Duncan Foundry and Machine Works, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1970

186 N.L.R.B. 529 (N.L.R.B. 1970)

DUNCAN FOUNDRY AND MACHINE WORKS, INC. 529
Duncan Foundry and Machine Works, Inc. and Mrs.
Melvin T. Bell and Boatmen 's Bank of St. Louis,
Party in Interest . Case 14-CA-5291
under the plan and any discriminatory withholding of
benefit thereafter will be subject to remedy through
ordinary complaint procedures.
November 10, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 4, 1970, Trial Examiner Josephine H. Klein
issued her Decision in the above-entitled proceeding,
finding that the Respondents had not engaged in
certain unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed,
but with jurisdiction retained in the Board to reopen
the proceedings and reconsider the complaint either
upon the Board's own motion or upon motion made
by any party based on facts occurring hereafter.
Thereafter the Respondent and the General Counsel
each filed exceptions to the Trial Examiner's Decision
accompanied by supporting briefs, and the Charging
Parry filed exceptions to the Trial Examiner's Deci-
sion and a statement in support thereof.
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 this case to a three-member
panel.
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, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.
The complaint alleged, inter aria, that the Respon-
dent discriminatorily refused, and continues to refuse,
payment of M.T. Bell's share in its profit-sharing plan
to his widow because of his union activity. The Trial
Examiner recommended that the complaint herein be
dismissed but that jurisdiction be retained because
"relevant questions remain unresolved." We agree
with the Trial Examiner that the issue of discrimina-
tion has been prematurely raised as the amount due
under the profit-sharing plan is at present undeter-
minable. However, when litigation of the proceedings
in the related cases referred to in the Trial Examiner's
Decision has terminated, either by compliance or by
court order, the Respondent will have possession of
all facts, including those relevant to the status of
strikers both before and after the eligibility date,
necessary to determine the amounts of all shares
1 Respondent 's unopposed motion to correct record is hereby granted
2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: Upon a charge
filed against Duncan Foundry and Machine Works, Inc.,
Respondent, by Mrs. Melvin T. (Bertha) Bell, on Septem-
ber 18, 1969, a complaint was issued by the Regional
Director on February 5, 1970. Pursuant to due notice, a
hearing was conducted on the complaint in St. Louis,
Missouri, on March 9, 1970. All parties, including
Boatmen's Bank of St. Louis, Party in Interest, were
represented by counsel and were given opportunity to
present evidence and to examine and cross-examine
witnesses. The parties waived oral argument and thereafter
bnefs were filed by the General Counsel, the Charging
Party, and Respondent.
Upon the entire record,' observation of the witnesses,
and consideration of the bnefs, the Trial Examiner makes
the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
It is admitted and has previously been determined by the
Board that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act2 and that United Steelworkers of America, AFL-CIO,
the Union here involved, is a labor organization within the
meaning of Section 2(5) of the Act. Duncan Foundry &
Machine Works, Inc., 176 NLRB No. 31; idem, TXD-83-70
[185 NLRB No. 2].
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Issues
Mrs. Bell, the Charging Party, is the widow of Reverend
Melvin T. Bell, a former employee of Respondent. In
March 1969, shortly after Reverend Bell's death, Mrs. Bell
requested payment of her deceased husband's share of the
Company's profit-sharing fund. She was informed that no
payment could be made at that time because of inability to
determine amounts payable. A second request by Mrs. Bell
in April evoked a similar reply. In September 1969 Mrs.
Bell's attorney, who also represents the Union in other
proceedings involving Respondent, requested payment on
29 U S C. Sec 151, et seq^)
186 NLRB No. 62
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her behalf and received the same response. To date no
payment has been forthcoming.
The complaint alleges that Respondent has withheld
payment to Mrs. Bell because of her husband's activities on
behalf of the Union and because Respondent's employees
engaged in an economic strike. Respondent asserts that all
payments from the fund have been suspended on a
nondiscriminatory basis because it is presently impossible
to determine the amount payable to any claimant.
