Mooney Aircraft, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1964

148 N.L.R.B. 1057 (N.L.R.B. 1964)

MOONEY AIRCRAFT, 'INC. 1057
latter, of course, belong in the unit, the former do not. However, we
shall leave to the parties, in the first instance, the problem of devising
a formula which will separate the regular part-time from the casual
employees. If the parties are unable to agree on such a formula, extra
banquet department personnel and extra maids will be permitted to
vote subject to challenge.'
We find that the following employees of the Employer at the
Columbus Plaza'Motor Hotel, Columbus, Ohio, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-,
ing of Section 9(b) of the Act:
All employees engaged in the preparation, handling, or serving of
food and beverages, or engaged in the performance of public house-
keeping services, including maintenance department employees, gar-
age employees, banquet captains, compass points captains, bell cap-
tains, regular part-time extra banquet department employees, and
regular part-time extra maids, but excluding office clerical employees,,
desk clerks, PBX operators, casual employees, guards, professional,
employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Direction of Election.
8 Tulsa Hotel Management Corporation, supra.
Mooney Aircraft , Inc. and Lodge 725, International Association,
of Machinists, AFL-CIO. Cases Nos. 23-CA-1015, 923-CA-1055,,
and 23-CA-1056. September 16, 1964
SUPPLEMENTAL DECISION AND ORDER
On August 24, 1961, the Board issued its Decision and Order in,
these cases,' finding, inter alia, that the Respondent had defaulted in
its statutory obligation to reinstate the unfair labor practice strikers.
by reinstating them 'to employment other than on the 5-day, 40-hour
week basis that had been in effect before the strike and ordering the
Respondent to make these strikers whole for any loss of earnings at-
tributable to their belated and incomplete reinstatement.
Pursuant to the provisions of Section 3(b) of the National Labor-
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and. Mem,
bers Fanning and Jenkins].
i 132 NLRB 1194.
148 NLRB No. 108.
760-577-65-vol 148-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 28, 1962, following a petition by the Board for the
enforcement of its Order, the United States Court of Appeals for the
Fifth Circuit handed down its opinion herein and entered its
decree enforcing in full the Board's Order, including the backpay
provisions.'
On March 29, 1963, the Board's Regional,Director for Region 23
issued and served upon the parties a backpay specification and notice
of hearing. In the backpay specification it is asserted that the prior'
to the April 1960 strike the employees had worked a 5-day, 40-hour
workweek; however, because of the Respondent's retention.of striker
replacements, the; reinstated strikers were put on a 4-day, 32-hour
workweek. Accordingly, it is alleged that the strikers are due the
difference between the pay they received for the 4-day workweek and
that which they would have received on the basis of a regular 5-day
workweek. In addition, it is alleged that the Respondent improperly
excluded strike time from time worked in computing eligibilty for
vacation pay under its vacation plan, as more fully set out below.
The specification therefore seeks, for 37 reinstated strikers, a recom-
putation of the anniversary dates of their entry into Respondent's
employ, to include strike time as time worked, and for 9 reinstated
strikers, no longer employed by Respondent, payment of vacation
pay they, lost because of the Respondent's exclusion-of strike time in
computing the time when they became entitled to their vacations.
On April 16, 1963, the Respondent filed an answer to the specifica-
tion. Pursuant to notice, a hearing was held before Trial Examiner
Arthur E. Reyman on April 23, 24, and 25, 1963. On October 15,
1963, the Trial Examiner issued his Decision on Backpay, attached
hereto, finding that the specified claimants were entitled to the in-
dicated amounts of backpay, with interest at 6 percent per annum
running from the date of his Decision until paid.' Thereafter, the
General Counsel and the Respondent filed exceptions to the Decision
on Backpay and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in these cases, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner with the following addi-
tions and modifications.
The Trial Examiner found that the 70 backpay claimants were en-
titled to the amounts set forth in the specification. He also found that
2310 F 2d 565 (CA. 5).
3 Isis Plumbing 4 Heattinq Co, 138 NLRB 716
'In his Decision the Trial Examiner states that on or about August 1, 1960,_ t_he Re-
spondent promulgated a vacation plan in a publication entitled "Employee ' s Guide." The
record evidence, however, supports the Respondent 's contention that the vacation plan
was promulgated in December 1958.
