Robertshaw Controls Co.

National Labor Relations Board - Board Decisions

Oct 19, 1966

161 N.L.R.B. 103 (N.L.R.B. 1966)

ROBERTSHAW CONTROLS COMPANY 103 but excluding office clerical employees machine tenders inspectors store room men, laboratory technicians technical and professional employees guards watchmen and supervisors as defined in the Act CERTAIN TEED PRODUCTS CORPORATION Employer Dated------------------- By-------------------------------------------(Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered defaced or covered by any other material If employees have any questions concerning this notice or compliance with its provisions they may communicate directly with the Board s Regional Office, Sixth Floor Meacham Building 110 West Fifth Street Fort Worth Texas 76101 Tele phone 335-4211, Extension 2145 Robertshaw Controls Company , Acro Division and International Union, United Automobile , Aerospace and Agricultural Imple ment Workers of America, UAW-AFL-CIO Robertshaw Controls Company , Acro Division and International Union, United Automobile , Aerospace and Agricultural Imple ment Workers of America, UAW-AFL-CIO, Petitioner Cases 9-CA-3606 and 9-AC-1 October 19, 1966 DECISION AND ORDER On January 11, 1966, Trial Examiner Thomas A Ricci 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 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal thereof Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner 's Decision, and briefs in support of their exceptions The Respondent filed cross exceptions with a supporting brief The Charging Party filed a reply brief to the Respondent's cross exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three member panel [Chairman McCulloch and Members Jenkins and Zagoria] 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, cross exceptions and briefs, and 161 NLRB No 2 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record in these cases, and hereby adopts the findings, con elusions, and recommendations of the Trial Examiner, with the exceptions stated below 1 1 The complaint alleged that the Respondent violated Section 8(a) (1) because of certain acts and statements by its officials and supervisors The Trial Examiner made no findings with respect to these allegations On the record before us, we find the following con- duct violative of Section 8 (a) (1) of the Act. On April 28, 1964, employee Cartwright was informed by General Manager Bruce that his transfer to the Grove City plant had been canceled because the Union had filed charges against the Company On May 7, after Cartwright had been transferred to a lower paying job in the Hillsboro plant, he was told that he "got just exactly what you asked for when the charges were filed akamst the Company " On April 30, 1965, employee Cordell Hull was told by his foreman, Ted Hilterbran, that no one was going to be transferred to the Grove City plant "because of the union " In the latter part of April, Personnel Manager Clark told employee Countryman that " he wasn't going to take the UAW to Grove City with him let's not kid ourselves, we are not taking it with us " Employee Bessie Shaw was told by Clark at the time she was note fled that she would not be transferred to Grove City, that the reason for the cancellation was the fact that the "Union had throwed a monkey wrench in the works " Employee Wendell Thompson was told that his transfer had been canceled because "some charges had been filed against the Company by the Union " And employee Clifford Fryman was told that his transfer was canceled because the Company had been hit with labor charges Clark testified that these employees were told that there would be no transfer because "a pets tion had been filed" The above statements by the Respondent's officials and supervisors clearly interfered with, restrained, and coerced the employees in their adherence to the Union It may be, as the Respondent asserts, that in those instances where reference is made to "charges" that the Respondent's officials intended to refer to the petition and not the unfair labor practice charge filed by the Union The employees, how 1 On January 10 1966 the General Counsel filed a motion with the Trial Examiner to sever Can 9-AC-1 from Case 9-CA-8606 and remand it to the Regional Director for such action as may be appropriate In his motion the General Counsel stated that petitions had been filed seeking an election in a unit of the same employees involved in Case 9-AC-1 that the Petitioner in Case 9-AC-1 had requested permission to withdraw its Petition for Amendment of Certification and that the Employer had no objection to the withdrawal On January 11 1966 the Trial Examiner issued his Decision and on the same day issued an Order referring the General Counsel s motion to the Board On January 12 1966 the Board granted the General Counsel s motion We therefore do not pass upon the Trial Examiner s holding in his Decision that the Petition for Amendment of Certification should be dismissed ROBERTSIIAW CONTROLS COMPANY 105 ever, were in no position to know the motivation of the Employer's officials other than what they had been told Thus, the effect on their exercise of their statutory rights remained the same regardless of what the Respondent's undisclosed motive might be Moreover, even if the Respondent had told the employees that it was because of the filing of the petition, as Clark contended he had done, we would still, as we show below, find the Respondent's conduct to constitute an invasion of the employees' rights under the Act 2 The Trial Examiner found that the Respondent had not violated Section 8(a) (1) and (3) by refusing to honor its promise to 10 of its employees that they would be transferred to the Grove City plant. The Trial Examiner based his conclusion on his finding that the Respondent's sole motivation for refusing to transfer the employees was the filing of the petition to amend the certification to include the Grove City plant in the Union's certification of the unit at Hills- boro and that the refusal to hire the employees was therefore not dis- criminatory within the meaning of the Act We agree with the Trial Examiner that the Respondent's refusal to hire the employees was motivated by the filing of the petition by the Union, but do not agree that a refusal for this reason is not violative of the Act. As we have found above, one of Personnel Manager Clark's anti- union remarks violative of the Act was his declaration to employee Countryman that "he wasn't going to take the UAW to Grove City with him let's not kid ourselves, we are not taking it with us The Trial Examiner characterized this "as the underlying concern which motivated the Company throughout these events " We agree with this conclusion but, as we show below, the Respondent could not lawfully thus refuse to hire members of the Union at its Grove City plant in order to forestall the accretion of that plant to the Hillsboro plant unit It is now well established that one of several factors pertinent to determining whether a new plant constitutes a separate unit or an accretion to an already existing plant unit is the extent to which the employer has transferred employees from the existing plant to the new plant 2 If upon consideration of the relevant factors the new plant is found to be such an accretion, the two plants are deemed to constitute a single appropriate bargaining unit, and the union which is representative of the existing unit may thus be entitled to extend its- representation to all the employees in the unit as enlarged by the accretion It was obviously this latter aspect of the accretion principle and the consequent possibility of representation by the Union at A Haddon Bindery Incorporated 101 NLRB 1357 1359 Bulova Research at}d Develop meat Laboratories Inc 110 NLRB 1086 1039-41 Hess Goldsmith tt Company Inc 110 NLRB 1384 1387 Radio Corporation of Am¢rica 127 NLRB 1568 1565-66 South Baal Coal Company 188 NLRB 562 563 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grove City that Personnel Manager Clark had in mind when he exclaimed to Countryman, an applicant to whom Respondent offered employment at the new plant, that Respondent " wasn't going to take the UAW to Grove City", and, clearly, it was like considerations of opposition to possible representation by the Union at Grove City that motivated Respondent's antagonism to the Union's attempt to assert accretion of the new plant to its existing unit, a motivation which found its expression in the rescission of promised employment at Grove City to 10 employees from Hillsboro The Respondent, of course, had no obligation to assist the Union in its effort to gain representation at the Grove City plant But on the other hand it was not privileged to discriminate against any employee in respect to employment at Grove City in pursuit of its effort to forestall repre- sentation by the 'Union at the plant In particular the 10 Hillsboro employees whose applications for Grove City employment the Respondent had accepted were entitled to Respondent' s continued consideration on the same nondiscriminatory basis as any other appli- cants for such employment As the Respondent, by rescinding its promises of Grove City employment to these employees, did thus dig criminate against them, we find that it thereby violated Section 8(a) (1) and (3) of the Act 3 Moreover, even were there no independent evidence of an intent to interfere with the rights of the employees, we would find the Respond ent's conduct violative of the Act The 10 employees who had been promised employment at the Grove City plant would admittedly have obtained such employment had their Union not filed the petition to amend the certification To deny them employment for this reason necessarily tended to discourage their adherence to and activity in the Union, for the employees could only conclude from this example that any conduct of their Union sufficiently provocative of the Respondent's displeasure might likewise result in unfavorable reper cussions in their right to employment Even if the Respondent was motivated in part by a fear that the transfers might be asserted to constitute a violation of its current contract with the Union if the petition proved to be well founded, this would not constitute a defense because its conduct was, we find, inherently discriminatory 4 We there fore find that by such conduct the Respondent violated Section 8(a) (1) and (3) of the Act 6 3 Prior to receiving assignments, the 10 employees selected for employment at the Grove City plant were required to sign a "waiver " a Cf Druwhit Metal Products Company 153 NLRB 346 Palestine Telephone Company 154 NLRB 1325 4 N L R B v Erie Resistor Corp 373 U S 221 5 The Respondent a conduct in relation to these 10 employees was in the same legal posture as its cancellation of the promised transfer at Hillsboro to employee Kathleen Lewis which the Trial Examiner found to be a violation of Sectl6h 8(a) (3) of the Act ROBERTSHAW CONTROLS COMPANY 107 The "waiver," about which the Union was not consulted, requested that the employee be laid off prior to less senior employees at Hills- boro and waived any and all seniority rights granted under the Hills boro contract for purposes of such layoff The Trial Examiner found that the purpose of the waiver was to protect the Respondent from the possibility of union charges that the Respondent was making lay offs in a manner violative of the contract He further found that the waiver related to conditions of employment at Grove City and not at Hillsboro and that Respondent had no obligation to bargain in this respect with the Hillsboro representative He therefore recom- mended dismissal of the complaint's allegation that this conduct