Respondent also maintains that the complaint is barred
under Section 10(b) and that Respondent is powerless to
make payment because the profit-sharing fund is controlled
by an administrative committee separate from
Respondent.3
In the extensive litigation in the representation proceed-
ing and the ensuing refusal -to-bargain unfair labor practice
proceeding, Respondent has maintained that 1865 strikers
were ineligible to vote in the election because they were not
employees at the eligibility date, i.e., during the payroll
period ended October 21, 1967. The major claimed bases of
noneligibility were, generally stated, that some employees
had quit Respondent's employ; some had been permanent-
ly replaced or their jobs had been eliminated ; and some had
been guilty of strike violence which disqualified them for
employment. All but six of Respondent's challenges were
overruled by the Regional Director, whose rulings were
affirmed by the Board.
B. The Facts
1. Labor relations and litigation
Employees Association of Duncan Foundry & Machine
Works, Inc., an independent union, was the certified
representative of Respondent's employees from 1942 until
July 19, 1966, when, after winning an election over the
independent union, the Steelworkers was certified. Case
14-RC-5356. On January 29, 1967, the Steelworkers Union
called an economic strike in support of its contract
demands. In September 1967, while the Steelworkers' strike
was still in progress, Respondent and the independent
union filed petitions for an election. Cases 14-RC-5787
and 14-RM-327, consolidated. An election was held on
January 26 through 28, 1968. The Steelworkers' Union won
the election and thereupon, as of January 31, ended the
strike. After extended litigation,4 the Union was certified,
for the second time, on December 4, 1968. However,
Respondent refused to recognize and bargain with the
Union and an unfair labor practice proceeding ensued.
Case 14-CA-5216 [185 NLRB No. 21. On February 10,
1970, Trial Examiner George A. Downing issued a Decision
holding Respondent guilty of refusing to bargain, in
violation of Section 8(a)(5) of the Act. TXD-83-70 [185
NLRB No. 21. That case is now pending before the Board
on Respondent's exceptions to the Trial Examiner's
Decision.
On May 29, 1969, the Board found Respondent guilty of
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act in discriminatorily denying seniority rights and
vacation pay to strikers in 1967 and 1968. 176 NLRB No.
31 (Case 14-CA-4608). In Case 14-CA-5216, Trial
Examiner Downing found Respondent in violation of
Section 8(a)(3) since May 1, 1969, by its admitted conduct
in pursuing the vacation pay practice found violative in the
Board's prior decision.
3 Respondent 's answer to the complaint stated that "The Employer is
precluded from making payment from said Plan, inasmuch as it is
prevented from doing so under applicable state and federal statutes." No
support was offered for this contention and it is not pursued in
Respondent's brief.
4 The chronology in the representation proceeding is summarized in the
Trial Examiner's Decision in Case 14-CA-5216 [185 NLRB No. 21.
5 As found in 176 NLRB No. 31, of Respondent's approximately 350
employees, 244 went out on strike. Around 44 returned to work before the
end of the strike and 40 were reinstated thereafter.
6 The plan was actually established by Respondent's parent corporation,
2. The profit-sharing plan
In 1960 Respondent6 established a profit-sharing plan to
avail itself of the advantages of sections 401-404 of the
internal revenue code . Although Boatmen 's National Bank
of St. Louis is named as trustee of the fund, it serves only as
a custodian , with all substantive power in an administrative
committee,7 which consists of Respondent's president and
its personnel manager.8
Generally stated, all employees9 with at least 1 full year
of service participate in the plan. As of November 30 of
each year, the Company, in its sole discretion, decides how
much, if any, money it will contribute to the profit-sharing
fund for the fiscal year just ended. As of November 30 each
year the assets of the fund are allocated to the accounts of
the participating employees. Employees' proportionate
shares are determined on the basis of their years of service
and their compensation. Employees with 6 or more years of
coverage in the fund who quit or are terminated and the
beneficiaries or estates of such employees who die during
the year are paid a portion of the amounts cumulatively
allocated to them as of the previous November 30.
