists' wages, and that
Respondent could move part of its operation to Chicago if it
wished to go union, and, upon Becker's indication that the
employees might be interested in having their own shop
union , offered to pay their legal expenses to work some-
thing out in that connection
The foregoing testimony of Ripplinger and John Becker is
entirely uncontradicted except insofar as Sexton denied only
having, "in those exact words," said, "John, why are you
doing this, why are you bringing in a union , why did you pick
the Machinists Union. You guys are not qualified machi-
nists," while admittedly asking Becker, "why did you go to
the union." The only additional challenge to the above tes-
timony is Respondent's argument (br., p. 10) that the alleged
statement to Becker that Respondent could move its roll-
building operation to Chicago40 is incredible because "Why
would Sexton have talked about going back to Chicago when
the Company never had a plant in Chicago? Why would the
Company go to Chicago for the purpose of getting a union
up there? Why would Respondent threaten to move only part
of its plant?" However, absent a denial of the testimony,
39 I make no finding as to Dotson, now presumably hostile to the activist
faction (in view of his return to work and his action as a cosigner of the
Association contract), who, according to Sexton's testimony, may have
received a raise too In this connection, the record is silent on Michael
Sanders, the fourth night-shift employee to remain at work, who also may
be presumed hostile to the activists
40 General Counsel's brief apparently inadvertently reads the threatened
removal as applying to the hose-building
which comes from an otherwise frank and credible witness,
the only basis for discrediting it would be its inherent lack of
credibility. I am unable to find it inherently incredible. Going
"back up to Chicago" could well relate to the fact that the
corporate office has always been located there. Going to
Chicago for the purpose of getting a union there is a distor-
tion of the statement Becker attributed to Sexton that the
Company could go to Chicago and get a union there "if
[it] wanted to go union." Such a move could well be economi-
cally sound if the alternative were unionization at Smithton
where the smaller labor force available offered a lesser cer-
tainty of help sufficiently competent to compensate for the
improved working conditions the Union might reasonably be
expected to demand. As to why Respondent would threaten
to move only part of its business I have no ready answer on
this record. But I might suggest that factors such as the size
of the particular portion of work involved, the nature of the
machinery and equipment involved, the location of customers
for that portion, projections of future operations, etc., may
well bear on the question. Suffice it to say that the testimony
does not carry its own death wound.
In agreement with the General Counsel, I find these facts
to constitute the following violations of Section 8(a)(1).
(1) Threatening the removal of work rather than accept
unionization at Smithton-Respondent's sole contention in
respect to this is the alleged lack of credibility which has been
treated above
(2) Encouraging Becker in the formation of an "independ-
ent" labor organization-the Board has recently held that an
employer's bare suggestion in this area violates the Act. GAF
Corporation, 195 NLRB 169, 170 (1972). While Respondent
correctly argues that Becker's own testimony (the sole basis
for the contention in General Counsel's brief) shows the
suggestion emanating from him, it is clear that Sexton did
more than dust welcome it. He affirmatively encouraged it by
offering to pay the necessary legal fees to achieve it. If Re-
spondent had in fact paid such fees that conduct would
clearly have constituted interference in the formation of a
labor organization as well as the contribution of financial
support, all in violation of Section 8(a)(2). Hence the offer to
pay was necessarily coercive and not merely "naive" as urged
by Respondent (br., p. 10).
(3) Coercively interrogating the employees-absent Re-
spondent's other violative conduct, the interrogation here
would not, in my opinion, violate the Act. It was confined to
probably the two principal activists both of whom had acted
openly in their organizing work before and after the advent
of the Union. They were therefore so known to Respondent
and knew they were. Nor did the interrogation seek to iden-
tify any other employees or even to ascertain the Union's
strength. Moreover, as Respondent argues (br., p. 9), Sexton
had reason to wonder about this new development in view of
all the talk only a few days earlier about the employees'
selecting a committee to deal with Respondent. Nevertheless,
I find Sexton overstepped the bounds because the interroga-
tion was inextricably interwoven with Respondent's interest
in keeping its employees away from an affiliated labor organi-
zation in general and from the Union in particular. This
finding rests in part on the 8(a)(1) violations I have already
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found and in part on the 8(a)(2) and (3) violations to which
I now turn.41
2. Section 8(a)(3)-the November 28 discharges
The General Counsel made his prima facie case by the
evidence of the mass discharges occurring but a day after
Respondent received the Union 's request for recognition and
Respondent's futile intervening attempts to dissuade the pnn-
cipal union supporters from continuing on that course, with
no other precipitating cause , and the stated cause-poor
production-appearing baseless and pretextual.