con stituted a violation of Section 8(a) (1) and (5) of the Act We do not agree with the Trial Examiner that the waiver signed by the 10 employees related only to conditions of employment at the Grove City plant Seniority rights at the Hillsboro plant were, of course, a condition of employment by -virtue of a contract which had been negotiated between the Respondent and the Union The waivers related specifically to the seniority rights of the employees under that contract These rights were as much a subject of negotiations with the employees' collective bargaining agent at the time Respond ent sought waivers of such rights as they had been at the time of the negotiations for the collective bargaining contract the previous year Accordingly, we find that Respondent, by failing to consult with the Union and by dellmg directly with Hillsboro employees concern mg waivers of seniority rights under the Hillsboro contract, violated Section 8(a) (1) and (5) of the Act a 4 In his Decision the Trial Examiner found that the Respondent violated Section 8(a) (5) of the Act by refusing to supply Grievance Chairlady Wright with the forms it was requiring laid off employees to sign in order to return to work It is not clear from his Decision whether the Trial Examiner had reference to the refusal to bargain v ith Chairlady Wright on May 26, 1965, is set forth in paragraph 10(b) and (c) of the amended complaint, or to the refusal to bargain as to the recall of employees on August 18, 1965, as specified in para- graph 10(d) of the amended complaint In any event, as we show below, the Respondent violated Section 8 (a) (5) on both occasions As we have discussed above, the Respondent required these employ ces scheduled for transfer to the Grove City plant to sign waivers of their senior ity rights it the Hillsboro plant Thereafter, this require ment was brought to the attention of Barbara Wright, chairlady of the Union's grievance committee She called the union representative E Smith a Van & Transport Company Inc 126 NLRB 1059 1061 Cooke & Jones Inc 146 NLRB 1664 1675 enfd 339 F 2d 580 ( C A 1) Wonder State Manu facturing Com pany 151 NLRB 904 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was told that she should obtain a copy of the waiver She con tacted Personnel Director Clark on gay 26 and requested a copy of the waiver Clark told her that the waiver did not concern the Union gnd that "it's none of your business " As we have pointed out, the waiver concerned the seniority rights of the Hillsboro employees and as such was a bargamable matter The requested information was therefore relevant to the Union's per formance of its obligations as statutory representative of the Respondent's employees Nor need the Union follow the contractual grievance procedure in order to obtain such information, as suggested by the Respondent, for it is only by the obtaining of such information that the Union can determine whether the filing of a grievance would be justified 7 We therefore find that the Respondent's refusal to sup ply the requested information was violative of Section 8(a) (1) and (5) of the Act In August 1965, the Respondent began the expansion of the assem bly operations which remained at Hillsboro Among the employees hired were employees who had been laid off when the fabricating operation was transferred to Grove City Before the laid off employ ees were permitted to work, they were required to sign a "request" that they be recalled on a temporary transfer basis Under the- collective bargaining contract, an employee transferred "at the Coin pany's direction" would be paid at either the pay he was receiving on his old job or the pay on the new job, whichever was higher When the transfer was at the employee's "request," however, the employee was to receive the lower of the two rates On August 18, 1965, at a grievance committee meeting, Cecil Hampton, the Union's business representative, asked Clark to nego tiate with respect to the procedure to be used in the recall of the laid off employees Clark refused, stating that the procedure was already covered in the contract Hampton replied that the relocation of part of the plant was a special situation not covered by the con tract Clark categorically refused to negotiate The recall of laid off employees is, of course, a bargainable matter It is also obvious that the provisions of the contract pertaining to the transfer of employees were not drawn to cover mass layoffs resulting from the relocation of a substantial portion of the plant's operation The Respondent was, therefore, under a duty to bargain with respect to the recall procedure, and its refusal to do so was violative of Sec- tion 8(a) (5) and (1) of the Act 7 Goodyear 4erospaee Corporation 157 NLRB 498 Curtiss Wright Corporation 145 NLRB 152 enfd 847 F 2d 61 (C A 3) ROBERTSHAW CONTROLS COMPANY THE REMEDY 109 Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom, and from like or related conduct, and that it take certain affirmative action to effectuate the policies of the Act Having found, contrary to the Trial Examiner, that the Respond- ent violated Section 8(a) (3) and (1) of the Act, by refusing to hire Anna Baldridge, Richard Cartwright, Charles Countryman, Clifford Fryman, Cordell Hull, Genevieve Jeffries, Lowell Morgan, Nellie Price, Bessie Shaw, and Wendell Thompson , because of their union affiliation , we will order that they be given employment at the Respondent's Grove City plant and that they be made whole for the losses suffered by them as a result of the Respondent 's discriminatory action Backpay is to be computed and paid in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, as set forth in 1828 Plumbing & Heatvng Co, 138 NLRB 716 Apart from the foregoing we shall otherwise adopt the section set forth in the Trial Examiner 's Decision entitled "The Remedy " CONCLUSIONS OF LAW 1 The Respondent is an employer within the meaning of Section 2(2) of the Act 2 The Union is a labor organization within the meaning of Sec- tion 2(5) of the Act 3 All production and maintenance employees , including truck- drivers, employed at the Respondent's plant at Hillsboro, Ohio, but excluding timekeepers, laboratory technicians , office clerical employ- ees, and all guards, professional employees , and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act 4 International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW AFL CIO, is and has at all times material to this case been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 5 By bargaining with the 10 individual employees and requiring them to sign waivers of their seniority rights at the Hillsboro plant without prior consultation with their statutory bargaining represent ative in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6 By refusing to give the Union a copy of the waiver it required Hillsboro employees scheduled for transfer to the Grove City plant to sign , the Respondent has engaged in and is engaging in an unfair labor practice within the me' wing of Section 8(a) (5) of the Act 7 By refusing to bargain in August 1965 with the statutory bar gaining representative regarding the transfer of employees at the Hillsboro plant, the Respondent has engaged in and is engaging in un fair labor practices within the meaning of Section 8 (a) (5) of the Act 8 By refusing to hire Anna Baldridge , Richard Cartwright, Charles Countryman , Clifford Fryman, Cordell Hull , Genevieve Jef fries, Lowell Morgan , Nellie Price, Bessie Shaw, and Wendell Thompson at its Grove City plant because of the Union 's filing of a petition with the Board , the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a) (3) of the Act 9 By asserting that employees had lost employment opportunities because of their union membership of activities , the Respondent has engaged in and is engaging in unfan labor practices within the mean ing of Section 8 (a) (1) of the Act 10 By refusing to employ Kathleen Lewis on May 25, 1965, and Beulah Wilson on September 14, 1965 , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (3) of the Act 11 By the foregoing conduct , the Respondent has interfered with, restrained , and coerced employees in their rights guaranteed in Sec tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 12 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Robertshaw Controls Company, Acro Division, Hillsboro, Ohio, its officers , agents, successors , and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively with International Union, United Automobile , Aerospace and Agricultural Implement Work c,rs of America , UAW-AFL-CIO, as the exclusive representative of all employees in the appropriate unit, with respect to rates of pay, wages, hours of employment , and other conditions of employment (b) Discouraging membership in the aforesaid Union, or any other labor organization of its employees, by discriminatorily refusing to ROBERTSHAW CONTROLS COMPANY 111 employ, or in any other manner discrimintitmg against, any employee in regard to hire, tenure, or any term or condition of employment (c) Asserting that employees have lost employment opportunities because of their union memberships or activities (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Ttke the following 'ifirmative action which we find will effec tuate the policies of the Act (a) Upon request, bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive representative of all employees in the above described appropriate unit (b) Offer to Anna Baldridge, Richard Cartwright, Charles Coun tyman, Clifford Fryman, Cordell Hull, Genevieve Jeffries, Lowell Morgan, Nellie Price, Bessie Shaw, and Wendell Thompson, employ ment at the Grove City plant at a wage scale and with the same seniority and other rights as if they had been hired at the Grove City plant after they made application for employment, and make each of them whole as provided for in "The Remedy" section of this Decision (c) Offer Kathleen Lewis and Beulah Wilson immediate and full reinstatement to the positions they would have had but for the Re spondent's unlawful discrimination igamst them, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set out under "The Remedy" section of the Trial Examiner's Decision (d) Notify the above named employees if presently serving in the Armed Forces of the United States of their right to full reinstate ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and other data necessary to give effect to the backpay requirement. (f) Post at its plant in Hillsboro, Ohio, copies of the attached notice marked "Appendix " 8 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by the Company's representative, shall be posted by the Company imme diately upon receipt thereof, and be maintained by it for 60 consecu tive days thereafter, in conspicuous places, including all places where s In the event that this Order is enforced by a decree of a United States Court of Appeals there shall be substituted for the words a Decision and Order the words a Decree of the United States Court of Appeals Enforcing an Order 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices to employees are customarily posted in their respective plants Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of Section 8(a) (5) and (1) not found herein APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that Wie will, NOT refuse to bargain collectively with International Union, United Automobile , Aerospace and Agricultural Imple- ment Workers of America , UAW-AFL-CIO, as the exclusive bargaining representative of all employees in the appropriate bargaining unit described below WE WILL NOT discourage membership by any of our employees in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, or in any other labor