MOONEY AIRCRAFT, INC 1059
the Respondent had excluded strike time in computing the dates when
reinstated strikers would be entitled to vacation pay 6 Accordingly,
he found that the nine stn ilccrs no longer employed were entitled to
vacation pay, which he awarded, but in doing so he inadvertently
neglected to award them their backpay He did not order the Re-
spondent to recompute the vacation dates for the 37 reinstated strikers
still employed
The Respondent filed geneial exceptions to the Trial Examiner's
Decision The General Counsel specifically excepts to the Trial Ex-
aminer s failure to order Respondent to recompute the vacation time
of the reinstated employees and to his failuie to credit the nine speci-
fied employees w itli backpay in addition to vacation pay
The I3oaid does nol aw aid backpay to strikers for wages lost during
sti lke time Vacation benefits are a form of deferred wages to which
employees are not entitled during strike time See General Electric
Company, 80 NLRB 510 Here the Respondent's plan, as earlier
noted, iequned 1 year of actual work as a prerequisite for vacation
eligibility As the nine reinstated employees who are no longer em-
ployed did not meet this requirement, they are not entitled to vacation
pay Accordingly, we find that the Trial Examiner's award to them
of vacation pay was erroneous 6 It is clear, however, that the afore-
said rune stn. ikers are entitled to conventional backpay, in accordance
with the tennis of the Board's prior order., to make them whole for any
loss of earnings atti ibutable to then belated and incomplete reinstate-
ment The Trial Examiners order did not so provide Our order cor-
i ects this omission
We do not adopt the Trial Examiner's recommendation that inter-
est be paid on backpay, as the payment of interest was not requned
by the Board s original Or der which was enforced in full by the court
See General E,?rginreering, Inc , and Hai vey Aluminum (Inaoi po-
rated) ,147 NLRB 1442
ORDER
On the basis of the foiegoing Decision on Backpay and the entie
record in these cases, the National Labor Relations Board hereby
orders that the Respondent, Mooney Aircraft, Inc, its officers, agents,
successors, and assigns, shall pay to the employees involved in this
proceeding, as net backpay herein determined to be dice, in the total
of $10,739 56, the amounts set forth opposite their names in the "Con-
6 Respondent's % ac ition pinn granted every employee who had a orked for at least 1 Sear
a 1 week (40 hour) %acation effective the following December 1959 Pmployees hired by
the Respondent after the promulgation of the plan 'eould be similarly eligible for a
1 week Vacation 1 year after the date of hire In accruing the necessary 1 Sear of work-
time, all absences of more than 2 dims' duration would et back the anniversary date
gat follows from this that we do not order the Respondent to recompute the anniversary
dates for the 37 reinstated strikers still employed
1060 DECISIOI VOF NATIONf', -LABOR• RELATIONS BOARIY
eluding Findings" of the Trial Examiner except for the following em-
pldyees who shall be paid that amount noted after their names: 7
C. A. Gammenthaler_ $165. 30 L. D. T. Long_______ $168.00
L. H. Howe________ 226. 10 R. B. Fikes_________ 94.90
0. J. Sutton________ 144.50 P. J. Staudt________ 110.00
Albert Collazo______ 72.00 L. H. Ludeke_______ 28.80,
J. J. Morrow_______ 72.00
7 The Trial Examiner inadvertently awarded Herman Robbins the sum of $165 87 rather
than the sum of $165.57 specified by the General Counsel.
TRIAL EXAMINER'S DECISION ON BACKPAY
PREFATORY STATEMENT
In these consolidated cases, the National Labor Relations Board has held that by
reason of certain unfair labor practices engaged in by the Respondent, Mooney Air-
craft, Inc., the Respondent is liable for backpay to some 70 individuals, employees or
former employees of the Respondent, who went on strike against the Company and
who later were ordered reinstated with backpay. The Decision and Order of the
Board fully sets forth the facts in 132 NLRB at 1194 et seq.; the Order was entered'
and thereafter enforced by a decree of the Circuit Court of Appeals for the Fifth'
Circuit, 310 F. 2d 565.