Respondent , apparently belatedly recognizing that the
"poor production" charge would not properly be leveled at
every employee , urges (Br., pp . 10-11) that the discharges on
November 28 were but "a tactical maneuver designed to
shake the employees out of their lethargy and hopefully to
change their attitude toward their jobs so that they would
produce the quality of product which Respondent required."
This contention must stand or fall on the testimony of Presi-
dent Brown who made the decision to discharge the em-
ployees. Respondent 's difficulty here stems mainly from the
incredibility of Brown's testimony.
Assuming the generally poor quality existing prior to
November 21 persisted , the 1-week period that intervened
prior to the mass discharges hardly seems long enough for
Brown to have reasonably expected noticeable improvement.
Moreover , in view of the resumption of work following the
rather serious breakdown only a week earlier , it does not seem
likely that even the utter failure of improvement in that brief
period would have evoked the drastic penalty of discharge of
the entire work force on the 28th from an employer that
admittedly had never discharged an employee before.42 In
any event the asserted basis for the alleged determination of
poor quality at that time simply did not exist . After first
testifying that he had been in Smithton throughout the week
in question and personally observed the employees ' derelic-
tions , Brown admitted that he had not been in Smithton at
all during that period . And even his fallback position, that
management in Smithton had "made , in [his opinion], every
effort" to call the malefactors in and discuss their errors or
misconduct , fails in light of Sexton 's inability to identify any
employees he had criticized other than Ripplinge?9 and the
three employees in the mail room, Elizabeth Sanders, Daab,
and Ohlendorf.44
Nor was the violation either negated or cured by the fact
that the employees were informed at the time of their dis-
charges that they could reapply the next day . As in the case
of the earlier discharges , this affects remedy rather than sub-
stance . Moreover , the offer was neither one of reinstatement
nor even of reemployment but only to consider reemploy-
ment . As Brown put it, Respondent had in mind a selective
process, "selecting these people who we knew had the poten-
tial and capability of fulfilling the work requirements that we
41 Contrary to the General Counsel, I find no basis whatever for the
contention that Sexton's references to the employees ' lack of machinists'
qualifications and to Respondent's inability to pay machinists' wages
"threatened Becker with loss of future wage raises" (br., p. 5)
42 Cf K Wm Beach Mfg Co, inc., 192 NLRB 203, 204 (1971)
43 Whose testimony was undenied that on the occasion of this discharge
Sexton called him "nothing but an instigator "
44 Who, despite repeated criticism of their work, were rehired the follow-
ing day
felt they were hired for. 1141 In these circumstances, Respon-
dent 's reliance on N.L.R.B. v. Thomas J. Aycock, Jr., d/b/a
Vita Foods, 377 F.2d 81 (C.A. 5, 1967), is misplaced even
assuming that decision to be binding on the Board, for while
a discriminatee must minimize his losses by seeking interim
employment Aycock does not require him to accept imposi-
tion of a condition at odds with the obligation of the employer
who has wronged him. That a discriminatee who has volun-
tanly accepted less than reinstatement may toll the em-
ployer's backpay liability if he thereafter quits "for reasons
unconnected with the discrimination" (id. at 87) does not
oblige the employee to accept the lesser job in the first place.
The court in Aycock itself acknowledged its "approv[al] of the
cases holding that a discriminatee's refusal to accept reem-
ployment which is less than a reinstatement may not consti-
tute willful loss" (ibid.) because such a refusal necessarily
relates to the discrimination. 46
3. Section 8(a)(2)
I find that Respondent violated Section 8(a)(2) by recog-
nizing the Association dung the pendency of a real question
concerning representation raised by the Union 's request for
recognition , and thereby giving it unlawful support . Midwest
Piping and Supply Co., 63 NLRB 1060. Indeed , as found
hereinafter , not only had the Union raised such a question but
Respondent 's Section 8(a)(1) and (3) conduct in response
thereto, supra, had rendered a fair election impossible or at
least so unlikely as to have bound Respondent to recognize
the Union. And such obligation necessarily precluded Re-
spondent from dealing with any other employee representa-
tive or indeed with the employees directly , even at their re-
quest . Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678,
683-684 (1944).47
I find that Respondent contributed further unlawful sup-
port and interfered with the administration of the Association
by its conduct in respect to the contract with the
Association ' 41 consisting of Brown's drafting the contract,
his negotiations with Mrs. Sanders concerning it, its typing
by the Company, Brown's decision that Mrs. Sanders ' signa-
ture should be accompanied by other Association representa-
tives and his selection of those representatives, and Sexton's
suggestion for the additional signatures of the individual em-
ployees and his calling them to his office for that purpose.