organization , by refusing to employ or otherwise discriminating against employees in regard to their hire or tenure of employment or any other term or condition of employment WE WILL NOT state that work opportunties have been lost because of employees' interest in or affiliation with the above- named Union or any other union WE WILL NOT in any other manner interfere 'with , restrain, or coerce our employees in the exercise of their rights to self- organization, to form, loin, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection , or to refrain from any or all such activity WE wmL, upon request, bargain collectively with said Union as the exclusive representative of all employees in the bargaining unit described The bargaining unit is All production and maintenance employees employed at our Hillsboro , Ohio, plant, including truckdrivers , but excluding timekeepers , laboratory technicians , office clerical employees, and supervisors as defined in the Act ROBERTSHAW CONTROLS COMPANY 113 WE WILL offer to the following employees employment at the Grove City plant at a wage scale and with the same seniority and other rights as if they had been hired at the Grove City plant after they made application for employment, and make them whole for any loss of pay suffered as a result of the discrimina tion against them Anna Baldridge Genevieve Jeffries Richard Cartwright Lowell Morgan Charles Countryman Nellie Price Clifford Fryman Bessie Shaw Cordell Hull Wendell Thompson WE WILL offer Kathleen Lewis and Beulah Wilson immediate and full reinstatement to positions they would have had but for the Respondent's unlawful discrimination, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner described in the Trail Examiner's Decision WE WILL notify the above named employees, if presently serv ing in the Armed Forces of the United States of their right to employment upon application in tecordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after their discharge from the Armed Forces All our employees sire free to become or i emviln, or to refrain from becoming or remaining, members of the aboi e named Union or any other union ROBERTSHAW CONTROLS COMPANY, ACRD DIVISION, Employer Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compli ance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627 TRIAL EXAMINERS DECISION AND RECOMMENDATION ON MOTION STATEMENT OF THE CASE A hearing in the above entitled proceedings was held before Trial Examiner Thomas A Ricci at Hillsboro Ohio on October 13, 14 15 25 , and 26 1965 264-188-67-vol 161-9 114 DECISIONS ' OF- NATIONAL LABOR RELATIONS BOARD Evidence was received with respect to a complaint issued by the General Counsel on July 30, 1965, against Robertshaw Controls Company, Acro Division, herein called the Respondent, the Company, or the Employer (Case 9-CA-3606). Testi- mony-was also received concerning a question raised by a unit amendment petition filed by International Union, United .Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, herein called the Union, the UAW, or the Petitioner (Case 9-AC-1). The issues litigated pursuant to the complaint case are whether the Respondent violated Section 8(a)(3) and (5) of the Act. The question investigated pursuant to the AC petition is whether certain employees working in a new plant recently established by the Respondent in Grove City, Ohio, should appropriately be deemed included in the bargaining unit for which the Union was certified by the Board on October 31,, 1962, expressly limited to the Respondent's Hillsboro plant. All parties, the General Counsel, the Company, and the Union participated in the hearing. Biiefs were filed by all three of the parties.' Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Respondent, a Delaware corporation, is engaged in the manufacture of precision electrical switches and relays at its manufacturing plants located at Hillsboro and Grove City, Ohio. During, the past year, a representative period, it had a direct outflow of goods and products valued in excess of $50,000 which was shipped directly from its plants to points outside the State of Ohio I find that the Employer is engaged in commerce within the meaning of the Act 'and that it will effectuate the policies of the Act to exercise jurisdiction herein. If. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Basic facts This entire case-complaint and motion to amend an outstanding Board certi- fication-stems directly from a change in production methods long planned by the Company, definitively programed by February of 1965, and put in effect on about May 1. For some years the Company manufactured and assembled its products-electrical switches and relays-in the Hillsboro plant; here there were fabrication machines, such as drill presses, turret lathes, etc., and a number of assembly lines. On petition of the UAW the Board conducted an election among the hourly rated production and maintenance employees of Hillsboro in 1962 and certified this Union as their exclusive bargaining agent later the same year. The parties bargained and signed a contract on July 13, 1964, its recognition clause consistent with the appropriate unit description which had governed the election. Early in 1965, the Company completed erection of a new building at Grove City, Ohio, a suburb of Columbus, the installation about 65 miles from Hillsboro. Into this structure the Company moved certain operations which had long been per- formed in a Main Street location in Columbus, subsequently abandoned, these included executive, marketing, office, engineering, and product development facili- ties. The Respondent also moved to Grove City all the fabrication-or parts pro- duction as distinguished from assembly work-which had been going on in Hills- boro. It transferred virtually all of the presses and other fabrication equipment 'The petition in Case 9-AC-1 was originally filed with the Regional Director for Region 9 on May 10, 1965, in accordance with the Board's Rules and Regulations. Upon investigation the Regional Director found no merit in the Union's request for amendment of its outstanding certification. The Union appealed this determination to the Board, which, on September 1, 1965, granted the request for review and directed a hearing on the peti- tion. In its order the'Board stated that such hearing "may be consolidated with any hear- ing on complaint issued in Case No. 9-CA-3606." Pursuant to that order the Regional Direc- tor on September 8 consolidated the two proceedings for a single hearing. ROBERTSHAW CONTROLS COMPANY 115 from the old to the new plant about 20 large units and added a few others In consequence a great many jobs were abolished at Hillsboro and by the middle of May over 100 employees had been laid off Several months before the actual changeover and at the request of the Union company representatives met with union officials in several sessions to discuss the mechanics of the imminent selective discharge of so large a number of workers Both parties were aware that absent some new arrangement the terms of the existing contract would have to be applied with the result that a number of persons holding long company seniority would lose their jobs while others more recently hired would remain the contract explicitly established only departmental or job classification seniority for the purpose of economic layoff or for recall For reasons sufficient to themselves the representatives of the Union and of the Company tentively agreed upon a reduction in force formula at variance from the contract one which would favor older employees and prejudice certain newer ones In the end there was no agreement on how to alter the contract a provisional suggestion even submitted to a vote at a union meeting and rejected When it came time to release people the Respondent acted strictly in keeping with the contract both as to the timing and with respect to individual selection While this was going on the Company invited all its Hillsboro personnel to visit the new plant and apply for jobs there if they wished Many went to Grove City and about 31 filed written requests for employment by the end of April The Com pany selected some apparently those deemed more skilled or otherwise more desirable and even told seven or eight before the 1st of May the precise date when they should report for duty at the new location It was at this point-on April 28 to be exact-that the UAW took its first step aimed at bringing the fabrication activities at the Grove City plant within both the scope of its 1962 Hillsboro certification and the coverage of its current collective bargaining agreement 2 The Company s immediate reaction was to defer the hiring at Grove City of any employees from the Hillsboro plant it disagreed with the Union s contention that the certification and the contract followed the fabrication operations in the circumstances of this case and it chose to await the outcome of whatever proceedings there might be via the Board before hiring at the new plant in a manner that might later retroactively constitute a violation of contractual obligations Instructions already given to the several employees to start work at Grove City were canceled and instead they were laid off pursuant to the Hillsboro contract in the course of the economic reduction in force B The issues presented For reasons that will appear below this case cannot be reported or discussed in the literal wording of the complaint The critical allegations of wrongdoing con flict both with one another and with the unfair labor practice conclusions requested by the General Counsel in his brief Moreover although there is no real dispute as to the truly significant facts which gave rise to the entire proceeding the coin plaint is cast in a mold at variance with the format of events The resultant confu sion is perhaps explained by the unprecedented consolidation of a complaint case with what is essentially an appropriate unit investigation-the petition to amend the certification If the questions in issue are to be logically comprehensible they must be stated clearly and only in terms of what this case is really about The principal allegation of the complaint is that when the Respondent departed from its announced decision to hire certain Hillsboro employees at Grove City in consequence of the Union s attempt to have the new fabrication operations declared an integral part of the bargaining unit represented by the Union it illegally dis cnminated against them because of their union activities and thereby violated Section 8(a)(3) of the Act Simply stated the theory is that the Union had a right to bring its contention to the Board that this was literally `union activity on behalf of those employees and that the Respondents purpose in refusing to hire them while they were engaged in this pursuit was to discourage concerted union activities as defined in Section 7 of the statute 2 By letter dated April 28 the Union mailed to the Regional Director of Region 9 in Cincinnati a document entitled Motion to Amend Certification A copy of this letter with enclosure was also sent to the Company on that day The Regional Director then advised the Union of the revised Rules and Regulations of the Board whereby such matters are treated by way of petition and forwarded such a form document for execution The Union thereafter formally filed the petition in Case 9-AC-1 on May 10 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In defense the Respondent answers that it had an equal right to insist that the new plant stood apart from the Hillsboro certification or contract that it could only hire the selected employees from Hillsboro on the basis it had established if the terms of the contract did not control conditions of employment at Grove City and that therefore the Unions separate insistence that the two operations were virtually one and the same cast such a cloud on the program of hiring that the Company was carrying out as to justify maintenance of the status quo until the regular procedures of the Board could determine the basic dispute It denies any intention to discourage union membership or activity The assertion that employees were denied work at Grove City at that time because of the motion or petition to amend the certification is conceded by the Company A second allegation of the complaint is that when recalling some of the laid off fabrication department employees-to fill the growing need of the expanding assembly operation in Hillsboro-the Respondent refused to discuss the terms of their rehire with union agents and thereby refused to bargain in violation of Section 8(a)(5) of the Act To this charge the Company responds with the asser tion that all it did was recall employees-for whatever periods they were needed- again in strict accordance with the transfer and recall provisions of the contract it also denies having refused to discuss these matters with union agents upon request A final charge-added to the complaint by amendment at the start of the hearing- is that the Company discriminated against two employees in denying them jobs at the Hillsboro plant. C Caveat Complaint Proceeding-Representation Case The joinder of these two proceedings-complaint against the Company and motion to amend certification by the Union-into a consolidated hearing requires clarification at the outset of the relationship or absence of a relationship between the two Indeed clear understanding of the unfair labor practice issues requires that certain pervasive and basic facts be stated unequivocally lest the very prox imity of the two proceedings lead to error There is no claim or evidence that the decision to move the fabrication opera tions to Grove City rested on any consideration other than purely economic fac tors Instead the record shows affirmatively that the change was made to satisfy the need for more electric power a greater and perhaps more skilled labor supply increased physical accommodations for expected growth in the volume of business and improved centralized efficiency generally There is likewise no contention that the Respondent failed in any statutory duty to discuss this move-which eliminated the jobs of so large a segment of the unit employees-with their bargaining agent at Hillsboro 3 To the contrary when the Union wanted to talk about it management not only explained what was in the offing but came forth with positive proposals respecting the manner in which the layoff might be put in effect fairly These matters were discussed at length and absent agreement on how to arrange things to everyone s satisfaction the Company faithfully adhered to the terms of the contract in effect More important the Company was under no obligation either with respect to the UAW's representative on contract rights or under the statute to prefer or to hire at all the Hillsboro employees So far as this complaint is concerned the Grove City plant is simply another operation of the Company having no relationship whatever with Hillsboro Had the Company never invited these persons to visit the new location and to file job applications if they wished or having received applications had it rejected them all summarily as undesirable there there could have been no suggestion of wrongdoing under the General Counsels theory of the unfair labor practice case All refusal to bargain allegations of the complaint are tied to its appropriate unit description limited to the Hillsboro plant Paragraph 8 of the complaint describes the unit underlying the allegation of Section 8(a)(5) violations as all production and maintenance employees including truckdrivers employed at Respondents Hillsboro Ohio plant but excluding 8 From the transcript T&IAL EzAMINSH Is there any allegation that they-the move of part of this plant to Columbus was a violation of the Act without prior consultation with the Union 9 Mr LoosoON No ROBERT-BHAW CONTROLS COMPANY 117 Paragraph 10(a) then reads Respondent has refused to bargain col lectively in good faith with the Charging Party by unilaterally negotiating directly with its employees in the unit described in Paragraph 8 above concerning hire at Respondent's Grove City Ohio plant [Emphasis supplied I Read together these pleadings presuppose the Respondents statutory duty to deal with the UAW before hiring Hillsboro employees at Grove City a proposition precluded by both paragraph 8 and by the fact the Unions outstanding certification as of this moment is strictly limited to terms and conditions of employment at Hillsboro This is a necessary caveat for some of the contentions to be considered below As the hearing progressed evidence was received essentially from the Union intended to show that Grove City fabrication is really half of the old Hillsboro plant moved over a bit as it were And of course if this, is true it would follow necessarily and immediately that the collective bargaining agreement also applied to the Grove City production jobs to state this proposition is also to say that the Company was therefore required to transfer all the Hillsboro employees to Grove City before hiring anyone in their place and to pay them in accordance with the UAW contract wage scale Had the hearings not been a consolidated one-with evidence taken simultaneously upon the petition in Case 9-AC-1 the Union would have been precluded from introducing this evidence for such extension of the bargaining unit spelled out in the complaint conflicts directly with its basic allega tions and the Union-as a charging party-may not expand the scope of the unfair labor practices alleged without approval of the General Counsel It was only as Petitioner in Case 9-AC-1 that it properly advanced this evidence The request to amend the certification may or may not have merit that question must necessarily be decided hereafter If the Union should prevail that determina tion can have no retroactive affect upon the strength or weakness of the record in support of the complaint As the case stands consideration of the charges of wrong doing by the Company must proceed on the assumption that the motion to amend is invalid as the Regional Director found before the matter was appealed to the Board It is his complaint and he issued it before the Board ruled on the Union s appeal in the AC case Although the Company is charged with having refused Hillsboro personnel employment at the new plant an essential allegation of the complaint against it is that it had promised to do so and reneged The Respondent stands therefore vir tually in the same posture as any employer charged with denying a job applicant because he is prounion or not a member in good standing or represented by a labor organization seeking to vindicate a legal position by resort to the Board s process D Alleged group violation of Section 8(a) (3) The Respondent admits that it promised work at Grove City to six employees named in the complaint and then refused to employ them because of the filing of the unit amendment petition These are Cliff Fryman Bessie Shaw Wendell Thompson Cordell Hull Charles Countryman and Lowell Morgan Richard Cart right testified without contradiction he was told by Bunce general manager to report at Grove City in mid May but the instructions were then countermanded by Bunce himself I credit Cartright In addition three other employees-Puce Jeffries and Baldndge-also testified they filed applications but none of these said what had become of the request or that they had been selected for the new plant There is indirect testimony about their speaking to management representatives after the events in complaint about not going to Grove City and being told gen erally about the Company s reaction to what the Union was attempting to do For purposes of this Decision there is no need to resolve definitely whether they too were in fact promised jobs were it necessary I would find on the total record that they were All seven of these employees were laid off during approximately the following month as their respective jobs were transferred to the new plant As stated above and as appears clearly from the record of hearing it is the failure of the Com pany to permit them to start work at Grove City on the very days each had been told to go there that constitutes the alleged illegal discrimination in employment In contrast the complaint literally charges that the Company discharged these persons during specific days in May or June because of activities of the charg mg party This is imprecise pleading for the layoff had nothing to do with other events moreover the jobs promised for earlier dates but never given in Grove City 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carried higher wage rates , so that the discrimination in fact occurred the moment that work was denied them, regardless of whatever may have thereafter happened ,in Hillsboro. The real issue presented is whether on the entire record it must be said that the refusal at that moment to bring these employees to Grove City was an unfair labor practice. The question is somewhat obscured by the fact that on the very day it first attempted to extend its certification, and contract, to Grove City, the Union also filed a direct unfair labor practice charge against the Company. For some- time, Clark, personnel director of the Respondent, and Fryman, chairman of the grievance committee, had disputed Fryman's desire to handle grievances in groups, rather than singly, the personnel director preferring to treat each separately. Fry- man felt the arrangement, although consistent with the contract, infringed too greatly upon his time and cast an undue burden upon the Union. The various pending grievances which gave rise to this disagreement had nothing to do with the matter of moving fabrication to the new plant, and it does not appear that the two problems bore any relationship whatever When Hampton, UAW representa- tive, mailed his "notice for amendment of certification" to the Regional Director on April 28, he included in the same envelope a charge against the Company alleg- ing that its refusal to process grievances in groups constituted a refusal to bargain in violation of Section 8(a)(5) of the Act4 The envelope which Hampton that same day mailed to the Company therefore included not only a copy of his motion to amend, but also a carbon copy of the charge he filed. Clearly, therefore, when on April 30 the Respondent first learned of the Union's desire to extend certifica- tion and contract to Grove City, it also became aware for the first time of this unfair labor practice charge. The fact of the Respondent having at that critical moment learned of both the charge and motion to amend, became the predicate for the complaint allegation that the employees were that very day denied employment at the new plant "because the Charging Party has filed a Petition for Amendment of Certification and/or unfair labor practice charges involving the Respondent." During the hearing the General Counsel merged these two facts-motion to amend and charge-as the motivating cause for the Respondent's change of heart that day. In support he also relies upon the testimony of several witnesses that when company agents told them not to report as previously directed they spoke of "charges,' having been filed. If in fact the Respondent refused to employ people at the Grove City plant literally because the Union had filed unfair labor practice charges, a somewhat different question would be presented, for concern by an employer arising from an attempt to expand a bar- gaining unit without an election is different in kind from resentment based upon employee resort to the Board's process to vindicate their statutory rights. The General Counsel's brief is strangely silent on this entire subject of the Union's petition to amend certification. Despite the occasional references to the word "charge" or "charges," placed in the mouths of supervisors by a few of the employee witnesses, the record makes clear above all that what all of the actors to the events had in mind was this question of whether the Union had a right to con- cern itself with how the Company wished to "transfer" Hillsboro people to the new plant. With the complaint specifically saying the Respondent refused to hire people there "because" of the petition, and thereby violated the statute, and the record making it clear this matter was uppermost in the minds of both employees and management, the General Counsel's utter silence on the entire subject gives his brief an eerie quality, as though it were detached from reality. Possibly the General Counsel has abandoned the allegation of wrongdoing on this ground, and now shuns the thought an employer may not defer hiring in circumstances such as these. When counsel for the Respondent, in a pretrial motion for particulars, asked to be told whether the asserted wrongdoings stemmed from reaction over the unfair labor practice charge or over the motion to amend, the General Counsel in his response refused to explicate. In any event, the allegation appears in the complaint, the record shows this to be the essential question presented, and it must therefore be dealt with here. A fair reading of the record testimony in its entirety requires a finding that the Respondent's reason for deferring the hire of Hillsboro employees at the new plant was because of the motion to amend certification, and not a response to the charge * After Investigation the Regional Director refused to issue complaint based on that charge (Case 9-CA-3561), on the ground that it was without merit. On appeal by the Union to the General Counsel in Washington, the Regional Director's decision was sustained. ROBERTSHAW CONTROLS COMPANY 119 simultaneously filed The testimony of the employees as to what they were told at the time is vague and inconsistent in general it is more in keeping with the defense assertion than with the Governments contention pinpointed to the filing of the charge Three employee witnesses said that when told not to report at Grove City the word charge or charges were used According to Thompson He [Clark] said that some charges had been filed against the Company Cartnght testified that when the orders were changed Bunce said the Union has filed charges against the Company under the circumstances I have no alternative but to refuse you employment at Grove City Cartright changed to assembly work at Hillsboro after the mass layoff but at reduced rates and complained to Bunce who told him you got lust exactly what you asked for when the charges were filed against the Company And when Jeffries asked why she was not going to Grove City she was told because the Union had filed charges but she could not recall which supervisor had said this Other witnesses quoted management but without reference to charges Baldridge who was with Jeffries in the incident which Jeffries spoke about at the hearing testi lied that it was either Bunce or Bogengnef who told them there would be a delay and that the reason one of them gave was only you can blame your union Cor dell Hull testified simply that his foreman Hilterbran told him the changed instruc tions had something to do with the Union Similarly employee Lewis as a witness because of the union According to Bessie Shaw the personnel manager told her the Union had throwed a monkey wrench in the works and he couldn t do it right now is his exact words he assured us everybody would be settled in a little while and I would still go to Grove City And Thompson also recalled his foreman saying he would be hired at Grove City if they got this mess straightened out But all of this language about the Union throwing a monkey wrench into the fluid situation and about matters relating to hiring at Grove City requiring straightening out makes sense only in terms of the attempt to extend the Hills boro contract to Grove City if all that the company representatives had in mind was how to process grievances-singly or in groups-these are hardly the words that would be used In fact on this entire business of bringing employees from the old to the new plant the Company dealt with each as an individual taking pains to exclude the UAW as a factor to be considered at all It asked them to sign a certain document-resented by some-expressly to protect itself against the Union The General Counsel even finds fault with the Respondents use of such waivers whereby the Union was bypassed One employee Countryman recalled that when offered employment at the new plant the personnel manager told him he wasn t going to take the UAW to Grove City with hun There can be no question but that this was the underlying concern which motivated the Company throughout these events The testimony of Fryman the chairman of the grievance committee and the most articulate of the General Counsels witnesses is the most revealing of all He started by saying that when Personnel Director Clark called him to the office to cancel the order to report to the new plant Clark said the Union throwed a monkey wrench into the whole works we have got hit with labor charges When Fryman replied he did not understand Clark explained still according to Fryman he said bear with us for a while and he said when this thing gets worked out he said we will get all of the employees up there he said all I got to do is get on this phone and call up Cecil Hampton [UAW International Representative] and give him that damned plant and let him represent the employees at the new plant and he said he will be happy he will drop the charges but he said up until that happens he said which we are not going to do anything unless those charges are lifted I cannot touch you with a 10 foot pole [ Emphasis supplied ] Clark denied having spoken of charges to the employees and asserted he referred only to the petition He testified that to three of them-Fryman Shaw and Lester Thompson-he spoke as follows I told them that a petition had been filed which cast a cloud over their employment at the Columbus plant at the present time how ever for them not to panic that we merely had to find out what our legal position was We didn t know what was going on at this present time and that he would get back with them not to get upset Bunce did not refer to these conversations in his testimony and only one foreman Hilterbran was called he said he told the employ ees only not to go to Grove City In the light of the total testimony of the various employees and of the inherent probabilities of the moment in the total circumstances I credit the testimony of Clark supported by Bogengrief s contemporaneous notes of telephone directions 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given to him at the time that he did not explain the Company s position as based upon the charges but rather upon the attempt by the UAW to enforce its Hillsboro contract at the new plant I also credit Bogengrief the general manager who made the decision that the employees were kept away from Grove City because of the unit amendment request In the inevitable confusion at the time it is possible some minor supervisors may have referred to the amendment motion as a charge but it is clear on the record as a whole that the substance of the explanations given by management was that the unexpected move by the Union to extend its representa tive authority to the new plant was what lay at the bottom of the Company s hesi tancy to move any employees from one location to the other Not only did the charge relating to grievance procedures involve an unrelated matter but other evidence-showing clearly that the Respondents real interest was to treat the Grove City plant as an entity apart from Hillsboro-lends persuasion to the assertion of Bogengrief that the charge was of no importance to him at that time I find that the reason why the Respondent refused to put these employees to work at Grove City was the Union s motion to amend its certificate and that this is essen tially what it told the workers This finding is not impaired by the fact that in subse quent discussions Clark may also have said he was fed up to here with the damned union or that Foreman Hilterbran told an employee when she said she was dis gusted with the Union that she could resign by letter On the record as a whole I also find that by refusing to employ these applicants at its new plant until such time as the unit issue raised by the Union could be resolved by the Board the Respondent did not violate Section 8(a)(3) of the Act The motion to amend certification filed at that moment placed the Company in an impossible position so far as the hiring of these particular employees was con cerned The tentative arrangement was to pay most of them at a higher hourly rate consistent with the scale established for all employees in the Columbus area Moreover they had been selected on the basis of individual skill and experience without regard to their departmental seniority rights under the Hillsboro contract Had the Company not altered its plan of immediate employment for them at Grove City-a decision now called illegal-its action under the view which the Union was seeking via the Board to impose upon it would necessarily have constituted a direct violation of the collective bargaining agreement More the hiring would also have amounted to an illegal refusal to bargain in violation of Section 8(a)(5) of the Act for the agreement to put them to work had been reached unilaterally with the employees and without prior consultation with their Union Insistence that the Grove City plant be viewed as an unrelated operation was not an unreasonable contention by the Company Even assuming that on review the Board should eventually rule that the two plants must be considered the same single plant unit encompassed within the 1962 certification the Regional Director's initial dismissal of the petition in Case 9-AC-1 lends a color of respectability to the Respondents position in April of 1965 The Respondents statement that the April 28 move by the UAW cast a cloud upon the planned hiring of selected Hillsboro personnel at Grove City is therefore not inapt The General Counsels theory of the case rests upon too superficial an argument The filing of the motion was of course union activity in a literal sense if only because the Union did it The Respondent refused to hire the employees because of this union activity Ergo according to the General Counsel this was a dis enmination in employment resulting from union activity and all of those cases showing employer resolve to curb the union activity of employees support a finding of illegal purpose in this instance Such selective reasoning from the many pertinent factors contained in the record cannot alone resolve an unfair labor practice case a This statute is concerned with substance and not words the realities of industrial relations can never be ignored a Not all activities by labor organizations involve 5 Notwithstanding the studied effort in the General Counsel s brief to avoid all reference to the UAW a amendment petition and to the expressed concern which it generated in both union and company representatives the General Counsel relies upon Board decisions deal ing with denial of employment or threats of denial based upon union petitions This is an oblique suggestion that even if Personnel Manager Clark spoke of petition rather than charge the very use of the word-apart from any other consideration-demands a finding of illegal restraint and coercion violative of Section 8(a) (1) of the Act But all of the precedents he cites dealt with petitions whereby employees sought to perfect self organization and to win recognition of their union via a via their direct employer and not judicial construction aimed at geographic expansion of a unit without benefit of election Chariton Pre88 Inc 129 N LRB 1352 ROBERTSHAW CONTROLS COMPANY 121 the statutory rights of employees to join or form a union or to engage in collective bargaining the real purport of Section 7 of the Act The Respondent had as much right to litigate before the Board the Union s attempt to expand the contract unit as the Union did to test its contrary view The net effect of the General Counsel's argument , if this complaint were to prevail was to force the Respondent as of April 30 1965 to risk a damage suit for contract violation in the event later events should prove it wrong on the merits of the Union s motion to amend No less significant is the fact that the record is barren of any meaningful evi dence of union animus in the company representatives Perhaps more important there is nothing to indicate the Respondent meant this action to discourage union membership in any shape or manner The very existence of a plausible and reason able explanation precludes speculation that might be justified in a vacuum I shall recommend dismissal of these 8 ( a)(3) allegations of the complaint E The refusal to bargain Clarification A further major confusion between the wording of the complaint and the sub stance of the hearing-both evidence and statements of position-on the one hand and the contentions in the General Cousel s brief on the other requires clarification before the merits of the refusal to bargain allegations can be understood As phrased the complaint which the General Counsel said was plain enough when the Respondent asked for further particulars recites three precise things the Corn pany did which are said to constitute violations of Section 8(a)(5) of the Act These are (1) direct dealings with Hillsboro employees respecting their jobs at Hillsboro and at Grove City (2) refusal to recognize Barbara Wright as grievance committee chairman and (3) refusing to discuss the transfer of employees from the old to the new plant with her All three of these matters arose when the Corn pany began to implement its hiring program for Grove City in mid April and later Charged generally with refusing to bargain with the Union the Respondent started at the outset of the hearing during cross-examination of a principal witness for the Government to prove that it in fact did engage in extensive bargaining on this very subject before the critical events It showed that there were three confer ences between company and union representatives on February 2 and on March 23 and 25 1965 initially at the Unions request to discuss the manner in which Hills boro employees should be selected for layoff Both parties sought to avoid the strict seniority provisions of the existing contract which bound the employees within departmental or classification group seniority and ignored companywide length of service After considerable discussion agreement was reached on this question- the sole subject of their talks-and both parties decided the matter must be voted on by the employees at a union meeting before it could be carried out The Corn pany prepared a written draft of the understanding and then told the union agents there could be no formal grievances processed in the manner of the existing con tract on questions arising from application of the revised layoff formula It sug gested instead informal consideration by the Company of individual complaints with no arbitration to follow 7 The Company also altered some of the language to permit management greater independent discretion in evaluation of the skill ele ment where pertinent In a vote taken on April 7 at a union meeting the employees rejected the pro posals By this time the scheduled move was very close in fact the toolroorn was moved to Grove City on about April 12 On the 8th the Union nevertheless requested further meetings and the Company replied it was too late A further request for more bargaining brought a suggestion by the Company that the matter be submitted to the employees as it stood (the Union was equivocal even at the hearing on whether the employees had ever voted on the proposal) Nothing fur ther happened and the Respondent proceeded meticulously to carry out the reduction in force pursuant to the precise seniority provisions of the contract in effect 7 Apparently the parties by that time were already bogged down by an accumulation of other grievances for the record shows that from the execution of their contract in July 1964 to March 1965 68 grievances were filed 42 reached step 3 and 19 went to arbitration It was this very great number of grievances which led to the unfair labor practice charge when the Company refused to consider them in groups 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his brief the General Counsel alleges that the proposals altering seniority arrangements were in fact agreed upon between the Union and the Company that the Respondent unilaterally introduced changes into the final special agree ment when it proposed a lesser grievance procedure and greater emphasis on skill and that later when it laid off employees according to the old contract with out again discussing the entire subject with the Union it unilaterally parted from such agreed upon special agreement all in violation of Section 8(a)(5) of the Act This is a totally novel theory of illegality so far as the complaint and the trial of the case are concerned Not only was the Respondent not put on notice that such a charge would be made but indeed the record in its entirety bespeaks utter assurance by the General Counsel that no such argument was being advanced In the circumstances I think the belated attempt to expand the substance of the refusal to bargain allegations of the complaint is improper and warrants no con sideration whatsoever Were I to consider the merits of this separate allegation appearing for the first time in the General Counsels brief I would find it without merit on the record as made Insistence Upon Waivers for Grove City Employment When the Respondent advised the several Hillsboro employees before April 28 that they were to report at Grove City on a certain specific date in May each was asked to sign a form slip as a requirement preliminary to starting work there The form called a waiver by the employees at the hearing read as follows I hereby request that I be placed on laid off status prior to less senior employees in my current Seniority Group on the date indicated below I fully understlnd that if my request is granted I therefore waive any and all seniority rights or privileges granted under the terms of the current labor agreement at the Hillsboro Plant for the purpose of this lay off I further request that the Company not recall me from laid-off status to future work available at the Hillsboro Plant in my Seniority Group unless such work as becomes available at a future date is for assignment on my current job classification and labor grade within my Seniority Group for a period reasonably anticipated by the Company to exceed thirty (30) working days A number of employees balked at signing although most of them did so When they protested Clark told them according to their testimony which he denied that the purpose was to protect the Company against the Union It is a compelling inference from the record as a whole that this was in large measure precisely the Respondents purpose in obtaining these signatures In view of all the testimony of all the witnesses I credit Fryman the ex grievance committee chairman who quoted Clark as explaining the form thusly He [Clark] said we can t lay you off under the contract until everybody with less seniority than yourself is gone This is simply to protect the Company from any labor charges that a union may make that you request a layoff and you will be laid off and rehired at Grove City Had the Company instructed the selected employees to leave Hillsboro one day and report at Grove City the next its actions could well have been construed by the Union as a selective layoff of Hillsboro employees out of seniority and there fore a violation of the contract there in effect The Union s insistence at that very moment that whatever the Company was doing did not comport with its own sense of justice certainly warranted at least a suspicion in management that such accusa tions would be leveled But if as the Company planned its hiring activities it was the employee who applied for the Grove City job there could be no such charge With these the undisputed facts the protection which the Company sought was not freedom from the statutory duty to deal with a bargaining agent but rather from annoying discussions which in the light of the realities could not possibly have merit There was another reason implicit in this waiver strategy an attitude which could also reasonably be described as a protective purpose From the very begin nmg the Company was determined that the jobs at the new plant should not be deemed part and parcel of the old bargaining unit it held to that position through out and consistently adheres to it today Any steps procedural or substantive pointing to separate identity and function of the two plants would tend to support this position in possible later litigation Conversely even ostensible transfer of ROBERTSHAW CONTROLS COMPANY 123 employees from the old to the new location, or recognition of continued seniority in job classification at Grove City, would serve the interests of the Union in later argument that the fabrication work or jobs never changed in terms of employees' conditions of employment . In that sense the Company definitely was preserving, if not protecting, its position vis-a-vis the Union. As it developed , and in view of the posture of the complaint case today, the waiver and request in question was not necessary at all . The Company was not, in April, laying off employees at Hillsboro ; the reduction in force did not start until May. Whatever departmental or job classification seniority these employees held there at the moment was therefore unrelated to their hire at Grove City. They had been invited to apply for jobs there if they wished, they had done so by explicit written application, and therefore to have them restate the personal request was superfluous and pointless . Unless, of course , it be to show, by more cumulative evidence, that employment at Grove City was comparable to any change of job at the will of an employee from one plant to another of any multiplant employer. At this point it is important once again to stress that the Respondent was under no obligation either to hire these persons at Grove City or to transfer them there. The General Counsel made absolutely clear, at the hearing at least , that the Respondent was under no obligation to discuss with the Charging Union any aspect of the hiring of these, or of any other applicants for employment at Grove City. The plainest part of his arguments during the trial is that the Union was entitled to be consulted regarding the conditions of employment-hire or layoff-of the Hillsboro employees , and only of these employees , and this means with respect to the jobs they held there, but not concerning any jobs they sought or might obtain at Grove City. Essentially, then, the matter of having the employees sign this waiver statement related to conditions of employment at Grove City and not to their tenure at Hills- boro, and as such was not a matter of concern to their bargaining agent. However, there is an implied suggestion in the General Counsel's argument , less veiled in the contentions of the Charging Union, that this unilateral dealing with the Hillsboro employees, sort of behind the Union's back as it were, evidences an intent by the Company deceitfully to prevent the Union from gaining a foothold in the Grove City plant. There is not sufficient evidence to warrant such an inference on this record. Not only is there no direct evidence of such purpose , but the explanation set out above affords a plausible and entirely proper reason. Moreover, the personal request technique pursued by the Respondent for smoothing the change of jobs for some individuals also served another proper purpose, as the employees themselves conceded . There are certain fringe benefits-such as insurance and vacation-which all employees of the Company enjoy regardless of how they may move from one plant to another and which are governed by companywide seniority as distinguished from any retention right these persons may have had at Hillsboro. Had they awaited layoff, as was predictably planned for them , and later gone to Grove City looking for work, they might have fallen in the category of new employees, and lost such privileges . By moving at their own request as proposed by the Respondent they avoided any break in employment. Accordingly, I find no merit in the allegation that by thus dealing with the employees seeking employment at Grove City the Respondent violated Section 8(a)(5) of the Act. Refusal to Recognize the Chairlady of the Grievance Committee As the Respondent had planned , its volume of business increased after the open- ing of the new plant, and in late May and thereafter it began to add employees to the assembly line operations in Hillsboro . Among others it invited certain employees from among those machine operators who had been laid off. Again they were asked to sign a form statement before starting work ; the form in this instance read as follows: I hereby request that I be recalled from Layoff to existing work available in seniority group #1 on a Temporary transfer basis, and assigned to Base Rate of the job to which assigned . I fully understand that under the provisions of the Collective Bargaining Agreement I can only possess seniority privileges in one Group at any one time, and that no seniority privileges are attained in Group #1 by this Temporary transfer, but that I will retain my Seniority privileges in my present seniority group during the period of this Temporary transfer and assignment of work, or until such time as my requested assign- ment would become an indefinite or permanent transfer. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The union contract , still in effect then , provided for 1 -year recall rights to the benefit of the laid-off employees , but as such rights were restricted within the departmental , or group classification categories , it is clear the Respondent was not obligated to hire them in preference to strangers for the new jobs created in assem- bly as they came into being. - There were, however, contract provisions governing the transfer of employees among the departments or from one seniority group to the others . The clauses distinguished between out-and -out transfer , in which case the employee carries his group seniority with him, and temporary transfers ( limited to 30 days), in which case, of course, he does not. The contract also expressly distinguished between temporary transfers "at the Company's direction," and tem- porary transfers at the employees ' request. In the former the employee was paid at his old rate , if it were higher; when transferred "at his request ," however, he received the lower of the two rates. Here, the Company's purpose in having the recalled employees sign a form statement is clear ; with the employee unequivocally conceding the return to work, or transfer, to have been at his request, as well as "on a temporary basis," all possibility of misunderstanding or of resort to grievances was eliminated . And the record shows that the practice of having laid-off employees sign such statements when recalled to temporary assignments in other seniority groups is an old one. Many such statements , dated before these events, were placed in evidence ; copies were sent to the grievance committee chairman as a regular practice. By May 1965, Wright had replaced Fryman as chairman of the grievance com- mittee. She heard that the Company was'asking recalled employees to sign a state- ment and asked Clark to show her a copy of what he was using. According to Wright, the personnel director replied: ". . it was between the employee and the Company. It had nothing to do with the Union . it wasn't contractual . . . it's none of your business." At the hearing Clark admitted he refused to show the form to the grievance chairlady Two of the ladies resented having to sign. Wilson and Lewis were called to work in August and signed for temporary work at their own request; they worked about 12 days and were laid off again. Recalled once again on September 14, as they sat in Clark's office and refused to sign the same statement a second time, they asked that the union steward be called in to join in the discussion Clark answered, "It's none of their business . this is between you and I." As Clark recalled the inci- dents, his reply was: "... I indicated to her by that time that well, if she wanted to talk to her steward she could do it outside my office all day if she wanted to but that I was simply offering her a job offer and if she didn't want it then that was up to her; that I didn't see any point in belaboring it any further." I find , as alleged in the complaint, that by refusing to show Grievance Chairlady Wright the form he was requiring employees to sign before being permitted to work, and by refusing to permit the union steward to be present and discuss the Company's demand for such signatures, Clark, on behalf of the Respondent, violated Sec- tion 8(a)(5) of the Act His direct dealings with the employees in these reassign- ments to work was literally a matter relating to their conditions of employment at Hillsboro-the Union's exclusive prerogative-regardless of whether the recall of employees be characterized as transfer or rehire. It is a play on words when the manager invites employees to the plant because workmen are needed and then wants them to "request" jobs. And it appears that the rate of pay for Wilson and Lewis, and perhaps other "recalled applicants" (1), was directly affected by the devious technique. In the circumstances the situation was tailormade for appropriate func- tioning of the bargaining agent or its representative. And whatever related consider- ations may have explained and even permitted the Company to require signed state- ments from Hillsboro applicants for employment at Grove City, no such justification can be advanced here based on the Union's contemporaneous contention involving the distant new plant.8 8 When Beulah Wilson, one of the two women who wanted a union representative to speak for them, refused to sign the statement demanded by Clark on September 14, she was, as the Respondent admits, denied employment for that reason. I find, as specifically alleged in the complaint, that by such discrimination in employment the Respondent violated Sec- tion 8(a) (3) of the Act with respect to her She was literally attempting to engage in collective bargaining with the Employer at that very moment, and Clark found the attitude unacceptable to hint. The fact that possibly the statement he demanded may not have done violence to the terms of the contract in effect cannot excuse his refusal to hire the woman in the total 'circumstances. ROBERTSHAW CONTROLS COMPANY 125 F. Illegal discrimination against Lewis in April There is one final incident, separately alleged in the complaint, which also in fact stood apart from the move to the new plant. Because Lewis was among the fabri- cation employees whose jobs were surely to be transferred to Grove City, and because her work was liked, Clark asked her during April whether she would accept a transfer to assembly work without waiting for layoff in May and possibly remain- ing with no work at all. She agreed and even signed the "waiver" statement indicating it would be at her request. Clark told her to start on the assembly line on Monday, May 3. Instead, on April 30, he changed his mind and told her the transfer was can- celed "because of the Union." Lewis was laid off on May 25 instead. Clark admitted the assignment and later change of heart, but said the reason why he canceled the assignment was because on the last workday before May 3 the fore- man told him work had slacked off. This, however, was April 30, the same day that Clark and other supervisors canceled the 9 or 10 orders to other employees to report at Grove City, all for the expressed reason that the Union had filed documents embarrassing the Company. The record shows other employees were also being transferred about this time to assembly. Moreover, Clark is the man who had once expressed himself as "fed up to here with the damned Union," and wanted "the God- damned Union" to "keep their nose out of things." I credit Lewis and find that the personnel manager told her she was being denied continued work in assembly "because of the Union," and that his ieal reason was the filing of the motion to amend certification that day. That matter having no relationship with the Hillsboro plant or with the employment situation there, I conclude that by refusing to employ Lewis on assembly, and thereby causing her outright layoff on May 25, the Respond- ent violated Section 8(a)(3) of the Act. IV. THE PETITION TO AMEND CERTIFICATION Facts The bargaining unit in which the Board conducted an election in 1962, in which the UAW was certified in consequence, and which underlay the 1964 collective- bargaining agreement, was the usual production and maintenance grouping of employees, but expressly limited to such employees "at the Employer's plant in Hillsboro, Ohio." The petition of the UAW-Case 9-CA-1-seeks to amend its out- standing certification by adding language expressly including all production employ- ees now employed at the Company's Grove City, Ohio, plant. The Company manufactures and sells electrical switches and relays; its method of operation traditionally divides the work into fabrication and assembly. Fabrication means production of parts by use of diversified machines-drill presses, turret lathes, grinders, milling machines, etc. A different kind of work groups employees on assem- bly lines, where they join the fabricated parts into the relays and switches. There is also a toolroom, used partly for production and partly for the usual machine main- tenance and repair work, and a shipping department. All these functions were for some time performed at Hillsboro. As already explained above, during April and May of 1965, the Company moved virtually all its fabrication work-including the presses and machines themselves-the toolroom-with its machines, and the ship- ping department, to its newly constructed plant in Grove City, a suburb of the city of Columbus, 65 miles away. Hillsboro is a small town. In terms of the work performed this was strictly a geographical change. All of the fabrication machines, consisting of 20 production presses, were moved to Grove City, and four others-three screw machines and one molding press-were added there. Instead of the fabricated parts moving to assembly merely by going from one part of the Hillsboro plant to the others, they now go by truck from Grove City to Hillsboro; after the final products are assembled they are trucked back to Grove City, to which the old shipping department was also transferred. The Grove City plant now also houses other company offices previously located at a rented building in Columbus; these include accounting, engineering or product development, executive department, etc., and sales. The diversified employees engaged in these latter nonproduction activities are not involved in this proceeding, for the Union neither claims nor desires to represent them. The purpose for the entire move was to further general expansion plans, achieve efficient consolidation of administra- tive as well as production activities, obtain access to necessary electrical power, and enjoy the benefit of a broader and more skilled labor market. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In April, before any machines or supervisory personnel were transferred to Grove City, there were 274 production and maintenance employees at work in Hillsboro; 108 in the affected departments-fabrication, shipping, and toolroom-and 166 in the remainder-mostly hourly paid assembly workers. In October, at the time of the hearing on the Union' s petition , there were a total of 213 production and mainte- nance employees at Hillsboro, 205 in assembly and only 8 in those departments which had been moved away. The increase in assembly workers resulted from general increase in the volume of business . By October there were also 160 hourly paid employees at Grove City: 15 toolroom, 10 shipping, 9 inspection, 6 maintenance, 51 punch press, 35 machine operation, and 35 molding. This is the group performing fundamentally the fabrication work previously done at Hillsboro. Not one of this total of 160 persons had previously worked at Hillsboro. Management remained essentially the same. A number of foremen and other lower production supervisors went to Grove City and continued to do the same type of work they always did. As before, one manufacturing manager and one general manager supervise both locations and all production work. As before, there is one labor relations director, and labor relations and personnel policies are still uniform throughout the division-meaning both Grove City and Hillsboro. The men holding these highest posts divide their time between the two locations. There is a single accounting, bookkeeping, and payroll office. In an attempt to prove that the nature of the fabrication work performed has changed between what was being done at the old and what is now fabricated at Grove City, the compny officers spoke of 25 new types of switches and relays which the Company never made before. It then developed that as of the present time these are development aspects of the work, only pilot, or experimental models actually being made, and not a real change of any substantial significance. In fact, the Com- pany has always, as it is doing now, experimented with improved and novel switches, and its products are always keeping ahead of the market. The record indicates that perhaps as many as 500 parts normally are produced to assemble the diversified line of switches and relays sold by the Company. Variations of style or function are therefore inevitable and cannot alter the basic fact that what was moved was fabri- cation, and that what is being performed at Grove City is not really different from the work of the past. It is clear there are certain parts the Company used to purchase from contractors because it was not equipped to produce them. Now, with the three new screw machines in place at Grove City, much of this is made by the Company itself instead. In sum, the assertion by General Manager Bogengrief at the hearing that the Company always had some fabrication and assembly work done at one of its old locations in Columbus is not borne out by the facts. Recommendation I recommend that the petition to amend the certification be denied. As the Union itself concedes in its brief, decision on the question whether a newly established plant or location may appropriately be deemed an accretion to an existing bargain- ing unit requires consideration of "the entire congeries of facts in each case." The governing rule was set out in Great Atlantic and Pacific Tea Company (Family Sav- ings Center), 140 NLRB 1011, 1021: In determining that a newly established facility or operation is an accretion to an existing unit, the Board has given weight to a variety of factors, such as integration of the operations; centralization of managerial and administrative control; geographic proximity; similarity of working conditions, skills, and func- tions; common control over labor relations ; collective-bargaining history; and interchangeability of employees. Obviously, cases in which all of these, or only these, positive accretion factors are present are rare. For, the normal situation presents a variety of elements, some militating toward and some against accre- tion, so that a balancing of factors is necessary. Baldly stated, what is really involved here is whether or not the 160 employees working at Grove City, recruited from and living in a labor market totally different and considerably distant from Hillsboro, should be represented in collective bargain- ing in consequence of Board fiat, or should be afforded an opportunity to determine for themselves, possibly by majority vote, the question concerning representation. Tnis is not the same question presented when the Board is asked to decide whether one plant alone, or two plants combined, may appropriately constitute a single bar- gaining unit. It may well be that were the Union here seeking an election among all ROBERTSHAW CONTROLS COMPANY 127 of these production and maintenance employees in a single voting group the Board might agree in view of the integrating factors and the consequent community of interest notwithstanding the geographic separation of the two plants and the sepa rate hiring There would be no danger in such case of one group swallowing as it were a very substantial segment of the unit without affording it the fundamental right to express its views The great number of such unit determinations by the Board which are cited in the Union s brief are therefore inapposite here The total lack of any interchange or transfer of production and maintenance employees between the two separate plants the fact that none of the Grove City workers was ever employed at Hillsboro or represented by the Union the not insig nificant differences in that their respective skills-reflected in higher wage rates prevailing at Grove City and the meaningful distance between the two locations swing the balance in this case against the also relevant factors of common higher supervision single purpose labor relations policy and interflow of products from fabrication to assembly and back again to a single shipping department It is true that for practical purposes the process of production has not changed The same products are made the same machines are used and integration of all the work functions continues as before But it is employees whom a union represents not machines Had any substantial number of Hillsboro employees accompanied their machines to Grove City a different picture would have appeared On the record in its entirety including the fact there is no allegation that the failure of the Company to transfer employees to the new plant was in itself illegal or in any sense improper I find the Unions petition to amend the certification to be without merit V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III above occurring in con nection with the operations of the Respondent set out in section I above have a close intimate and substantial relation to trade traffic and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce VI THE REMEDY Having found that the Respondent has committed certain unfair labor practices I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action designed to dissipate the effect thereof The Respondent having refused to bargain in good faith with representatives of the Union upon request it must be ordered to do so on request As the Respondent has refused employment to Kathleen Lewis and to Beulah Wilson with an illegal motive it must be ordered to reinstate them to their former or equivalent positions and to make them whole for any loss of earnings they may have suffered because of the illegal discrimination against them in their employment Backpay shall be computed in accordance with the formulas and the methods prescribed by the Board in F W Woolworth Company 90 NLRB 289 and the assessment of interest shall be computed in the manner prescribed by the Board in Isis Plumbing and Heating Co 138 NLRB 716 In view of the nature of the unfair labor practices committed the commission of similar and other unfair labor practices reasonably may be anticipated I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act Upon the basis of the foregoing findings of fact and upon the entire record of the case I make the following CONCLUSIONS OF LAW 1 The Respondent is an employer within the meaning of Section 2 of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 All production and maintenance employees including truckdrivers employed at the Respondents plant in Hillsboro Ohio but excluding timekeepers laboratory technicians office clerical employees and all guards professional employees and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 International Union United Automobile Aerospace and Agricultural Imple ment Workers of America UAW-AFL-CIO was on May 1 1965 and at all times 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. By refusing to recognize Barbara Wright , the duly selected grievance chairlady or steward , and thereby refusing to recognize and bargain with the Union as the representative of the employees in the aforesaid unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By refusing to employ Kathleen Lewis on May 25, 1965 , and Beulah Wilson on September 14, 1965 , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By the foregoing conduct the Respondent has interfered with, restrained, and coerced employees in their rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] International Brotherhood of Electrical Workers, Local 1527, AFL-CIO and McCall Corporation and Dayton Typographical Union, Local No . 57, International Typographical Union, AFL- CIO. Case 9-CD-80-2. October 19,1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by McCall Cor poration, herein called the Company, alleging that the International Brotherhood of Electrical Workers, Local No. 1527, AFL-CIO, herein called the Respondent or IBEW, had violated Section 8(b) (4) (D) of the Act by inducing or encouraging employees of the Company to cease work for the purpose of forcing or requiring the Company to assign the work in dispute to employees who are mem- bers of the Respondent rather than to employees who are represented by the Dayton Typographical Union, Local No. 57, International Typographical Union, AFL-CIO, herein called the ITU. A hearing was held on June 7, 1965, before Hearing Officer Donald G. Logsdon. All parties appeared at the hearing and were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Company, the Respondent, and the ITU. Upon the entire record in the case, the National Labor Relations Board makes the following findings : I. THE BUSINESS OF THE COMPANY The McCall Corporation, a Delaware corporation , is engaged in the publishing and printing business , employing 5,600 people repre- 161 NLRB No. 10.