Employees with 30 years' service or who are 60 years old
receive 100 percent. Employees terminated with less than 6
years' participation do not receive any payment from the
fund. The portion paid to other employees varies from 10
percent for those with 6 years' participation to 100 percent
for those with 15 full years or more of participation. When
an employee dies or is terminated, he or his beneficiary is
paid the vested percentage of the amount allocated to his
account as of the last preceeding November 30; the rest of
his allocated share is deemed forfeited and is reallocated
among the other participants on the next November 30.
Thus an employee's share as computed on each November
30th includes a pro rata part of any amounts forfeited by
terminated employees during the preceding 12 months. In
addition, each employee's account reflects a pro rata share
Illinois Stoker Company . This fact is of no importance to the present
proceeding.
I "The Administrative Committee shall have complete control of the
administration of the profit -sharing plan herein embodied , with all powers
necessary to enable it properly to carry out its duties in that respect. . . . It
shall decide all questions relating to the eligibility of employees to
participate in the benefits of this Trust."
8 "Such Committee shall consist of ... the . . . President or Chief
Executive Officer of the Company . . . [and] an Employee - Participant
appointed by the Company."
9 Including officers and executive personnel.
DUNCAN FOUNDRY AND MACHINE WORKS, INC. 531
of appreciation or depreciation in the value of the fund's
assets and expenses of administration.
Claims for terminated employees' shares were paid
according to the terms of the plan until November 30, 1967.
Included in such payments was one of $142.17
(representing 10 percent of his account as of November 30,
1966) on June 22 , 1967, to employee Eddie W. Arnold, who,
while on strike, signed a quit slip . In the representation case
Arnold was later found to have been an employee entitled
to vote in the election in January 1968. So far as appears, no
other employees who received payment from the fund
during the strike attempted to vote in the election in
January 1968.
On or about November 30, 1967, Respondent decided
not to make any contribution to the profit -sharing plan for
the fiscal year then ending . In addition, Respondent's
president, Sam W . Duncan , and its personnel manager, E.
J. Green , decided that no further payments would be made
from the fund to employee-participants . According to
Respondent , this decision was based on uncertainty as to
the amounts allocable , the uncertainty arising out of the
dispute between the parties as to the employee status of the
strikers , an issue first sought to be raised by Respondent in
the preelection hearing in October 1967.10
No general announcement was made to the employee-
participants of the decision to suspend payment of all
claims . However, Green's testimony was undisputed that
each person making a claim since November 30, 1967, has
been so advised . Since that date around 50 employees have
been terminated for various reasons. Included among such
terminated employees are several unit employees who did
not join the strike and some nonunit employees . None of
them has been paid anything from the profit-sharing fund.
3. Melvin T. Bell
Reverend Melvin T. Bell commenced work for Respon-
dent in 1941. As of November 30, 1966, his allocated share
of the profit-sharing fund was $1,504.33. He went out on
strike in February 1967. In the election in January 1968,
Respondent, challenging Bell's ballot, maintained that his
employment, along with that of other strikers, had been
terminated in September 1967. This challenge was rejected
by the Regional Director and the Board.
After the termination of the strike, Bell applied for
reinstatement.11 He was not reinstated. He died on
February 14, 1969.
On or about March 5, 1969, Mrs. Bell, beneficiary of the
employee's interest in the profit-sharing account, requested
payment. E. J. Green, Respondent's personnel manager,
informed her that no employee-participant claims were
being paid from the fund at that time because it was
impossible to determine the amounts due to anybody.
According to Mrs. Bell, Green said the fund was tied up
10 This fact appears in the Regional Director's Decision and Direction
of Election issued on October 30, 1967. Counsel for the Charging Party is
thus not accurate in contending , as he does in his brief, that "on November
30, 1967... the status of strikers had not even been put in question!"