However , and despite other indications of a patronizing
attitude such as Brown's adding an extra 10 minutes to the
lunch period for the employees to consider the contract '41 1
do not deem the evidence sufficient to support a finding of
45 This attitude may well have excluded Brown's "hard core" on Novem-
ber 29 notwithstanding the later acceptance of at least some of them.
46 That those who reapplied may have been accorded full reinstatement
did not affect the rights of those who did not reapply, for even if the latter
knew that the others had been taken back they were in no position to know
that the original status of such individuals had been completely restored
47 Sec 8 (a)(2) was not involved in Medobecause the employer there dealt
directly with the employees and an ad hoc committee
48 Calling it an "outline" does not change its substance which was the
agreed specification of terms and conditions to govern the employment of
Respondent 's employees for a given period And, as noted supra, the docu-
ment is entitled , "Hydro Dredge Employees Association Wage Contract"
though it covers considerably more than wages
49 Noted also as background in this connection is Sexton's reference to
Killibrew 's proposal at the November 20 meeting that "we" try to form
some independent labor organization
HYDRO-DREDGE ACCESSORY CO 151
domination. Formation of the Association, as far as the re-
cord shows, was a spontaneous effort by the employees,50
and, apart from the interference noted above, the record is
barren of evidence of employer participation in its affairs.
4. Section 8(a)(5)
As found above, Respondent failed to reply to the Union's
demand for recognition except by immediately attempting to
discourage the employees' interest in the Union, and, unsuc-
cessful in this effort, discharging the employees the following
day. Despite the Union's possession of valid authorization
cards of a majority of the employees in the bargaining unit
at the time of its demand, Respondent, under applicable
Board law, did not violate Section 8(a)(5) by such conduct
unless a fair election was thereby rendered impossible or
unlikely. Green Briar Nursing Home, Inc., 201 NLRB 503,
503-504 (1973); R & M Electric Supply Co., 200 NLRB 603
(1972). I find that it was, and that at that point the rights of
the employees would have been "better protected by a bar-
gaining order" (N.L.R.B. v. Gissel Packing Co., 395 U.S. 575,
614-615 (1969)), for the mass discharge "carr[ied] a message
which [could] not be lost on employees in the voting group,"
particularly such a small unit of young and unsophisticated
people. Cf. General Stencils, Inc., 195 NLRB 1109, 1112
(1972) (dissenting opinion of Chairman Miller, seemingly
approved in 472 F.2d 170 (C.A. 2, 1972)).
The unlikelihood of a fair election has since become even
greater, in my opinion, by virtue of Respondent's recognition
of and negotiation of a contract with the Association, conduct
independently violative of Section 8(a)(5) as a breach of its
exclusive obligation to bargain with the Union.
Respondent cQncedes (br., p. 15) that if a bargaining order
is appropriate under Gissel, Respondent's unilateral institu-
tion of a formal disciplinary system, discontinuance of pay-
ments for safety shoes, and modification of its policy of em-
ploying part-timers all violated Section 8(a)(5). I accordingly
find these further violations.
Conclusions of Law
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Association is a labor organization within the mean-
ing of Section 2(5) of the Act
4. Respondent has violated Section 8(a)(1) of the Act by
discharging John Becker, Thomas Becker, Robert Lang,
Dennis Nagel, Michael Yarber, and Jack Bayers on Novem-
ber 19 for engaging in protected concerted activity; granting
wage increases-to Gary and Michael Neff on the same date
for refraining therefrom; and coercively interrogating em-
ployees concerning unionization, threatening removal of
work rather than accept unionization, and encouraging the
formation of a labor organization on November 27.
5. Respondent has violated Section 8(a)(2) of the Act by
interfering with the administration of the Association and
contributing support to it; by recognizing it and negotiating
and entering into a contract with it in the face of the Union's
demand for recognition and majority status; and by interfer-
ing with the designation of the Association 's signatories.
6. Respondent has violated Section 8(a)(3) of the Act by
discharging its employees on November 28 to discourage
their union activities.
7. Respondent has violated Section 8 (a)(5) of the Act by
refusing to bargain with the Union.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Respondent did not violate the Act except as found
above.