Upon appropriate notice, a hearing was held before Trial Examiner Arthur E.
Reyman at Kerrville, Texas, beginning on April 23 and closing on April 25, 1963,
for the purpose of determining the amount of backpay due each individual employee
or former employee to whom any amount of backpay might be due as found to be
due in amounts computed by a representative of the Regional Director for Region 6.
At the hearing, each party was afforded full opportunity to call, examine, and
cross-examine witnesses, to introduce relevant and material evidence, to present oral
argument and, if desired, to file briefs. None of the parties filed a brief.
THE PLEADINGS HEREIN
After the filing of backpay specifications by the Regional Director, the Respondent
filed an original answer, and this Trial Examiner, at the hearing, received in evidence
as a part of the formal record herein a supplemental answer, together with amend-
ments to the Respondent's original answer.
After the amendment was allowed in answer to the complaint, at the hearing, the
Trial Examiner accepted a motion in three parts made on behalf of the General
Counsel under Section 102.54(c) of the Board's Rules and Regulations, Series 8, as
amended. The first ground ,of' the motion was directed toward the granting of the
specifications:
(a) The allegations in the above-enumerated paragraphs of the specification [num-
bering them] meet the requirements of the Board's Rules and Regulations.
(b) The allegations in the said paragraphs are matters within the knowledge of
the Respondent.
(c) Respondent, in its answer, has not disputed the accuracy of the figures con-
tained in any of the said paragraphs.
Under the Board's Rules and Regulations governing backpay proceedings, par-
ticularly Section 102.54(c), this Trial Examiner, at the hearing, on the first motion
by counsel for the General Counsel granted the motion which, in effect, amounted
to the granting of a judgment on the pleadings.
The Respondent's` original answer, as amended, set up no diminution of damage or
offset. Private debts incurred by individuals while employed at Mooney Aircraft,
the Respondent, must stand in line with any other, if any, creditors or any individual
employee to whom backpay may have been included and to whom backpay is due.
This is not meant to say that the Respondent and the individual may not -make -a-
private agreement settling any claim the Respondent may have against any individual
present or former employee.
The second part of the motion presented by counsel for the General Counsel re-
ferred to other numbered paragraphs of the original answers, and requested the Trial
Examiner to find to be true the allegations of such specifications and to preclude the
Respondent from introducing any evidence controverting the allegations on these
following grounds:
(a) The allegations in the above-enumerated paragraphs of the specification meet
the requirements of the Board's Rules and Regulations.
MOONEY AIRCRAFT, INC. 1061
(b) The allegations in the said paragraphs are' matters within the knowledge of
the Respondent.
(c) Respondent, in its answer, has not specifically stated any basis for disagree-
ment with the facts and figures contained in the above-mentioned paragraphs, nor
has it set forth in detail, or otherwise, its position as to the applicable premises, or
furnished appropriate supporting figures.
The third part of the motion is in effect a motion for judgment on the pleadings in
regard to the failure to admit or deny any such allegations by answer or original
answer filed by the Respondent, counsel requesting that these numbered specifica-
tions be admitted to be true, and the Respondent be precluded from introducing any
evidence controverting the numbered specifications on the following grounds:
(a) The allegations in the above-enumerated paragraphs of the specification meet
the requirements of the Board's Rules and Regulations.
(b) The allegations in the said paragraphs are matters within the knowledge of
the Respondent.
(c) Respondent's answer to the allegations of the ' said paragraphs does not
relate to the remedy ordered by the Board and,enforced by court decree in that it
does not pertain to the hours less than 40 per week worked by the individually
named discriminatees.
(d) In the alternative, Respondent, by its answer, pleads no'basis for its dispute
of the allegations of the above-enumerated paragraphs of the specification, nor
pleads or details its position as to the applicable basis for computing backpay.1
i The applicable sections and subsections of the Rules and Regulations of the Board,
Series 8, as amended, read as follows
Backpay- Proceedings
4 * R • R i #
SEC 102 53 Contents of backpay specification ,and of notice of hearing without
specification.