II In Case 14-CA-4608 (176 NLRB No. 31) the Board found that "On
January 31, 1968, ... the Steelworkers on behalf of the strikers offered
unconditionally their return to work ." On February 29, 1968, Bell
individually advised Respondent , in writing, of his desire and availability
for work.
because of Board proceedings. Green testified that he
assured her that "there was money in the profit sharing plan
... and the payment would be made to her as soon as we
were able to calculate it." On or about March 19, Mrs. Bell
again requested payment and received the same reply. On
September 9, counsel for Mrs. Bell,12 addressed a demand
to the Bank, as trustee of the fund. The Bank replied that it
had forwarded counsel's letter to the administrative
committee for advice. On September 18, with no payment
forthcoming, counsel filed the present charge on Mrs. Bell's
behalf.
D. Discussion
1. Section 10(b)
The complaint alleges that "Since on or about a date
unknown to the Regional Director in March 1969, and
continuing to date Respondent, after appropriate request,
has failed and refused to cause payment to be made." The
evidence establishes that it was on March 5 that Mrs. Bell
first requested payment of Green. Thus Reverend Bell died
and Mrs. Bell made her first demand for payment more
than 6 months before September 18, when the charge was
filed. Respondent affirmatively pleaded Section 10(b) as a
defense to the complaint.
In its brief, Respondent argues that the decisive date is
November 30, 1967, when the decision was made not to pay
any claims for the indefinite future. The Examiner
expresses no opinion as to whether the decision made in
November 1967, whether generally announced or not,
could have constituted an unfair labor practice. Whatever
the answer to that question may be, subsequent refusal to
pay a particular claim when it became due is an
independent operative and actionable event. Swift Service
Stores, Inc., 169 NLRB No. 33.
The plan provides that distribution thereunder shall be
made "on or before ninety (90) days after the Employee-
Participant shall become entitled to the benefit" and
payment to a deceased employee's beneficiary within 6
months of proof of death "shall be conclusively deemed to
be full compliance." Thus payment of Bell's share was not
legally "due" until May 15, 1969, 90 days after his death, at
the earliest. Accordingly, a charge alleging an unlawful
refusal to pay was not time barred in September 1969.13
2. Respondent's responsibility
In its brief, Respondent says:
Though the Complaint in the subject case runs
against the Company, the record evidence establishes
that it was not the Company which made the decision
affecting Mrs. Bell's claim, rather it was the Committee
12 Mrs. Bell's counsel represents the Union in other proceedings
involving Respondent.
13 Because of this holding , it is unnecessary to pass on the contention,
advanced by the General Counsel at the hearing and by the Charging Party
in her brief, that Respondent's withholding of payment is a "continuing
violation ." In addition , the present Decision herein is not to be read as
implying that any charge related to a claim against the fund would be
barred 6 months after distribution became due under the terms of the plan.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that decided not to pay out claims after November 30,
1967.
As previously noted, the administrative committee, which
has complete control of the administration of the fund, is
composed of the president and personnel manager of the
Company. The evidence establishes, as would be expected,
that Personnel Manager Green has never disagreed with the
decisions of President Duncan. The plan expressly provides
that the committee need not even go through the formality
of holding meetings. Duncan alone determines the
company contributions which constitute the fund' s assets.
Respondent's argument that the Company and the
administrative committee are separate , independent entities
and that "in no way does the Company exercise its
discretion over the operation of the Plan," is rejected as
frivolous.
3. Alleged misconduct
The complaint alleges that Respondent has "failed and
refused" to have payment made because of Reverend Bell's
union activity, because employees engaged in an economic
strike, "and because of Respondent's insistence that
payment from the Plan fund will not be affected until
judicial determination of the certification of the Union" in
the representation case.
There is no evidence that Reverend Bell had been
particularly active on behalf of the Union. Nor is there any
basis for finding that Respondent was motivated by any
special animus against Bell as distinguished from all the
other strikers. However, the record in this case, including
decisions in other cases, of which the Examiner takes
official notice, clearly establishes Respondent's strong
antiunion animus and its determination to travel every
available avenue to rid itself of the Union.
Basic to Respondent's strategy is its contention that Bell's
employment, along with that of the other strikers, was
terminated in September 1967, before the eligibility date for
voting in the election. That contention has been rejected by
the Board both in the representation proceeding and in
Case 14-CA-4608 (176 NLRB No. 31).