REMEDY
In order to remedy the unfair labor practices found herein
my recommended Order will require Respondent to cease
and desist therefrom, and, in view of the number, variety, and
seriousness of the violations and the danger of recurrence, to
cease and desist from infringing on the Section 7 rights of its
employees in any other manner. In order to effectuate the
policies of the Act, my recommended Order will also require
Respondent to offer full reinstatement with backpay to all
employees discharged on November 28 who have not re-
ceived both. In accordance with customary requirements,
reinstatement shall be to each employee's former job, or, if
that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges. Each employee shall be made whole for any loss
of earnings he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money equal
to that which he would have earned from the date of dis-
charge to the date of a valid offer of reinstatement, less net
earnings during such period, to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). More-
over, the recommended Order will require Respondent to
withdraw and withhold all recognition from the Association
as the collective-bargaining representative of any of Respon-
dent's employees, both until it has complied with the provi-
sions of the Order requiring it to bargain with the Union and
unless and until the Association has been certified as such
representative by the Board; and to refrain from giving effect
to its contract with the Association, without, however, any
abandonment of terms or conditions of employment which
abandonment may work to the detriment of the employees.
Finally, and more particularly for the reasons set forth in
subsection B,4, supra, entitled "Section 8(a)(5)," my recom-
mended Order will require that Respondent bargain collec-
tively and in good faith with the Union upon the Union's
request in the unit alleged in the complaint; and that it dis-
continue its unilaterally established policies hereinabove
found violative of the Act.51
50 General Counsel does not even rely on Sexton's admission of an earlier
suggestion along this line, possibly because of the employee testimony in-
dicating that the employees considered such a venture prior to Sexton's
suggestion.
51 I shall not, however, recommend any specific remedy on this record in
respect to any discipline that may have been administered to Ripplinger
under the new disciplinary system because I understood the specific allega-
tion offered near the close of the hearing in that connection to have been
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Upon the foregoing findings of fact and conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDER 12
Respondent, Hydro-Dredge Accessory Co., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees concern-
ing their union activities, views, or sympathies.
(b) Threatening any of its employees with removal of work
to avoid unionization.
(c) Encouraging any of its employees to form a labor organ-
ization.
(d) Granting wage increases to any of its employees as a
reward for refraining from protected concerted activity.
(e) Discharging or otherwise discriminating against any of
its employees for engaging in union or other protected con-
certed activity.
(f) Interfering with the administration of Hydro-Dredge
Employees Association or any other labor organization, or
contributing financial or other support to it.
(g) Giving effect to any contract with Hydro-Dredge Em-
ployees Association, except that it shall not abandon any
substantive terms or conditions of employment embodied
therein where such abandonment may operate to the detri-
ment of the employees.
(h) Refusing to bargain collectively and in good faith with
District No. 9, International Association of Machinists and
Aerospace Workers, AFL-CIO (hereinafter called the
Union), as the exclusive representative of its employees in
the following appropriate unit:
All fulltime and regular parttime production and
maintenance employees and truckdrivers employed at
Respondent's Smithton, Illinois, facility, EXCLUDING
all office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(i) Giving effect to any unilateral changes made after
November 27 in respect to any terms or conditions of employ-
ment.
(1) In any other manner interfering with, restraining, or
withdrawn Although the General Counsel phrased his withdrawal in terms
of "the 8(a)(3) amendment," that was the only amendment mentioning
Ripplinger by name, it was precisely the naming of Ripplinger to which
Respondent had objected , and my approval of the withdrawal of the motion
to amend referred generally to the "amendment of the complaint regarding
Mr Ripplmger "
51 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
coercing its employees in the exercise of their rights guaran-
teed by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer full reinstatement to their former jobs or, if their
jobs no longer exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights and privileges, to
all employees found herein to have been discharged on
November 28, 1973, and not yet fully reinstated, and make
all its employees whole for any loss of pay suffered by reason
of their discharge in the manner set forth in the section of this
Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, as well as all other records necessary
to analyze and compute the amount of backpay due under the
terms hereof.
(c) Upon request, bargain collectively and in good faith
with the Union as the exclusive representative of all the em-
ployees in the above-described bargaining unit, and embody
in a signed agreement any understanding reached.
(d) Withdraw and withhold all recognition from Hydro-
Dredge Employees Association as the collective- bargaining
representative of any of Respondent's employees until it has
complied with the provisions hereof requiring it to bargain
with the Union and unless and until the Association has been
certified as such representative by the Board.
(e) Post at its place of business in Smithton, Illinois, copies
of the attached notice marked "Appendix."53 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 14, after being duly signed by an authorized representa-
tive of Respondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60 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 covered by any other material.
(f) Notify the Regional Director, in writing, within 20 days
of the Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be dismissed in-
sofar as it alleges violations of the Act not specifically found.
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
53 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "