Climate Control Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 751 (N.L.R.B. 1980)

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