The representation case is not ripe for judicial review,
since the refusal-to-bargain case (14-CA-5216) is still
pending before the Board. And Case 14-CA-4608 has not
as yet been submitted to a court for enforcement or review.
As the General Counsel concedes, the amount due Mrs.
Bell depends, in part at least, on the employee status of the
strikers. At the hearing, the General Counsel urged that
Respondent be required forthwith to pay Mrs. Bell the
amount vested in Mr. Bell as of November 30, 1966 (10
percent of his allocated account), with further payment to
14 Personnel Manager Green testified in part as follows : "Q. [By
General Counsel J Did you and Mr. Duncan decide when this was going to
happen that you could make the proper calculations, have you decided that
that's not going to happen until you get a final decision in the first and
second cases before the NLRB, is that what you decided? A. We will
decide that as soon as we know who is a participant and who isn't a
participant . I told this same thing to everyone on this list that have talked
to me about it . We want to pay as soon as we can but we can't pay until we
can calculate it and we can't calculate it until we can tell them who has left
in the period so they can make the calculations . Q. And you have no idea
now whether it is going to be ten years from now when you can make those
calculations? A. No, sir.. . .TRIAL EXAMINER : . . . What is it going to
be made when final calculations could be made. Respon-
dent's counsel conceded "that Bell is entitled to 10 percent
of $1,500 . . . He's entitled to it now." But counsel
contended further that Respondent could not be compelled
now to make "part payment" since the amount "vested" on
November 30, 1966, would be subject to fluctuation if it
were later found that Bell had retained his employee status.
According to Respondent's counsel, it was at least
theoretically possible that the $150 "vested" as of
November 30, 1966, could decline with time through
depreciation in the value of the fund's assets and expenses
of administration. In his brief, the General Counsel
abandons a request for any immediate payment and
requests "a remedial order requiring that payment of
benefits be made individually with the amount to be fixed
in the compliance stage of proceeding."
In his brief, the Charging Party's counsel "suggests that
the entire amount of Rev. Bell 's fund has vested since he
remained an employee until his demise." However , Bell's
employment status was not litigated in the present
proceeding. To the extent that it has been or is being
litigated in other proceedings, no such finding has become
"final" by judicial enforcement. Additionally, a finding as
to Bell's employment status would not in itself necessarily
permit calculation of his profit-sharing entitlement, since, if
he remained an employee until his death, the amount
payable would depend on facts subsequent to November
30, 1967, including forfeitures. And the amount made
available by forfeitures will depend in major part on the
employee status of other strikers.
In short, it is clear that so long as there are unresolved
issues concerning the employment status of Bell and other
employees, the amount payable to Mrs. Bell, or any other
claimant, cannot be determined. To some extent, these
issues are now in the course of litigation in the other
proceedings discussed herein.
Another problem, however, suggests itself . As indicated
by Trial Examiner Downing in his Decision, Case
14-CA-5216 will not result in a finding concerning the
employment status of the nonreinstated strikers beyond
October 21, 1967, the eligibility date for voting in the
January 1968 election. Although Respondent's representa-
tives were far from forthright at the hearing, they were at
apparent pains not to promise payment upon final decision
in the litigation now pending.14 It was at least intimated
that, if it is finally decided that Bell and the 180 other
nonreinstated strikers were employees eligible to vote in the
election, Respondent may then seek to establish that their
employment was terminated at a later date, but before
Reverend Bell's death or the date as of which his share in
the fund was to be computed.15 Respondent's course of
depend on? THE WITNESS: Just as soon as we know who is a participant
and who isn't a participant .... TRIAL EXAMINER :. . . what event are you
waiting for before you send notice to the bank? THE WITNESS : I don't
believe I am in a position to answer that . All we want to know legally is
who is a participant and who isn't.... I'm not a lawyer and there may be
a number of different things that could affect this, and once it is effective
legally, we hope to make payments , and it is just a matter that we have to
know who is and who isn't and for how long, and then we will make
payments right away."
15 There would be two potential accountings (November 30, 1967, and
November 30, 1968) between the eligibility date (October 21, 1967) and
Bell's death (February 1969).
DUNCAN FOUNDRY AND MACHINE WORKS , INC. 533
conduct to date indicates that it might well seize on any
theory or maneuver that legal imagination can devise, as a
pretext for avoiding or at least indefinitely postponing
payment of the present claim.
F. Conclusion
The Trial Examiner has no doubt that Respondent's
failure and refusal to pay Mrs. Bell's claim is motivated in
large part by a desire to defeat the Union and to penalize
the strikers . As such , it may be violative of Section 8(a)(1)
and (3 ) of the Act even though , as asserted by Respondent,
nonstrikers and nonunion members have also been
innocent victims. See, e.g., Wilbraham Manufacturing Corp.,
174 NLRB No. 41; Chevron Oil Co., 182 NLRB No. 64;
Wood Manufacturing Co, 95 NLRB 633, 641; Somerset
Classics, Inc., 90 NLRB 1676, 1678-79.16
All hough the Trial Examiner is satisfied that Respon-
dent 's conduct involved in this case is dictated in
substantial part by unlawful considerations , the fact
remains that the amount distributable to Mrs. Bell cannot
now be determined and Respondent is now in other
proceedings litigating at least some issues germane to the
present situation. The Trial Examiner is of the opinion that,
unless it is determined that Board and/ or court processes
are being abused (Cf. N.L. R.B. v. Smith &IWesson , 424
F.2d 1072 (C.A. 1); N.L.R B. v. Athbro Precision Engineer-
ing Corp, 423 F.2d 573 (C.A. 1)), Respondent cannot be
said to have committed an unfair labor practice by
deferring payment of Mrs. Bell's claim so long as relevant
questions remain unresolved and Respondent is taking
reasonable steps to have them resolved.
The Trial Examiner is not holding that Respondent can
indefinitely postpone the day of reckoning. A time may be
reached when Respondent no longer can have any
reasonable doubt as to the amount due to Mrs. Bell for her
husband's share of the Company's profit-sharing plan.
Respondent's conduct to date establishes the desirability of
administrative action to assure that Respondent acts with
appropriate dispatch to remove the existing impediment to
payment of an employee benefit admittedly due.
Appropriate action in the present case can best be
determined in the light of developments in other pending
proceedings . In this respect the case is not unlike situations
in which Board action may depend on the results of
arbitration proceedings . In such cases the Board has
deferred action ')Dubo Manufacturing Corp., 142 NLRB
431) or retained jurisdiction (Local 485, IUE (Automotive
Plating Corp.)„ '170 NLRB No. 121; Port Drum Co., 170
NLRB No. 51, modified 180 NLRB No. 90). Accordingly,
the Trial Examiner will recommend that an order be issued
dismissing the complaint but retaining jurisdiction in the
Board to reopen the proceedings either on the Board's own
motion or on motion of any of the parties.
CONCLUSIONS OF LAW
1. Respondent , Duncan Foundry and Machine Works,
Inc., is an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act, and United
Steelworkers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. The evidence fails to establish that Respondent has
refused or failed to pay Mrs. Melvin T. Bell the share of
Respondent 's profit -sharing fund due her as the widow and
beneficiary of deceased employee Melvin T. Bell in
contravention of Section 8(a)(1) and (3) of the Act.
3. The record establishes that it is appropriate and
advisable for the Board to retain jurisdiction to reconsider
appropriate action in the light of subsequent events.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that the complaint herein be dismissed
with jurisdiction retained in the Board to reopen the
proceedings and reconsider the complaint either on the
Board's own motion or upon motion made by any party
based on facts occurring hereafter.
i6 11 a violation were found , the affirmative remedy would undoubtedly
be the same whether or not Respondent was found to have violated Sec
8(a)(3) as well as Section 8 (a)(1) Coca-Cola Bottling Co, 97 NLRB 151,
152