(a) Contents of backpay specification.-Where the specification procedure is used,
the specification shall specifically and in detail show, for each employee, the backpay
periods broken down by calendar quarters, the specific figures and basis of computa-
tion as to gross backpay and interim earnings, the,expenses for each quarter, the net
backpay due, and any other pertinent information
SEC. 102 54 Answer to specification; no requirement for answer to notice of hear-
ing issued without backpay specification.
(a) Filing and service of answer to specification-The respondent shall, within
15 days from the service of the specification, if any, file.an answer thereto ; an original
and four copies shall be filed with the regional director issuing the specification, and
a copy thereof shall immediately be served on any other respondent jointly liable.
(b) Contents of the answer to, specification-The answer to the specification shall
be in writing, the original being signed and sworn to by the respondent or by a duly
authorized agent with appropriate power of attorney affixed, and shall contain the
post office address of the respondent. The respondent shall specifically admit, deny,
or explain each and every allegation of the specification, unless the respondent is
without knowledge, in which case the respondent shall so state, Such statement operat-
ing as a denial. Denials shall fairly meet the substance of the allegations of the
specification denied . When a respondent intends to deny only a part of an allega-
tion, the respondent shall specify so much of it as is true and shall deny only the
remainder. As to all matters within the knowledge of the respondent, including but
not limited to the various factors 'entering into the computation of gross backpay, a
general denial shall not suffice. As to such, matters, if the respondent disputes either
the accuracy of the figures in the specification , or the premises on which they are
based, he shall specifically state the basis of his disagreement` setting forth in detail
his position as to the applicable premises and furnishing the appropriate supporting
figures
(c) Effect of failure to answer or to plead specifically and in detail to the specifi-
cation -If the respondent falls to file any answer to the specification within the
time prescribed by this section, the Board may, either with or without taking evi-
dence in support of the allegations of the specification and without notice to the re-
spondent, find the specification to be true and enter such order as may be appropriate.
If the respondent files an answer to the specification but fails to deny any allegation
of the specification in the manner required by paragraph (b) of this section, and the
failure so to deny is not adequately explained, such allegation shall be deemed to be
admitted to be true, and may be so found by the Board without the taking of evi-
dence supporting such allegation, and the respondent shall be precluded from intro-
ducing any evidence controverting said allegation.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Undenied Facts as Contained Within the Backpay Specifications -as
Issued on March 29, 1963
As noted, the Decision and Order of the Board based on an Intermediate Report
of Trial Examiner Arnold Ordman, issued March 16, 1961, passed on the facts
leading the Board to affirm the Trial Examiner in findings of unfair labor practices
under which backpay amounts have accrued to the strikers. At the hearing herein,
this Trial Examiner not once but several times urged upon counsel for the Respond-
ent the necessity for him to introduce evidence going to diminution of damage in
the way of amounts of backpay owed by using the procedures established by the
Board, and if possible to show that the formal adoption for the computation of back-
pay did not follow the remedy prescribed by the Board in its Decision and Order.
No evidence whatsoever appears in the record of the hearing before me which
would go to show diminution of amounts of backpay due by the Respondent to
the individuals. On the contrary, the Respondent insisted that it was entitled to
offset by reason of policies and practices adopted by the Company in a change-
over,from a 5-day to a 4-day workweek. Under the principles laid down by the
Board in Mastro Plastics Corporation, 136 NLRB 1342, the Respondent utterly
failed to show any reasonable ground for offset by reason of outside earnings or
other independent income during the periods in which the Board found these strikers
would be entitled to backpay. The Respondent took a firm position that it would
be entitled to credit the cost of initiation of a 4-day workweek as against a 5-day
workweek in regard to any employee who the Board has said is entitled to backpay.
The Trial Examiner rejected the following offer of proof made by counsel for the
Respondent at the hearing:
TRIAL EXAMINER: But I will not relitigate the merits of the unfair labor
practice charges.
Mr. RACIAL: Yes, sir, and I am not asking Your Honor to, and the reason
for introducing this is to show that on our short week, the day that was-
became a non-work day was Friday because that ties in, with the proof that
I am going to introduce here as to how many days these respective employees-
I am going into each one, the days that they missed, to show the days that
were not missed due to the,fault of the Company, the Respondent, as opposed
to the days that an employee might have missed voluntarily because of reasons
of his own.
On the basis of the written specification of backpay due and the answer thereto,
as amended, and on rejection of the above' quoted offer of proof, the grounds of
the motion of the General Counsel must be found to be conceded, and I therefore
make the following findings:
The backpay, period in this proceeding, as set forth in the above reference to
Decision and Order of the Board, commences on July 11, 1960.
The employees to whom backpay is due are those who participated in the April to
July 1960 unfair labor practice strike against Respondent and who were reinstated
by Respondent in July and/or August 1960. These employees, prior to the April
1960 strike, had customarily and regularly worked a 5-day, 40-hour workweek for
Respondent; during the course of the April to July 1960 strike Respondent hired vari-
ous employees to perform the same or substantially equivalent work as had been
performed by the strikers prior to April 1960; subsequent to July 11, 1960, Respond-
ent kept various replacements in its employ, which replacements performed the same
or substantially equivalent work to which the reinstated strikers were assigned; and
that as a result of Respondent's retention of the employment of replacements, cer-
tain strikers were deprived of the customary and regular 5-day, 40-hour workweek
which they had been afforded prior to the strike.
The formula for computing the backpay due strikers is that set forth in the above-
cited Decision and Order of the Board at page 1195:
Accordingly, we shall order that the Respondent make these strikers whole for
any loss of pay they may have suffered by reason of the belated and incomplete
reinstatement by payment to each of them a sum of money which he would
have earned as wages based on a 5-day, 40-hour workweek during the period
from July 11, [1960] the next working day following the Union's uncondi-
tional application for reinstatement, to the day of complete reinstatement,
MOONEY AIRCRAFT 'INC. 1063
less the wages received from the Respondent during the period of incomplete
reinstatement.2
CONCLUDING FINDINGS
I therefore , on the basis of the foregoing findings of fact, grant the motion of the
General Counsel in its three several parts.
I find that the following claimants are entitled to the indicated amounts of
backpay:
Donald R . Anderson----- $ 140.00 A. C. Langehennig__,____ $51.60
J. M. Carnes____________ 154. 00 J . J. Morrow__ __________ - 74. 00
W. K. Cowden __________ 1-49.60 M. A. Ontiveros----------: 225. 36
James Spicer______:_____ 265.05 P. A. Ontiveros--------- 227.70
W. L. Colbath___________ 132.00 R . G. Perez_____________ 168. 00
J. D. Cox_______________ 170 . 53-.-- --Alcario Reyes____ _______ 242.00,
J. A. Gage______________ 284 . 35 J. C. Roe_______________ 98. 40
C. A. Gammenthaler_____ 80. 00 A. H. Weber_ ___________ 166. 18
T. S. Hodges____________ 105. 60 Romeo Garza ___________ 132. 00,
L. H. Howe_______ ______ 76.00 R. M. Heath____________ 72. 00
L. W. Immel____________ 221 . 60 W. J. Kozielski__________ 144. 00,
R. C. Reed_____________ 152.00 G. F. Parker____________ 135.20,
C. W. Schmidtzenski ______ 182. 40 L. L. Sanchez----------- 148. 00
R. E. Staudt____________ 149.60 W. E. Rieck______ _______ 135.20
J. P. Taylor___ __________ 150. 00 L . D. T. Long_____ ______ 70. 00,
R. E. Toepperwein_______ 154.00 R. B. Fikes_____________ 74.00'
E. G. Andrews---------- 150.72 J . H. Philyaw___________ 120.00
J. B. Chappins__________ 128. 80 F. S. Collazo____________ 173. 60,
V. J. DeLaCruz_________ 74.00 H . T. Cramer_____ ______ 84. 17
J. O. Guitierrez , Jr------- 209.95 G. E. Mays____ _________ 70. 55
C. H. Rabke____________ 162.80 P. J. Staudt_____________ 52.00,
O. J. Sutton_____________ 74. 00 D . A. Anderson--------- 128. 00
R. C. Johnson----------- 92.00 K . C. Childs____________ 242.25
D. L. Long_____________ 122.40 H . N. Fletcher---------- 242. 18
J. W. Brandenberger_____ 132.00 T. N. Hammit__________ 164.73
R. N. Carney____________ 145.50 W . W. Hanson__________ 168.47
J. A. Castro_____________ 149. 60 E. E. Jones_____________ 279. 10'
O. L. Smith --- ----------- 203. 80 W . D. Putnam , Jr-------- 244. 00
J. R. Burrow------------ 103. 50 K . F. Wilke_______ ______ 147.90•
Albert Collazo----------- 72.00 W . T. Wright----------- 64.00-
J. V. Cortez_____________ 216. 72 S . L. Cox______________ 81.60•
E. M. Durst____________ 168. 00 S . R. Kalka_____________ 188. 80,
M. J. Fuentes----------- 204.18 L . H. . Ludeke:_________ _ 74.00'
E. H. Holder____________ 201.60 C . W. McLean __________ 133. 20
K. W. Klarner___________ 137. 60 Herman Robbins________ 165. 87
I find, on the pleadings, that on or about August 1, 1960, the Respondent promul-
gated a vacation rule in a publication entitled "Employee's Guide" providing, in part:
All employees must have one full year of service with the Company exclusive-
of all absences before any vacation time is due.
and that the Respondent has refused and does now refuse to credit any of the claim-
ants with a period of time during which they were absent from work in 1960, during
the course of the unfair labor practice strike
I further find that on the summary of the facts and calculations as made by the
compliance officer offered for Region 23, and by agreement made as to particular
amounts which might be due by counsel at the hearing, that the obligation of the
Respondent to make whole the employees under the Board Order and court decree
will be discharged by payment of the amounts noted above opposite the name of
each individual.
2 In support of its position, and in accordance with the above-quoted offer of proof, the
Respondent called R. W. Tonnessen, production superintendent, Gertrude Andrus, secre-
tary, personnel office of the Company, and Hal Rachal, president and counsel.
The testimony of these three witnesses was taken to permit the Respondent to support
its position that it is entitled to credit their backpay computed on the basis that the Com-
pany, under established practices, policies and economic necessity, varied the length of
the workweek. No evidence was adduced on behalf of the, Respondent to show interim-,
earnings of any individual claiming a right to backpay.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
I recommend that each of the above -named strikers or former strikers , employees,
,or former employees, of the Respondent , be paid the amounts set forth opposite each
:name and that my determination herein constitute an adjudication that the Respond-
,ent be discharged from further liability for backpay upon written proof of payment
made to the Regional Director for Region 23 in the amounts shown above in the total
amount of $ 10,267.96 , proof to be furnished according to the manner prescribed by
the Regional Director . An adjudication now having been made of the entire amount
of the Respondent 's indebtedness , it is proper , and not inconsistent with the Order of
the Board and the decree of the court , that the indebtedness bear interest at 6 per-
^cent per annum from the date of this adjudication until paid , and I so recommend.
.Isis Plumbing & Heating Co., 138 NLRB 716.
U.S. Perlite Corp. and Richard E. Merrill . Case No. 13-CA-5989.
September 16, 1964
DECISION AND ORDER
On May 20, 1964, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain.-unfair labor prac-
tices within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, U.S.
Perlite Corp., its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.'
'The first indented paragraph of the Appendix (notice ) attached to the Trial Exam-
iner's Decision is hereby deleted.
The following paragraph shall be added as the third substantive paragraph of the
Appendix:
All our employees are free to become, remain , or refrain from becoming or remain-
ing, members of the Independent Workers Union of America , or any other labor
,organization , except to the extent that right may be affected by an agreement re-
,quiring membership in a labor organization as a condition of continued employment,
as authorized in Section 8(a) (3) of the Act, as amended.
148 NLRB No- 111.